European Citizens’ Initiative2

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.
Article 11.4 (Treaty on European Union)

Part 2 presents: (1) The ECI procedure as defined by law (Regulation (EU) 211/2011). (2) Facts about the use of ECIs since its inception. (3) An evaluation of the ECI practice so far. (4) A brief reflection about the place of direct democracy in the European Union.

(1) The procedure as it currently exists

ECI slide15blue

Click to open ECI homepage: The procedure step by step
Legal Basis

  • The Treaty on European Union (TEU) established the citizens’ initiative right in Article 11(4)
  • Article 24(1) of the Treaty on the Functioning of the European Union (TFEU) sets out the general principals for a regulation
  • The Regulation (EU) 211/2011 determines how this right can be exercised in practice.
    Annex I provides the minimum number of signatories per Member State to be reached in at least 7 member states
    Annex III provides models for statement of support forms
  • The Commission Implementing Regulation (EU) No 1179/2011 of 17 November 2011 lays down technical specifications for online collection systems
  • Rule 197a of Parliament’s Rules of Procedure concerning public hearing on a citizens’ initiative

Links to the Treaty and Regulations are provided here: Legislative framework for the European citizens’ initiative

(2) Use of the ECI since the beginning on April 1, 2012

Proposed initiatives 51
Registration refused 20
Withdrawn 10
Insufficient support 12
Collection closed 3
Submitted to the Commission 1
Answered by the Commission 2
Open 3

Status 06/03/2015
Source: The European Citizens’ Initiative / Official register

In the first three years only three out of 51 initiatives managed to reach the required minimum number of one million signatures. One of them, “Stop vivisection”, was a grassroots initiative with a low budget; the other two were provided with considerable organizational resources, some money and professional campaign know-how.
Title of the initiative Campaign website ECI website
1 Water and sanitation are a human right! Right2Water ECI info1
2 One Of Us oneofus.eu ECI info2
3 Stop Vivisection stopvivisection.eu ECI info3

(3) Has the ECI fulfilled its promise?

In view of a forthcoming possible revision [1], it is time to ask whether the experience with the ECI so far has fulfilled our hopes. In the beginning there was enthusiasm and many initiatives were launched. Finally there was an instrument to channel constructive proposals from European citizens to the European Union. And at the same time the European Union could tap into the creative potentials of the citizenry. However, the mood began to change as disappointment grew. Out of 51 initiatives 20 failed already at the first hurdle: they were dismissed by the Commission for manifestly falling outside its competence.[2] Only three initiatives made it till the end and two of them have been answered by the Commission. But here again, the result was rather disappointing and the organizers of the citizens’ initiatives were not satisfied at all with the response – or rather non-response – of the Commission. Organizing and hosting ECIs certainly provides education for (European) citizenship both for citizens and administration. However, it is doubtful that the result of this education will bring citizens and the EU institutions closer to each other. Rather than the high hopes the downside risks have materialized, confirming the experiences with agenda setting initiatives on the local and national level (see slides 11, 13 and 14 in part1).

Ours is a true citizens’ initiative, run entirely by volunteers. We started very enthusiastically, full of hope and excitement. After months of hard work, our experience has mainly been characterized by disappointment. The process is cumbersome, many people are concerned about sharing personal data, the online signature collection system is not user-friendly and a resource-intensive professional marketing campaign is necessary for success. (Prisca Merz / End Ecocide in Europe)

In various ways the European Commission showed little interest in promoting citizen participation. This throws a light on the Commissions view on participation and democracy:

  • Based on a restrictive interpretation of Article 11(4) the Commission concluded that ECIs may not validly request an amendment of the Treaties. This diminishes the power of initiatives considerably. It means, for example, that the ECI cannot be used to propose the introduction of a real and democratic citizens’ initiative.[3]
  • The high number of initiatives which did not pass the legal admissibility test is striking. The ECAS -study found that in a number of cases the test was applied too narrowly, decisions to refuse registration were arbitrary, and the reasons given for rejection were incomplete (ECAS Brussels, December 2014, 4). The legal admissibility test provides the Commission with a powerful tool to dismiss unwanted initiatives.
  • The two successful initiatives were rather disappointed with the final response of the Commission. In their perception the initiatives petered out in good words but no action. However, the Commission has no obligation to take legislative measures following a ECI.
  • The Commission provided very little support for citizens engaged in ECIs and allocated insufficient administrative resources.

