Monday, 10 March 2008

EU TFEU: Citizens’ initiative and petitions

The citizens’ initiative is one of the novelties of the Treaty of Lisbon, opening up a channel for participation. Today, we look at the legal base, which allows more exact conditions to be set (secondary legislation).

The directly elected European Parliament continues to receive petitions from citizens in matters which affect them directly.

Complaints concerning maladministration can be addressed to the Ombudsman.

In these and in other matters we have the right to address the institutions of the European Union in the treaty language of our choice, and to receive an answer in the same language.


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In Part Two Non-discrimination and citizenship, the Treaty of Lisbon (ToL) adds a new first paragraph to Article 21 of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/52:

37) In Article 21, the following new first paragraph shall be inserted:

‘The European Parliament and the Council, acting by means of regulations in accordance with
the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions
required for a citizens' initiative within the meaning of Article 8 B of the Treaty on European
Union, including the minimum number of Member States from which such citizens must
come.’.

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The current Article 21 TEC has the following contents (in the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 E/50-51):

Article 21 TEC

Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 194.

Every citizen of the Union may apply to the Ombudsman established in accordance with Article 195.

Every citizen of the Union may write to any of the institutions or bodies referred to in this Article or in Article 7 in one of the languages mentioned in Article 314 and have an answer in the same language.

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The Lisbon Treaty version of Article 21 looks easy to consolidate, but there are three numbers for each amended Article and every Article it refers to, if we want to know ‘everything’. Through the horizontal amendment 2(f) ‘institutions and bodies’ widens to ‘institutions, bodies, offices or agencies’ in the now fourth paragraph, and horizontal amendment 8 regards the Article references in this paragraph:

Article 21 TFEU (ToL), after renumbering Article 24 TFEU

The European Parliament and the Council, acting by means of regulations in accordance with
the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions
required for a citizens' initiative within the meaning of Article 8 B [renumbered Article 11 TEU] of the Treaty on European Union, including the minimum number of Member States from which such citizens must come.

Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 194 [TEC and TFEU (ToL), renumbered Article 227 TFEU].

Every citizen of the Union may apply to the Ombudsman established in accordance with Article 195 [TEC and TFEU (ToL), renumbered Article 228 TFEU].

Every citizen of the Union may write to any of the institutions, bodies, offices or agencies referred to in this Article or in Article 9 of the Treaty of European Union [repealed Article 7 TEC, replaced, in substance, by Article 9 TEU, renumbered Article 13 TEU] in one of the languages mentioned in Article 53(1) of the Treaty on European Union [repealed Article 314 TEC, replaced in substance by Article 53(1) TEU, renumbered Article 55(1) TEU] and have an answer in the same language.

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The substance of an EU citizen’s right to petition the European Parliament, to apply to the Ombudsman and to correspond with the EU institutions in one of the treaty languages is preserved.

You can look for relevant treaty provisions and you can check the Charter of Fundamental Rights of the European Union where these rules are usually mirrored (OJ 14.12.2007 C 303/10):

Right to good administration (Article 41)
Right of access to documents (Article 42)
European Ombudsman (Article 43)
Right to petition (Article 44)

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Since the citizens’ initiative is the novelty, we are going to follow it more closely.

The new paragraph 1 introduces the legal base for regulations on the modalities for a citizens’ initiative. The ordinary legislative procedure is used.

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We look at the previous stages concerning the citizens’ initiative.

The European Convention proposed the following new Article I-46(4) of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/20):

Article I-46(4) Draft Constitution

4. No less than one million citizens coming from a significant number of Member States may 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 Constitution. A European law shall determine the provisions for the specific procedures and conditions required for such a citizens' initiative.

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This innovation was agreed on and modified by the IGC 2004, and it became part of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/35):

Article I-47(4) Constitution

4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the 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 Constitution. European laws shall determine the provisions for the procedures and conditions required for such a citizens' initiative, including the minimum number of Member States from which such citizens must come.

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The IGC 2004 seems to have made it still clearer that only ‘Community’ legislation qualifies, thereby leaving politically interesting questions pertaining to treaty reform and intergovernmental areas of cooperation outside the scope of admissible citizens’ initiatives.

The minimum number of initiators’ member states was specifically mentioned as one of the conditions needing provisions.

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The IGC 2007 took over most of the substance of the Constitution text in Article 8b(4) TEU (ToL), renumbered Article 11(4) TEU, but left it to Article 21 TFEU (ToL), renumbered Article 24 TFEU, to provide the legal base for procedures and conditions.

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Now for some subjective views:

The citizens’ initiative has been hailed as an achievement in the context of participatory democracy at European Union level. On the other hand, it has been criticized because it only invites the European Commission to submit any proposal as a result.

My preliminary thoughts on the citizens’ initiative is that the Lisbon Treaty introduces a nice sounding ‘democratic’ reform, but that the key question is that the treaty has been drafted to exclude all but the old ‘Community’ areas (first pillar; TFEU).

We can, of course, try to envision areas where sizable lobby groups like trade unions or farmers, perhaps even environmentalists or campaigners against nuclear power might muster the necessary numbers and pan-EU appeal to demand legislation within the Commission’s powers of proposal. It is possible that some questions may give rise to enough passions for ‘ad hoc’ reform coalitions to be formed, if the conditions to be set are lenient.

But the big political questions about the future of the European project seem to have been left by the member states to the member states, not the people.

Treaty reform or dissolution of the EU, as well as foreign, security and defence policy are outside the scope of admissible citizens’ initiatives.

It is therefore possible that this participatory innovation will lead to frustration, when potential campaigners, including the campaigners for the citizens’ initiative itself, are confronted with the restrictions.

Two examples:

If I understand correctly, even politically interesting ‘details’ like the ‘One seat campaign’ would have proven to be inadmissible under the rules to be crafted, since the seats of the institutions along with a myriad of questions have been agreed intergovernmentally, and changing the official seat of the European Parliament would require a unanimous decision at treaty level to change the protocol.

The objective of the ‘Who do I call campaign’ could succeed if the European Council had a unilateral change of heart to enhance democratic legitimacy within the European Union, but a mandatory provision to that effect would require a treaty amendment, again outside the powers of the Commission.

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A Room of One’s Own is still a distant dream. The citizen of the EU has been given a playpen (an ‘enclosure in which a baby or a young child may play safely’).


Ralf Grahn