Representative democracy is the basic rule of EU governance (Article 8a amended TEU), although only partially developed. Citizens’ participation in addition to European and national elections is complementary.
The Convention proposed a new Article on participatory democracy. Much of the contents are codified practice, enshrined in secondary legislation and evolved within the framework of improved governance. Still, giving these practices of information, dialogue and consultation treaty status is an improvement.
The citizens at large are mainly offered the possibility to express their opinions, but this at least presupposes that information on legislative proposals and planned actions is freely available.
Representative associations and (organised) civil society is given a somewhat more privileged position, including open, transparent and regular dialogue. Selectivity and means to participate can influence the conduct of such dialogues.
Interestingly, Article 8b(1)-(2) places an obligation on all the EU institutions, although it is difficult to see how the intergovernmental European Council and Council as well as the European Central Bank have acted on or plan to fulfil their obligations. Traditionally, they deal behind closed doors and only report the results after the fact.
Are we going to experience a miracle when the Lisbon Treaty is in force, the Treaty itself being a prime example of how not to communicate?
The European Commission has an obligation to consult stakeholders (parties concerned). Since the European Parliament is usually involved as a co-legislator, there are some checks on selectivity and partiality.
The fundamental questions concerning the basic structure of the European Union, the content of the Treaties, resources and expenditure as well as foreign, security and defence policy remain outside the effective reach of the European Commission, the European Parliament, citizens, civil society and “stakeholders”. Intergovernmentalism remains the black hole until later reforms.
The real innovation of the Convention was the pan-European citizens’ initiative. It can be seen as a safety valve, giving active groups of citizens the possibility to mobilise in order to demand EU legislation on a certain topic.
One would suppose that the European Commission has at least the obligation to give a reasoned reply, if it has received more than a million signatures from a sufficient number of member states.
At the same time, the citizens’ initiative is severely limited, since it is restricted to questions within the powers of the European Commission. Treaty matters and intergovernmental areas, which actually could mobilise citizens, are excluded.
For instance, the One seat campaign concerning the waste caused by the European Parliament’s regular exoduses to its formal seat in Strasbourg, was not only raised before there was a Treaty clause on citizens’ initiatives. The seats of the institutions have been fought over and decided by the governments of the member states, annexed to the Treaties and subject to veto powers. The Commission has no powers to legislate.
But citizens and NGOs are creative and active. Let us wait and see what they will present as citizens’ initiatives when the Treaty of Lisbon is in force.
Drafting history: The draft Treaty of the Convention introduced a new Article I-46 on participative democracy, which with a slightly altered fourth paragraph became Article I-47 of the Constitutional Treaty with the headline The principle of participatory democracy.
In the Lisbon Treaty, the three first paragraphs and the first subparagraph of paragraph 4 of Article 8b have the same wording as the Constitution, except for the fact that the “Commission” is called the “European Commission”.
Article 8b(4) TEU second subparagraph builds on the end of the Constitution Article I-47(4) and concerns the legislative procedures and conditions required for a citizens’ initiative, referring to Article 21 TFEU.
The Treaty of Lisbon (OJ 17.12.2007, C 306/1) introduces a new Article 8b:
1. The institutions shall by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.
2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.
3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent.
4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, 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.
The procedures and conditions required for such a citizens’ initiative shall be determined in accordance with the first paragraph of Article 21 of the Treaty on the Functioning of the European Union.
The following look at the Treaty of Lisbon is going to concern the role of National Parliaments.