The ECI Campaign’s Position on Treaty Amendments

The ECI Campaign respectfully asserts that the European Citizens’ Initiative (ECI) gives EU citizens the right to share their concerns with the European Commission in all areas of European Union law — including topics which might entail treaty reform. The European Commission insists that ECIs requiring treaty amendments fall outside the framework of its powers and are therefore legally inadmissible. We believe that limiting the topics the ECI can address in this way is both contrary to the wishes of the ECI’s creators and violates fundamental European principles of democratic participation.

As outlined below, the rejection of ECIs proposing treaty amendments by the Commission is in no way required by the provisions of article 11(4) of the Treaty of Lisbon (TEU) and is in fact inconsistent with the democratic principles now enshrined in the Treaty. In addition, since it is within the framework of the Commission’s powers to propose changes to fundamental law, there is no reason why citizens cannot ask it to do so using the ECI.

(1) Wording of article 11(4) in the TEU

Article 11(4) of the Treaty on European Union (TEU) grants citizens the right to invite the Commission “to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties”. This is the legal basis of the ECI.

This article was originally drafted for the Treaty establishing a constitution for Europe and left unchanged in the Treaty of Lisbon. The members of the Constitutional Convention who wrote this article never intended to put any restrictions on what constitutes a “legal act of the Union”. In its ECI registration decisions, the Commission has interpreted “legal acts” broadly to include activities such as public consultations, research studies and networking platforms.

Members of the Constitutional Convention also never considered that “the purpose of implementation of the Treaties” might limit initiatives to matters addressing secondary law. The TEU and TFEU contain within them methods for their own revision. Therefore, procedures by which the Commission recommends treaty amendment can in fact be considered part of “implementing the Treaties”. In European countries with national citizens’ initiatives, if the instrument cannot be used to change primary law (e.g., the constitution), this is spelled out explicitly. Since article 11 (4) does not clearly and without any ambiguity forbid treaty amendments, it can be assumed that they are accepted.

Unfortunately, due to the rapid addition of the citizens’ initiative right in the draft treaty, its wording was not subject to formal debate and did not benefit from input from citizens’ groups.

(2) Provision on Democratic Principles in the TEU – Title II
The broad guidelines laid out under the “Provisions on Democratic Principles” in Title II of the Treaty of Lisbon (TEU) could help determine the meaning of “legal acts” and “implementation of the Treaties” within article 11(4) of the TEU.

Article 11 (1) of TEU states that EU institutions are required to inform citizens and representative associations, and a public exchange of views must be carried out “in all areas of Union action“. Article 10(3) states that “every citizen shall have the right to participate in the democratic life of the Union” and for that purpose “decisions shall be taken as openly and as closely as possible to the citizen”.

In these statements, there is no indication that the “democratic life of the Union” excludes the fundamental laws (treaties) of the European Union. In addition, there is no reason to conclude that the “decisions” taken by the Union refer only to secondary law or would exclude treaty amendments.

(3) Commission authority to propose treaty amendments – article 48 (2) of TEU

The authority of the European Commission to initiate legislative procedures includes the prerogative to initiate proposals to modify the Treaties – see article 48 (2) of the Treaty on European Union (TEU). However, the Commission refused to register the ECI “Enforcing Self-determination Human Right in the EU” which referenced article 48 (2) because it called for a treaty amendment.

At the same time, the Commission registered the ECI “Let Me Vote” which would also require treaty change to implement – i.e., to article 20(2) TFEU. It however referenced article 25, TFEU as its legal basis and not article 48. This is a “passarelle clause” which allows the alteration of a legislative procedure without a formal amendment of the treaties.

We assert that it is illogical for the Commission to use Article 48(2) to make proposals for treaty amendment on its own initiative, but forbid EU citizens from using the ECI to invite it to do so. It is also contradictory to accept one ECI requiring treaty change and reject another simply because each references a different legal basis. The ECI merely invites the Commission to consider an issue, but does not require it to do anything. Were the Commission to decide to act on an ECI, it would itself choose the best legal basis for action.

(4) ECI Implementing Regulation 211/2011 – article 4 (2)

The ECI’s implementing Regulation 211/2011 states in its preface that “the procedures and conditions for the citizens’ initiative should be clear, simple…so as to encourage participation by citizens and to make the Union more accessible.”

The legal admissibility check was created in this spirit. As outlined in article 4(2), in order to be registered, an ECI must not ‘manifestly fall 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’. The key wording is “manifestly outside”. It was designed to prevent ECIs on topics on which the Commission had absolutely no powers to do anything whatsoever.

Since, the Commission can propose treaty amendments for the purpose of implementing the Treaties, an ECI asking for such an outcome is very likely inside and certainly not “manifestly outside” the framework of its powers.