Expulsion of the Roma from France; A breach of EU law?

Andrew Seow Xian Wen

 

Ideal application of EU law

Freedom of movement for EU citizens is enshrined in Articles 21 and 45 of the TFEU.[1] Before the Treaty of Maastricht in 1992, only the free movement of workers was facilitated, but this gradually expanded to involve all EU citizens. The CJEU decreed that freedom of movement for all citizens is “the destiny of the EU”,[2] and henceforth the modern trajectory of EU law has been towards that goal. Therefore, expulsions may be the most draconian measures that a state can take against foreign citizens and must be assessed comprehensively before being legitimately adopted.[3]

However, enforcing Articles 21 and 45 TFEU in a straightforward way is nullified by Article 5 TEU which places migration issues (concerning the movement of EU citizens) in the hands of the national court. [4] This means that the EU can only issue directives, which set out the purpose member states must work towards. Directive 2004/38, the Citizens Rights Directive” (CRD) makes clear that two conditions must be met before an expulsion of foreign EU citizens is warranted.[5] In general, the conditions for denial of free movement are that migrants (EU citizens moving across the EU)

i)                    Must have insufficient resources to sustain themselves such that they become a burden to social assistance services

ii)                  Be a sufficiently serious threat to public security.

These factors must be assessed with the principle of proportionality, and on an individual basis.[6]

The Directive aims to balance unfettered EU citizen migration within the Schengen area against the strain on social assistance systems that a flood of immigrants would bring to host countries. At present, policy-makers have attempted to strike a balance by imposing that citizens must achieve self-sufficiency in a reasonable timeframe (3 months) in order to stay in a host country without restriction. However, it might be argued that EU law is not applied evenly across the board, and may very well be skewed against the Roma.

 

Reality 1: EU law is skewed against the Roma

Faced with persecution back in their home countries of Bulgaria and Romania, some Roma have fled to France.[7] However, because they are not formally schooled and cannot obtain work permits in France, the Roma, unable to fulfill the conditions set out in the CRD, cannot prove ‘sufficient resources’ by employment. Many take to recycling glass, playing music on the street, or begging. For the authorities, this ‘deviant’ manner of obtaining income does not count towards fulfilling the conditions of “self-sufficiency”.[8] Additionally, if construed very widely, France may deem repeated thefts, begging, or illegal occupation of land to be ‘sufficiently serious threat to public security’ whereby two grounds to expel Roma are fulfilled.

There was an additional catch for the Roma in the seven years preceding 2014: temporary restrictions applied to Romania and Bulgaria (‘transitional measures’) meant that Roma must apply for work permits in order to be gainfully employed in France and stay beyond 3 months.[9] With the French government’s systematic programmes of expulsion in place, it seems impossible that the very individuals they are trying to expel will be granted work permits to stay on. Hence we see that the ‘transitional measures’, combined with the CRD conditions, when applied to the realities of the Roma, disproportionately affect them in terms of free movement into France.

 

Reality 2: French implementation does not fulfill the Directive

The conditions for expulsion in the 2004 Directive were drafted with a high threshold, and must all be fulfilled before expulsion can be administered. However, three French sources of law clearly violate the spirit of the Directive. They not only lower the standard for determining who is a threat to the public, but also make it possible to expel foreign EU individuals on the basis of one condition.

Firstly, in July 2010, the French passed Immigration Bill [No. 542] (2010 Immigration Bill) which lowered the threshold of what constitutes serious threats to public security, by conflating ‘aggressive begging’, ‘illegal land occupation’; and ‘repeated theft’, with a serious threat to public security.[10] The Bill introduced a judicial process that disregards the principle of proportionality by individual review and it potentially constitutes an infringement of fundamental human rights vis-à-vis ‘collective expulsion’.[11] Protesters[12] believed that the Bill disproportionately affected the Roma, who take to begging, theft, and squatting through a combination of personal beliefs, unfortunate circumstances, and the inability to obtain work permits due to discrimination.

