Commission blocks TTIP ECI and public debate Analysis by legal scholar James Organ

October 23, 2014 News

The refusal to register the Stop TTIP initiative is the latest in a long line of Commission decisions restricting the scope and the democratic potential of the ECI.[1] This short piece reviews the unsatisfactory justification for this refusal and comments on the democratic implications for, and the Commission’s attitude towards, the ECI instrument itself.

The Commission has refused to register the Stop TTIP initiative, in seeming contradiction of the previously registered Swissout initiative, for two reasons.[2] The first is that the Commission considers that an ECI cannot be used to ask the Commission to make a proposal in relation to a ‘preparatory act’, such as a Council decision authorising negotiations. Although the decision taken by the Council to start negotiations is a legal act of the Union,[3] the Commission believes that it is not an ‘appropriate proposal’ for an ECI because it does not directly modify EU law. The ECI Regulation, however, does not exclude proposals that only deploy legal effects between EU institutions and do not directly modify EU law. The regulatory requirement is just that the Commission be invited to make any appropriate proposal ‘on matters where citizens consider that a legal act of the Union is required’; there is no specific requirement that it be to modify EU law. Furthermore, the Commission has registered ECI proposals previously that did not directly modify EU law; for example the High Quality Education for All initiative and the Universal Basic Income initiative; and the Commission have deemed policy consultation as an appropriate response to a successful ECI through their response to the Right to Water initiative.

If this exclusion of preparatory acts from ECI proposals is maintained, it will mean that citizens are excluded from using the ECI process to try to influence the agenda of any external treaty, such as the TTIP, that is being negotiated by the EU. This excludes the ECI from one of the most important roles of the EU, one where it is acting almost as a form of federal state, and is a significant restriction on the scope and democratic potential of the ECI to try to influence the wider EU policy agenda.

The second reason the Commission gives for refusing to register the Stop TTIP initiative is that a proposal that invites the Commission to not act or to stop something from occurring, in this case to repeal the mandate for the TTIP negotiations and not to conclude CETA, is not admissible under the ECI Regulation. Again, there is no express exclusion of legal acts of this sort in the ECI Regulation. This exclusion is asserted in the registration refusal as a corollary of the positive requirement stated in the Regulation that an ECI ‘may only invite the Commission to submit an[y] appropriate proposal for a legal act considered necessary by the citizens’. However, for an initiative to be refused registration it should be on the basis that it fails to meet one of the four criteria in Art 4(2) of the ECI Regulation. The refusal to register the Stop TTIP initiative only refers to the criterion of Art 4(2)(b) Reg 211/2011 to support its decision.[4] This states that for an ECI proposal to be refused registration it must ‘manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union’. Given that it is within the Commission’s powers to propose a termination of negotiations to the Council and it is a legal act of the Union, it is difficult to see how this criterion is met and the decision to refuse to register the Stop TTIP initiative justified. Not only does the refusal mean that ECI proposals must be clearly inside the framework of the Commission’s powers to be registered, instead of manifestly outside to not be registered, it also means that even when clearly inside the framework of the Commission’s powers there will be times when the Commission will decide not to register an ECI proposal.

The decision to reject an ECI that invites the Commission to not propose a legal act or to not take a legal action also has significant democratic implications. It restricts citizen influence only to confirming support for an external treaty that the EU has negotiated and implies that in the future the Commission will refuse to register all ECI proposals that invite the Commission to recommend stopping or reversing any EU policy decision. This strongly conditions the ability of citizens to be able to use the ECI to challenge established policy preferences. If a democratic instrument is only able to be used to confirm the status quo then it makes it virtually worthless in democratic terms.[5]

It is a concern that the Commission has again decided to choose an interpretation of the ECI legislation that restricts its democratic potential for effective citizen participation. There is enough interpretative scope for the Commission to not be obliged to refuse to register the Stop TTIP initiative, and it almost feels like the Commission first decided it did not want public debate unsettling the TTIP and CETA process, and then worked back from there to try to find a legal justification for this decision. It should also be remembered that registering an ECI is only to allow public debate. It does not impose a legal obligation on the Commission to take any legal action proposed, and they have shown with the One Of Us initiative that they are prepared to ignore ECI proposals, even when they are supported by a large number of EU citizens.

The ECI registration process places a burden of proof on the Commission to show that one of the criterion for non-registration is met; in this case it is that the ECI proposal is manifestly outside the framework of the Commission’s powers. It is not the ECI organisers that need to prove that an ECI should be registered, and if there is doubt as to whether an initiative should be registered then the wording of the Regulation implies that registration should be favoured. In the case of the Stop TTIP initiative the Commission has not discharged this burden of proof beyond reasonable doubt, and in the process has taken a stance that significantly limits democratic participation and is difficult to justify.

James Organ – Liverpool Law School / University of Liverpool

[1] See http://ecithatworks.org/wp-content/uploads/2014/03/An-ECI-That-Works-Reform-ECI-Registration.pdf for other examples of the Commission’s restrictive approach to the ECI

[2] For comment on contradiction with this previous registration decision see legal opinion of Bernhard Kempen pgs 17-19 at http://stop-ttip.org/legal-opinion/

[3] On this point see legal opinion of Bernhard Kempen pgs 11-14 at http://stop-ttip.org/legal-opinion/

[4] The other criteria, which are clearly met and not at issue here, are that an organising committee must be properly formed, that the ECI proposal must not be manifestly abusive, frivolous or vexatious; and that it must not be manifestly contrary to the values of the Union.

[5] See for example R. Blaug, ‘Engineering Democracy’, Political Studies (2002), p. 102.

Photos: STOP-TTIP & GLOBAL2000