Three years after the entry into force of the ECI (European Citizens’ Initiative) regulation it seems “easier for a camel to pass through the eye of a needle” than to register an ECI, writes Assya Kavrakova.
Assya Kavrakova is the Director of ECAS.
40% of the initiatives submitted for registration – 20 out of 51 – have been rejected, as the European Commission found them “falling manifestly” outside the EU competences. This has brought a lot of disappointment and has raised a series of questions about the criteria for registration, their interpretation by the European Commission, the transparency of the decision-making process (the so-called “legal admissibility test”), and the need for tailor-made support and advice to ECI organisers with regard to the suitability of particular Treaty provisions.
ECAS’ study, The European Citizens’ Initiative Registration: Falling at the First Hurdle?, conducted in the framework of the ECI Support Centre, finds that the legal admissibility test has been narrowly applied by the European Commission, and that inconsistencies have been displayed, with some ECIs being registered, while other similar ones were rejected. There is also a lack of sound legal reasoning for many of the rejections. About one third of the rejected ECIs are probably within the EU’s competences. For another third, it is debatable whether they fall “manifestly” outside the EU’s competences.
To date, six rejected ECI citizens’ committees have appealed against the Commission’s refusal before the General Court. But the Court’s decisions will take years to be issued.
The fact that “registration remains a major challenge for the organisers” has been acknowledged by the European Commission in its recent Report on the application of the ECI Regulation. The European Ombudsman asked the Commission to “endeavour to provide reasoning for rejecting ECIs that is more robust, consistent and comprehensible to the citizen” and the European Parliament confirmed that the “Commission’s legal admissibility check proved to be a real obstacle to the success of the ECI as a civic agenda-setting instrument.”
The planned revision of the ECI Regulation in 2015 provides a window of opportunity for making this unique instrument for transnational participatory democracy more user-friendly and accessible for European citizens. ECAS, Democracy International and the Initiative and Referendum Institute Europe have already agreed on a common agenda for the revision. The ECI day co-organised with the EESC, will provide a forum for discussing it.
The following five Recommendations make a case for a clearer definition of the nature and scope of an ECI, and for a more transparent and consistent procedure as regards the application of the legal admissibility criteria for registering an ECI.
Clarify through public debate the nature of the ECI as an agenda-setting instrument.
It is, in fact, unclear whether the ECI is mainly an agenda-setting instrument limited to initiating legally binding legislation, or whether it could also be a policy-setting instrument, allowing citizens to put certain issues on the EU policy agenda.
Provide a definition of “manifestly outside” that is clear, easy to understand and is not subject to arbitrary interpretation.
Currently, the Regulation provides no specific guidance on how to determine whether a subject matter is ”manifestly outside” the Commission’s competence to submit a proposal for a legal act. The criterion is quite vague and requires further clarification. This is especially so given the fact that EU citizens must be able to understand how the Commission assesses what it considers to be ”manifestly, in order to decide whether their proposal is likely to meet the requirements, outside”.
Clarify the procedure for the legal admissibility test and ensure transparency of the decision-making process.
Given the current relatively strict application of the registration eligibility test, this results in certain initiatives not being able to start collecting statements of support, even though the mere collection of signatures already sends a strong democratic signal.
More transparency in the rules of procedures and internal guidelines of the European Commission on the registration process should be disclosed and made publicly available.
Any amendment of the test must reflect the fact that the current test is applied too strictly and should acknowledge that EU citizens are normally not very well versed in EU law. This will allow initiatives that call for legal action based on provisions that are prone to multiple interpretations to be nevertheless registered.
Establish an ECI officer, similar to the Hearing Officer in competition law.
The ECI officer would ensure that a constructive dialogue is established between the institutions and the ECI organisers during the registration process and beyond. The role of the ECI officer would be to liaise with the organisers throughout the registration process and to provide support in identifying the possible legal basis of the ECI, as well as to resolve disputes between DG SEC GEN and the organiser, in case of refusal of registration.
Secure adequate legal advice for ECI organisers with regard to the legal basis of initiatives, which is independent and outside the remit of the European Commission.