Secondly, in October 2010, the French pledged to ensure the correct transposition of the 2004 Directive. As the original deadline had long passed, and the Commission set an additional deadline for France who begrudgingly met it within 1 hour of the new deadline.[13] Although this new Law No. 2011-672 on Immigration, Integration and Nationality (2011 Immigration Law) used similar wording to the Directive and was thought to advance the law in its spirit, it became clear that two Directive Articles were transposed inappropriately.

i)                    Article 27 of the CRD which transposed into Article 39(3) of Immigration Law set out that an order to leave the country (OQTFs -obligation de quitter le territoire français) may be issued to genuine, present serious threats even if the Roma stayed for less than 3 months.[14] Human Rights Watch (HRW) states their view that this is clearly against the wording of the directive as there should not be any conditions limiting foreign EU stay.[15] While such security concerns obviously apply to all individuals in a host country, this article, read together with the 2010 immigration bill, means that those Roma who have stayed less than 3 months can be legitimately expelled for squatting, and ‘aggressive begging’ – a disproportionately severe punishment.

ii)                  Article 14 of the CRD transposed as Article 22 of Immigration Law stated that an EU citizen may be expelled if he constitutes an ‘unreasonable burden on the social assistance system’ and this applies to citizens that have stayed for less than 3 months in France. When the European Parliament questioned the appropriateness of Article 22, it was clarified that this provision only applies in ‘clearly repetitive cases where applicants’ sole purpose of renewing the stays of less than 3 months is to circumvent the conditions for residence’ laid down in the directive.’[16]

On the evidence, 80% of the incoming Roma from Bulgaria are reliant on social support services in those countries,[17] and France’s fear of them taking advantage of the system is hence not unfounded. However, this is no reason to contravene EU Directives and attempt to expel them. Rather, these Roma clearly represent a humanitarian problem akin to refugees and must be assisted to the fullest extent as EU citizens. Deported Roma could face more extensive persecution and human rights violations of violence upon their return to Bulgaria and Romania as rule of law is less prevalent.

The two transpositions show a clear watering down of the procedural safeguards and are inconsistent with the requirements of the Directive. The inadequate transpositions mean that the Roma do not have guaranteed time to establish an economic presence or prove self-sufficiency, but rather can easily be thrown out due to lowered standards of what constitutes a security breach, or when the French Conseil d’Etat decides that such immigrants are potentially reliant on social services.[18]

Thirdly, the French Civil code conflates a dependency on social assistance services with a threat to public order.[19] France would allow for an immediate expulsion upon discovering an alien’s threat to public order or ‘abuse of law’, where abusing the social services would constitute a threat to public order. Combined with the requirement for a work permit ‘transitional measure” the effective transposition of the directive into French law transforms the test into a single step one with no need for individual review. As a result, desperate and poor EU citizens are prevented from finding work, and are subsequently expelled because they need state support rather than retained because they need help.

Reality 3: Half-hearted implementation

It is submitted that the watering down of the safeguards combined with an anti-Roma sentiment – President Sarkozy reportedly state that the Roma were to be ‘systematically evacuated’[20] – means that the law will be implemented to target rather than to protect the Roma.

HRW examined 198 OQTFs in 2010 and 2011 and found they embodied 4 traits implying a clear disregard for proportionality.[21] It was found that the OQTF’s were in standardized form, and virtually identically completed with no evidence of any social welfare assistance received. Additionally, there was a pro-forma declaration attached where the Romani stated they were begging and had no medical insurance. The rights of these people were clearly not taken seriously and the protections implemented were either half-hearted or not implemented at all.

