PhD Researcher, School of Law, University of Surrey
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. 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. 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. 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. 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. 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.
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. 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.
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.’
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.
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. 
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. 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. 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. 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. Five countries have announced very recently that they will reduce cumbersome requirements for ECIs after July 1st.
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.  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.
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. 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. In addition, there are calls for the clarification of EU data protection law and for creating uniform requirements for signature collection around the EU.
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.
 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
 ‘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
 Fritz Scharpf Governing in Europe: Effective and Democratic? (OUP 1999) 6
 Ben Crun ‘Tailoring Representativve Democracy to the European Union: Does the European Constitution Reduce the Democratic Deficit?’ (2005) 11(4) ELJ 452,453
 Article 10(1) TEU provides that citizens are directly represented at Union level in the European Parliament
 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
 See Articles 227 TFEU, 228 TFEU, 11(3) TEU respectively
 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
 As outlined in Regulation (EU) No 211/2011 of 16 February 2011 on the citizens’ initiative
 Michael Dougan ‘What are we to make of the Citizens’ Initiative?’ 48 CMLR 1807,1835
 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
 ‘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
 ‘ECI Day 2013’ Conference (see note 2)
 Carsten Berg ‘Good news for ECI organisers’ <http://www.citizens-initiative.eu/?p=1607#more-1607> accessed 14 May 2013
 Michael Dougan (n11) 1821
 Find all the Initiatives here http://ec.europa.eu/citizens-initiative/public/welcome
 ‘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