ECI Revision Proposal Still Needs Substantial Improvement Our in-depth analysis of the European Commission's proposal

2017-10-03 News

While the European Commission’s proposal would make the ECI more user-friendly, it fails at strengthening its political impact, our analysis reveals.

On 13th September 2017, the European Commission released its proposal to (finally) revise the ECI regulation. This paper provides our preliminary response to the Commission.

There are a number of proposed changes that are very positive and will significantly improve the European Citizens Initiative and its ability to enhance EU democracy, particularly those in the collection phase of an ECI. In terms of making collection and management of the process easier we agree with the Ombudsman that “The Commission is striving to deliver the full potential of the ECI as a tool to foster debate and citizen participation at EU level and to contribute to bringing the EU closer to its citizens”.

However, there are still some critical aspects of the regulation that fall short of expectations if the ECI is to maximise its democratic potential for the EU. Our top priority for further development is in the follow-up phase to successful ECIs where a stronger, more citizen-focussed response is still sought. The registration phase also needs to fully reflect the judgments of the ECJ over the last year.

Below you find an initial commentary on the Commission proposal organised into three sections: initiation & registration phase, the collection & verification phase, and the follow-up phase.

Initiation/registration phase

  • In proposed article 4, para 1 and 2 the Commission takes the welcome step of confirming the availability of support and offering to provide a collaborative platform, which should greatly facilitate the organisation of an ECI. Para 1 could perhaps be extended with the phrase ‘to facilitate the registration of ECIs’, or words to that effect, to emphasise that the aim is to increase the number of registrations.
  • the Commission offers to pay for translation of initiatives in to all languages (Article 4 (4) ). This is a positive step that confirms support received from the EESC until now. It would be beneficial if the Commission also provided a translation of the Annexes to the initiative, including a draft legal act.
  • Proposed Art 5, para 5 is welcome as it raises the legal threshold for organisers to be held liable for damages resulting from ECI related activity. Similarly the confirmation in proposed Art 5, para 7 that organisers can form a legal entity is welcomed.
  • Proposed Art 6, which sets out the registration process for an ECI, is a key legal stage for all initiatives. Three important issues that have arisen in relation to registration since the ECI was launched are: the scope of the subject matter of initiatives, the partial registration of initiatives, and the explanation of refusals to register an initiative. These issues have all been the subject of judicial challenge by ECI organisers. The proposed changes partially address these issues.
  • The scope of an ECI. The new regulation needs to fully reflect the decisions in Efler v Commission and other cases regarding the meaning of “manifestly falls outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties” (current Art 4(2)(b)), which is central to deciding whether to register an ECI. For example, the new regulation needs to confirm that there is a broad understanding of a legal act, such as including ‘preparatory acts’, when considering the registration of an ECI. Reference to Art 296(2) TFEU would be beneficial regarding the understanding of a legal act. Given that the EC has the competence to propose changes to the treaty (Art. 48) it should also be clarified that ECIs proposing changes to primary law are admissible.
  • Partial registration. The proposed changes recognise that partial registration is possible in proposed Art 6(4)(b), which confirms the decision of the Commission following the ‘Minority Safepack’ judgment (3rd Feb 2017). However, the proposed article states that the registration will happen if ‘a substantial part of the initiative’ meets the criteria. Introducing discretion for the Commission at this point seems unnecessary, and the Commission should register the parts of an ECI that meet the criteria, however small a part of the initiative they are. The suggestion from the AFCO report of 26th June 2017 in this regard is clearer.
  • Explanation for registration refusal. A number of judgments of the ECJ have addressed this issue and required the Commission to give fuller reasons as the ECI is an important democratic right. These judgments and the need for extensive explanation are not reflected in the Regulation proposals. The suggestion from the June AFCO report that the Commission “shall inform the organisers exhaustively and in full detail of the reasons for such refusal” would strengthen the duty to give reasons.
  • Changes to the registration procedure in proposed Art 6(4). It is good to offer a faster review of registration within one month, rather than organisers having to withdraw the initiative and resubmit, which would then be responded to within 2 months. However, it would be simpler to just state that organisers that have their ECI registration refused have the option to resubmit and the Commission will respond to resubmissions in one month, e.g. “Where organisers are refused registration, fully or in part, they can amend their initiative and resubmit to the Commission within one month. The Commission will decide whether to register the amended initiative within one month”.