However, there are cases where some courts threw out OQTFs because there was no proof that the Romani in question were security threats. This might show some extent of proportionality where individual assessments are made when it comes to OQTFs but these cases (wrongly so) are the exception rather than the norm.[22] Point in case, a draconian second mechanism exists to compliment the OQTF – a prefectoral order to remove persons to the border, (arrêté préfectoral de reconduite à la frontière, or the APRF)[23], which is issued in line with the provisions of the 2010 Bill to deem foreign citizens as security threats. It only allows a 48 hour appeal period after which persons are forcibly removed – an almost irrefutable burden.  It was held to be valid in EU law when used in clearly repetitive cases’ but arguably has much wider application in reality. Indeed in 2009, 10,000 Romani were expelled,[24] followed by 11,000 in 2010, and 13,241 in 2011.[25] It is highly doubtful the law was applied in the spirit of the Directive in all these cases.

 

Conclusion

Immigration is a highly sensitive issue and not only potentially depletes a country’s social services, but is a key political topic that if addressed against the wishes of the general population can spell the end for a politician. France has clearly breached EU law by misapplying the Directive, and by infringing the principles of proportionality and human rights by allowing ‘collective expulsions’. Although commentators have suggested taking France to task under the Treaty to face economic sanctions,[26] this overlooks the well-founded French concern that Roma present in France are an actual burden to social services, and that incoming Roma would add to this burden.

The EU politicians must reframe the Roma plight under the lens of “Development and Humanitarian Aid” rather than “Migration”. This would not only underscore the emergency of the situation, but would most importantly, eliminate improper transposition since EU law directly applies and must be enforced to the letter.

 


[1] Treaty on the Functioning of the European Union – Articles 21 and 45

[2] C 184/99 Rudy Grzelyczk v Centre public d’aide sociale

[3] Barnard, Catherine, The Substantive Law of the EU: The Four Freedoms, (3rd edition, Oxford University Press, 2010) at 226

[4] Treaty on European Union – Article 5

[5] C 413/49 Baumbast and R v Secretary of State for the Home Department

[6] Diana Mahoney, Expulsion of the Roma, 37 Brook. J. Int’l L. 649 2011-2012 at 663

[7] Suzanne Daley, Roma, on Move, Test Europe’s ‘Open Borders”, N.Y. Times, Sept. 17, 2010.

[8] Mahoney n6 668

[9] Mahoney n6 661

[10] Immigration Bill [No. 542], available: <http://www.hrw.org/en/news/2011/02/07/open-letter-french-senators-immigration-bill>

[11] Quinn Bennett, Please Don’t Be Our Guest: The Roma Expulsion from France under European Union Law, 40 GA. J. INT’L & COMP. L. 219(2011) 241

[12] Ibid 228

[13] Human Rights Watch <http://www.hrw.org/news/2011/09/28/france-s-compliance-european-free-movement-directive-and-removal-ethnic-roma-eu-citi>

[14] Ibid [5]

[15] Ibid [6]

[16] “Parliamentary questions E-008463/2011, EU Parliament, 22 September 2011

[17] Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, 9 February 2010, p. 14.

[18] Mahoney n6 663

[19] Ibid 672

[20] Owen Park & David Toke, The Politics of a Multi-level Citizenship, Global Society, 27:3, 360 (2013) at 367

[21] HRW n12 [14]

[22] Ibid [17]

[23] Ibid [29]

[24] Claire Suddath, “Who are Gypsies, and why is France deporting them?” Time, 26 August 2010, available: <http://content.time.com/time/world/article/0,8599,2013917,00.html>

[25] HRW n12 at [38]

[26] Bennett n11 244

Case Comment: C-423/12 Reyes

 

Re-posted from the Eutopia Law Blog

 

Adrienne Yong

PhD Candidate at King’s College London

 

The recent developments in EU citizenship have been admittedly fairly quiet in comparison to the uproar after the ever controversial Zambrano case where the interpretation of citizenship provisions under Article 21 TFEU went astray. In the case of Reyes, the question concerns a clarification on the Directive 2004/38 and the meaning of ‘dependant’ under Art 2(2)(c). The case concerns third country nationals (TCNs), the cases of which have dominated the scene since Zambrano. The persistence of claimants in this respect is thus admirable, suggesting that Zambrano and indeed, the Directive itself, left a lot to be desired. This persistent pattern is to be received positively, representing good opportunities to clarify confusing positions.

Facts

Ms. Reyes, a Filipina, was brought up by her grandmother in the Philippines when she was three years old after her mother left to work in Germany to support her family. Ms. Reyes’ mother is now a German citizen.

Throughout her life, Ms. Reyes never held a job but similarly never relied on the Philippines’ social benefits. Her mother periodically sent money to support her, her sisters and her grandmother. Ms. Reyes’ mother moved to Sweden to be with a Norwegian man in 2009, whom she married mid-2011. He received a retirement pension which was also sent to the Philippines for Ms. Reyes’ benefit. After moving, Ms. Reyes’ mother did not work, living on her husband’s retirement.

When Ms. Reyes entered the Schengen area early 2011, she was refused a residence permit as dependent family member by the Swedish Migrationsverket for being unable to prove the funds sent by her mother and her partner were to sustain her life in the Philippines (in the form of basic needs, lodging, healthcare) or that any home state public funds were supporting her. This was due to the fact that she was fully dependent on her grandmother and the Migrationsverket decided this indicated she was not dependent on her mother in Sweden.

The appeal by Ms. Reyes to the Migrationsverket was dismissed because whilst they agreed her basic needs were supported by her mother’s funds, there was not enough proof that she would be able to survive without dependence on her mother and partner if she were to remain in her home state. They argued that she was still young, had qualifications from there, lived there, and still had relatives there. Her mother’s choice to support her was not determinative in the decision that Ms. Reyes’ was not dependent.

The first question referred thus aims to clarify if Art 2(2)(c) Directive 2004/38 – the definition of a dependent family member – requires that those over 21 years old must prove that they had searched for employment and failed OR sought support from public funds and it was also not possible before being considered a family member. The second asks if this family member can still be considered a ‘dependant’ if they are considered to be fairly well qualified to get employment AND intends to find a job in that Member State. This would nullify the conditions under which they would be a dependent relative.

CJEU judgment

In 16 short paragraphs, the Court of Justice of the European Union makes a concise and very coherent decision on Ms. Reyes’ situation.

Seemingly considering the Opinion of AG Mengozzi, the Court referred to Jia, where the situation concerned the definition of a ‘dependant’ for over-21 year olds. The standard would be a situation of ‘real dependence’ which must be construed broadly. This is somewhat justified and explained by AG Mengozzi in that whilst the free movement of persons telos is not primarily to maintain family unity, this reasoning does not seem to have been totally ignored. It supports the broad position taken by the Court in its judgment, deciding that the situation where Ms. Reyes’ mother periodically and consistently sent money to support her daughter’s life in her home state would be one of sufficient dependence. This is, furthermore, absent of any necessity to prove they have tried to find work or seek support from public funds to support themselves. This requirement would place an extra burden on the citizen, which is against the spirit of the fundamental freedom to move and reside. The Court is clear in applying Jia that Sweden were in breach of their obligations under the Treaty.

Regarding the definition of ‘dependant’, the decision is fairly self-explanatory. To deny a citizen the status of a dependant purely on the grounds of their intention and chances to seek employment in the Member State would be against Art 23, Directive 2004/38 which expressly protects the right of family to seek employment if they have residence, Lebon also cited. Therefore, this should not interfere with its definition.

Comment

AG Mengozzi places a significant emphasis on the interpretation of Directive 2004/38 in a broad and generous manner in terms of protection of family members and the rights they should derive from it. He draws upon the teleological perspectives of the provisions, which favour the unity of a family whether all Union citizens or not. Though recognisably different conclusions have been reached by the Court in the past in regards to similar questions, it would appear that the CJEU were convinced in this case that Directive 2004/38 should not be considered narrowly for Ms. Reyes’ situation.