Collection & verification phase

  • Proposed Art 2 states that every citizen has the right to support an ECI. An age limit of 16 is a positive addition. It is unclear whether the issue of some citizens being excluded because of identification requirements, particularly when not living in their home Member State, has been resolved. Proposed Article 3, para 2 states: “For the purpose of paragraph 1 a signatory shall be counted in its Member State of nationality”. This makes the verification of statements of support simpler, which is welcome. All EU citizens living outside their home Member State, though, need to have the identification required to support an ECI.
  • The agreement that campaigners can choose their start date in proposed Art 8 (1) is an essential improvement for campaigners. An extension of the collection period for up to 18 months would also be welcome.
  • The issue of collecting emails has been addressed in the proposals. The ability to collect emails is a positive step, but further clarity is needed regarding the exact process, the layout of the forms, and the reasons for destroying emails after the ECI campaign.
  • We suggest to amend proposed Art 17 in the following way: “Email addresses may be collected as part of the statement of support on a non-mandatory base. Data collected on mandatory base must be destroyed after the ECI is finalized, not however data that is collected on non-mandatory base such as the e-mail-addresses.”
  • Proposed Art 9(7) is a good means to facilitate discussion. The addition of a hearing when an ECI reaches a certain threshold would be welcome here as well.
  • The timelines given in Art 9(7) seem to be very strict, mainly for organisers collecting signatures on printed paper. Organisers must inform the commission about signatures gathered every two months, plus inform the commission of the final number not later than 3 months after the end of the collection phase, plus submit all signatures to the national administration within 3 months, already counted and double-checked. However it is unlikely that organisers collecting a certain amount signatures on printed papers are able to meet the requirements mentioned unless they have considerable funding and can pay additional staff for continuous counting and double-checking.
  • Assuming that these information are requested in order to facilitate additional discussion when an ECI reaches a certain threshold, it also remains unclear why they are not requested on a voluntary basis, but organisers are even threatened with harsh sanctions should they not be able to inform the commission within 3 months after the end of the collection phase.
  • The provision of an online collection system free of charge is a positive step. Questions have arisen about the paper statements of support, e.g. do they all need to be scanned in, which would be very time-consuming, or is this optional?

Follow-up to successful ECI

  • The amendments to this section of the regulation are critical to the strengthening of the democratic potential of the ECI and to the EU institutions maximising the benefits of the ECI. The highest priority for the review of the regulation is to strengthen the response to successful ECIs. As you are aware, there has been no legal act yet proposed in response successful ECIs. The proposed changes do not increase the likelihood of a stronger response to a successful ECI, of a legal act resulting from an ECI; of a response that adequately reflects the level of democratic support ECI success reflects. The formulation in the June AFCO report that contains a rebuttable presumption that there will be a legal response would be welcomed: “In the case of a successful citizens’ initiative, in the normal run of events there is a presumption that the Commission will submit a legislative proposal to the European Parliament and to the Council within twelve months of the end of the three month period referred to in point (c). If the Commission is of the opinion that there are good reasons not to submit such a proposal, then it shall duly justify its decision. For the purposes of this Article, special attention should be paid to Article 296(2) of the Treaty on the functioning of the European Union”.
  • The proposed changes do not include a European Parliament plenary vote as part of the follow up to a successful ECI, or a debate that ‘may be concluded by the adoption of a motion for resolution’ as previously proposed in the AFCO report. This is an important gap in the proposed regulation as the hearing would greatly increase the publicity for the initiative, and the quality and legitimacy of its proposal through linking to a European Parliament plenary vote.
  • Methods of deliberative consultations should be applied in the follow-up process of ECIs. In other words successful ECIs should be followed by citizens’ consultations based on randomly‐selected and demographically‐balanced voters being brought together from across the EU to fairly evaluate an ECI proposal. Their result should be made available to the Members of the European Parliament prior to their plenary vote on a successful ECI.
  • We are concerned about the weakness/passivity of the role of the organisers in the public hearing phase in the proposed regulation. The organisers of a successful ECI should be involved in the organisation of follow-up events to fully reflect the campaign that has taken place, and to reflect citizen support. There should be equality of representation at follow-up events, for example lobbies that are strongly against the ECI should not be able to dominate the event. The ECI organisers should be able to agree the balance of participation at the event and have equal access to resources to support the debate at this stage.
  • Proposed Art 14(2) extends to five months the time in which a response will happen. Maintaining the existing three months is preferable.

Further analysis is needed to fully assess the Commission proposals, but with an important discussion in AFCO tomorrow we hope that this paper helps support the ongoing discussion relating to the ECI regulation; in particular by highlighting, from a legal perspective, a number of positive changes, making further suggestions for change, and indicating areas where further clarification is sought.

James Organ for The ECI Campaign