Certainly, the judgment is not a surprising decision. Considering the importance of the right to freely move and reside, which includes employment opportunities for family as codified by Directive 2004/38, the case represents a hammering home of the definition of a ‘dependant’. Indeed, it goes to show that Member States cannot arbitrarily try to avoid their obligations to Union citizens’ families by way of minor technicalities and additional requirements.

 

The European Citizens’ Initiative: Giving Voice to EU Citizens

Anastasia Karatzia

PhD Researcher, School of Law, University of Surrey

 

Introduction

The term European or, more precisely, European Union (EU) citizenship finds expression within a web of rights and responsibilities contained in primary and secondary EU legislation. This year marks the 20th anniversary of the establishment of EU citizenship and as such an EU campaign entitled ‘The European Year of Citizens 2013’ has been launched to raise awareness of the general public about those rights and responsibilities. The campaign also aims to send the message across the continent that EU citizens have an active role to play in reinforcing their EU conferred rights through their direct participation in the democratic life of the EU. The vitality of direct participation in the democratic life of the EU was recently highlighted by the Treaty of Lisbon.[1] The Treaty has introduced Article 11(4) TEU which provides for the European Citizens’ Initiative (ECI), a mechanism whose purpose is to give individual citizens a ‘voice’ in the EU.

 

This article provides a tour de horizon of the legal framework of the ECI and addresses certain criticisms expressed during its brief life, most recently at a conference on the first year of the ECI which took place earlier this year.[2] The article commences by briefly describing the need for a form of participatory democracy in the EU before it moves on to outline the ECI’s legal framework and the requirements for the submission of a successful Initiative. Whilst the focus is on the legal issues pertaining the functioning of the ECI, certain proposals for further review of the ECI’s legislative framework will also be considered.

 

The Need for Participatory Democracy

The journey for participatory democracy did not begin in Lisbon. For a long time now the increase of EU’s powers and impact since its inception, coupled with the establishment of the principles of direct effect and primacy of EU law by the CJEU, generated an increasing need for ‘input legitimacy’ in the EU.[3] In other words, since the early stages of European integration it was anticipated that the evolution of the EU and political choices of its Institutions (the legislature, in particular) needed to reflect the will of the people.[4] The attempts to create more legitimacy in the EU relied on the nation-state model of representative democracy, according to which citizens authorise representatives through elections to act on behalf of their interests.[5] A primary example is the evolution of the European Parliament. Although the European Parliament started as an assembly of national parliamentarians, since 1979 citizens vote for Members of the European Parliament.[6]

 

The above development aside, the continuous low turnout in European Parliament elections is often interpreted as a sign of public apathy and growing estrangement of EU citizens. As such, low voting turnout has raised concerns about the lack of communication between the EU and its people. Such detachment between the EU as a system of governance and the citizenry of the Member States has attracted criticism regarding the success of the European Parliament as a representative body. In order to bridge the gap the EU has created and developed a number of instruments which aim at enhancing participatory democracy at supranational level.[7] These include, inter alia, petitions to the European Parliament, the right to complain directly to the European Ombudsman and consultation campaigns by the European Commission before the launching of the formal legislative process.[8]

 

The Treaty of Lisbon attempts to strengthen the abovementioned representative and participatory aspects of the democratic life of the EU. Regarding the former, the Treaty enhances the powers of the European Parliament and increases the role of national parliaments in EU legislative scrutiny. Regarding the latter, the Treaty introduces the ECI, according to which one million signatures from seven Member States could allow a group of EU citizens to put considerable pressure upon the Commission to give serious consideration to their request and submit a legislative proposal to that effect.

 

The ECI is thus ‘the latest part of a movement towards establishing participatory democracy as a complement to existing forms of representative democracy in the EU.’[9]

 

The Legislative Framework of the ECI

Whilst Article 11(4) provides the legal basis for the ECI, it is the ‘ECI’ Regulation 211/2011 which establishes the conditions and provisions regarding the functioning of the ECI mechanism. The ECI Regulation was adopted after thorny negotiations and compromises between the Council and the European Parliament and formal registration of ECIs began on 1st April 2012. In a nutshell, the organisers of an Initiative need to set up a ‘Citizens’ Committee’ comprised by seven citizens from different Member States and form their initiative as either a draft legal proposal or as general principles. They must then register their Initiative with the Commission which has two months to accept or reject the registration. If the Commission accepts the initiative, a one year limit begins during which the Citizens’ Committee needs to gather one million signatures to support their proposal. The signatures can be gathered either online or on paper and they should emanate from seven Member States. It should be noted that there is a threshold of signatures for each Member State which is the number of each country’s Members of European Parliament multiplied by 750. Once the signatures have been gathered, they have to be certified by national authorities. The European Commission is then obliged to examine the initiative but it is not forced to take any form of action; it has absolute discretion on how to proceed with an ECI.

 

So far, twenty-four initiatives have requested registration to the Commission, of which sixteen have been registered. Two of them have been withdrawn, so there are currently fourteen open Initiatives. It is also noteworthy that eight Initiatives have been refused registration because they covered areas which fall outside the powers of the Commission.

 

Legal Issues

The provisions of the ECI Regulation have been subject to criticism as to whether they achieve the purpose of creating clear, simple, user-friendly and proportionate procedures and conditions so as to encourage participation by citizens and make the EU more accessible. [10]

 

To begin with, there are minimal legal criteria in order for an ECI to be registered by the Commission. According to Article 4(2) of the Regulation, an ECI cannot be registered if it is manifestly abusive, frivolous or vexatious or contrary to the values of the EU. Also, an ECI cannot be registered if its subject matter falls manifestly outside the powers of the Commission. The limitation that an ECI should fall in the scope of the competences of the EU is reasonable but could prove difficult for laymen who are not are not acquainted with the TFEU’s competence typology. Therefore, in order to ensure the correct wording of their proposals and the appropriate legal basis, organisers probably need legal advice which increases the required funding.

 

In addition, it is open to dispute whether the Regulation allows for ECIs which propose the alteration of Treaty provisions. As Dougan explains, the dispute does not arise because of a question on whether the Commission has the power to propose an amendment to the Treaties.[11] Article 48 TEU clearly identifies the Commission’s power to submit proposals for Treaty changes either through the ordinary revision procedure (Article 48(2)-(5) TEU) or through the simplified revision procedure (Article 48(6) TEU). The issue rather arises because of the wording of Article 11(4) TEU which refers to legal acts of the Union required for the purpose of implementing the Treaties. On the one hand, the European Parliament and Civil Society organisations support the view that ECIs should be used for this purpose since the Treaties concern vital topics of great interest to EU citizens. It has even been commented that excluding Treaty amendments is a significant departure from the effect utile of the ECIs.[12] On the other hand, most Member States interpret the ECI Regulation as referring to Initiatives aimed at amending existing secondary legislation but not changing the Treaties.

 

Although the requirement of one million signatures can be seen as proportionate in the current EU of approximately 500 million citizens, a host of bureaucratic issues has raised concerns to the various organisers vis-à-vis the effectiveness of the ECI. For instance, Annex III of the Regulation provides that the rules for collecting signatures shall be drawn up by the national governments. As a result, different signature requirements exist across the EU and eighteen countries require signatories’ ID or passport number in order for the signatory forms to be valid. A survey conducted by European Citizen Action Service, a non-profit organisation located in Brussels, indicates that there is strong resistance in the majority of the respondents to providing such personal data out of fear for their privacy.[13] Carsten Berg, director of an ECI Campaign, a coalition of democracy advocates and NGOs, has urged for the removal of such restrictive requirements. His view has been shared by most ECI organisers.[14] Five countries have announced very recently that they will reduce cumbersome requirements for ECIs after July 1st.[15]

 

Finally, Article 3(4) of the ECI Regulation provides that in order to be eligible to sign an ECI, signatories shall be citizens of the EU. As a result, third-country nationals and legal persons are not able to organise or sign an ECI even if they are lawfully resident within the EU or qualify for long-term residency status. This creates a contradiction between the right to an ECI and other political rights under Article 20(2) TEU. The non-inclusive character of the ECI mechanism ultimately creates a narrow concept of political participation which does not reflect the broad aim of the EU to offer fresh channels of public engagement. [16] ECI organisers have raised concerns about the issue of ECI exclusiveness of application to EU citizens by arguing that the current formulation leaves out a substantial percentage of the target audience from supporting an Initiative.

 

Conclusion

The past year has seen the registration of ECIs covering a range of policy areas from education (Fraternité 2020, High Quality EU Education for All) to human rights (One of Us) and from voting rights (Let Me Vote) to environmental issues (Waste Management, End Ecocide in Europe) and more.[17] As a matter of fact, a few days ago the Right2Water ECI became the first ECI which has managed to collect the minimum number of signatures in eight countries. The first year was arguably a successful one for ECIs despite some ‘teething problems’ faced by the organisers such as the complex procedural requirements and the technical burdens which cost delays and extra financing.

 

Taking stock of the problems that have emerged at this early stage, there have already been numerous recommendations regarding the review of the ECI Regulation which is planned to take place in 2015. Proposals have been made for the extension of the period of signature collection, establishment of an independent help-desk, internalization of the online collection signature server and enlargement of access to sign an ECI.[18] In addition, there are calls for the clarification of EU data protection law and for creating uniform requirements for signature collection around the EU.[19]

 

No doubt, by giving the opportunity to EU citizens to assist in setting the political agenda of the EU, the ECI can be characterised as an important step forward for transnational democracy in the EU. Nonetheless, current experience shows that there are still issues to be dealt with for the ECI to become an easily accessible and user-friendly instrument of participatory democracy

 

All in all, the Commission’s discretion regarding the outcome of an ECI should not be underestimated. One can only imagine the disappointment of organisers who, after having devoted endless amount of time and effort to gathering one million signatures, may find that their initiative has not made any substantial difference in the legislative framework of the EU. It is thereby submitted that the (positive) attitude of the European Commission and the other institutions is perhaps the most important factor in the success of the ECI mechanism. After all, no one would want to see ECIs turning from instruments of enthusiasm and engagement to reasons of frustration.

 

 


[1] European Union, Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 December 2007, 2007/C 306/01

[2] ‘ECI Day 2013:Sign Up to It!’ European Economic and Social Committee Conference, 9 April 2013, see http://www.eesc.europa.eu/?i=portal.en.events-and-activities-eci-day-2013

[3] Stijn Smismans ‘Should participatory democracy become the normative model for EU governance?’ http://www.re-public.gr/en/?p=481 accessed 12 January 2013

[4] Fritz Scharpf Governing in Europe: Effective and Democratic? (OUP 1999) 6

[5] Ben Crun ‘Tailoring Representativve Democracy to the European Union: Does the European Constitution Reduce the Democratic Deficit?’ (2005) 11(4) ELJ 452,453

[6] Article 10(1) TEU provides that citizens are directly represented at Union level in the European Parliament

[7] Bruno Kaufmann ‘Active Citizenship and Representation in Europe: Towards Transnational Democracy?’ http://www.iri-europe.org/files/9513/6140/0060/EU-CH-Citizenship-Booklet.pdf accessed 12 April 2013

[8] See Articles 227 TFEU, 228 TFEU, 11(3) TEU respectively

[9] Julia De Clerck-Sachsse ‘Civil Society and Democracy in the EU: The Paradox of the European Citizens’ Initiative’ (2012) 13(3) Perspectives on EU Politics and Society 299

[10] As outlined in Regulation (EU) No 211/2011 of 16 February 2011 on the citizens’ initiative

[11] Michael Dougan ‘What are we to make of the Citizens’ Initiative?’ 48 CMLR 1807,1835

[12] Michael Efler ‘ECI:Legal options for implementation below the constitutional level’ http://www.democracy-international.org/index.php?id=1342&type=98 accessed 10 December 2012

[13] ‘EU citizens strongly dissatisfied with the personal data requirement in the Citizens’ Initiative draft regulation, survey reveals’ ECAS Report http://www.citizens-initiative.eu/?p=395 accessed 10 March 2013

[14] ‘ECI Day 2013’ Conference (see note 2)

[15]  Carsten Berg ‘Good news for ECI organisers’ <http://www.citizens-initiative.eu/?p=1607#more-1607> accessed 14 May 2013

[16] Michael Dougan (n11) 1821

[18] ‘ECIs: A case for orientation or re-orientation? Report of the ECAS seminar organized on the 19th March 2013’ http://www.eesc.europa.eu/resources/docs/eci-19-03-2013-report.pdf accessed 10 April 2013

[19] ibid

Lets have our EU laws? European Citizens’ Initiative is ready to be used

dr. Agne Limante 

Post-Graduate Diploma candidate in EU Law, King’s College London; PhD in EU law, Vilnius University

 

On 1 April 2012 the Regulation on the European Citizens’ Initiative[i] came into force. It establishes the procedures and conditions required for a citizens’ initiative – the new tool created by the Lisbon Treaty granting EU citizens the right to ask for changes to European law (Article 11 TEU[ii] and Article 24 TFEU[iii])[iv].

Considering that that date chosen for coming into force coincided with April Fool’s day, euractive.com was fast to make a joke announcing that Belgians should submit a Citizens’ Initiative to make ‘frites’ their own, seeking to register them as a traditional specialty protected under EU law. Well, it was quite a fun and user-friendly way to introduce a tool enabling the people to influence the political agenda of the EU for the first time in history.

The European citizens’ initiative grants a right to one million EU citizens from at least seven EU countries[v] to call on the European Commission to propose legislation on matters where the EU has competence to legislate. Proposed initiatives must be registered by the organizing “citizens’ committee” on an online register and Commission has two months to approve them (the registration can be refused if the initiative is manifestly against the fundamental values of the EU or manifestly outside the framework of the Commission’s powers to propose the requested legal act). After such registration, the “citizens’ committee” can start collecting signatures – they have one year after the Commission has confirmed the registration of the proposal to do so. Any EU citizen can sign an initiative (so long as they are old enough to vote in European Parliament elections) and must complete a specific statement of support either online or on paper.

Once the signatures have been collected and verified by the Member States (they have three months to do that), the citizens’ initiative has to be submitted to the Commission. The Commission will have three months to examine it. The organisers will be received at the Commission and will have the opportunity to present their initiative at a public hearing of the European Parliament. The Commission would then adopt a formal response and, in case of a positive decision to put forward a legislative proposal in response to the citizens’ initiative, the standard legislative procedure would start. The Commission proposal would be submitted to the European Parliament and the Council (in some cases only the Council), which will need to adopt it for it to become law.

It is interesting to note that in 2011 the UK government introduced e-petitions, a similar tool for UK citizens – here 100,000 signatures are needed for a question to be addressed in the House of Commons. It seems that such initiatives are becoming a new trend in government – citizens relations and a new way to increase contact between them.

 


[i] Regulation (EU) No. 211/2011 of the European Parliament and of the Council 16 February 2011 on the citizens’ initiative.

[ii] Treaty of the European Union 1993

[iii] Treaty on the Functioning of the European Union 1958

[iv] The European Commission has issued a Guide to the European citizens’ initiative which might be helpful to find additional information on this subject.

[v] The minimum number of signatures that must be collected in each country range from 74,250 in Germany to 4500 in several small Member States. The figure is calculated by multiplying the number of MEPs in that country by a factor of 750.