 

The ECI Regulation is fatally flawed, it does not work yet. It is an empty promise of an EU that has lost its way. Citizens will use the ECI only if they see that it can have an impact on policy. But this is not what they see happening. (Carsten Berg)

With a view to the revision of the ECI Regulation it is perhaps helpful to analytically distinguish between technical, procedural, and mental-institutional shortcomings and limits of the existing ECI practice. Technical shortcomings can be overcome without changing the ECI Regulation. The obvious major deficit in this category is the online collection system. “Every single ECI campaign has encountered significant problems with the Commission’s ECI online collection system (OCS).”[4] According to Reinder Rustema the present system is beyond repair and it should be replaced with a user-friendly OCS developed and maintained by an open source developer community with the support of the Commission.[5]

Procedural shortcomings are, for example, the time allowed for the collection of signatures. Collecting one million statements of support, be it on paper or online, is a formidable task and requires considerable organizational resources and time. The shorter the time allowed for collection the more difficult it becomes. One year is clearly too short for less resourceful initiative groups; a two-year time limit would be more appropriate. Another major difficulty concerns the requirements for the statements of support, which differ from country to country. Many people are reluctant to sign a statement, if sensitive personal data (ID numbers) are required. The example of Finland shows, that verification of signatures is possible without such data.

The biggest limitations of the ECI process are the result of the mental-institutional set-up of the EU (see slides 11 and 12 in part1). According to the European Treaties decision-making power rests with the institutions and the European citizens remain excluded from it. Just like most national constitutions, the Treaties constitute the power of the decision-makers and the powerlessness of the citizens, placing them in practice under a regime of guardianship (Articles 9 – 19 TEU). They institutionalize an imbalance of power, a categorical inequality, between citizens and politicians. This imbalance contributes to shaping the mentality, views and experience of people, depending on their position and role in the political power games. It helps to explain the negative attitude of the Commission (power holders) towards sharing their power with the citizens and also the passivity and lack of interest in politics among the so-called ordinary citizens. The ECI leaves the imbalance of power untouched, it doesn’t change the regime which produces and reproduces a gap between people and decision-makers. It is therefore not surprising that so far the ECIs in practice did not close or significantly reduce the gap between the European institutions and the citizens, rather the result was mounting frustration among active citizens and loss of momentum for the ECI.

The ECI owes its existence to a grassroots initiative at the European Convention who’s task it was to draft a Constitution for Europe. The dream was to introduce direct democracy on the European level, but for the Convention such an option was out of question. What was finally adopted was an agenda setting initiative, which survived the shipwreck of the Constitution for Europe, was carried on into the Lisbon Treaty and became applicable in 2012. In a long-term perspective the hard work done to institutionalize the ECI, and the ECI campaigns, can be considered as preparing the ground for one day establishing European direct democracy for real. This is no small thing. But as it stands at present, the ECI is not a decision-making instrument, it is not a law-making instrument, it is not a tool of transnational direct democracy. Rather, it is a tool for well organised citizens to lobby and pressure the Commission. Can it become the first step towards European direct democracy?

(4) Is there space for direct democracy in the EU?

In The Place Of Direct Democracy I distinguished between two fundamental traditions that oppose each other. The tradition of autonomy, which is animated by the idea of individual and collective autonomy and the tradition of heteronomy, which is animated by the capitalist project of domination and unlimited expansion. I also argued, that only political projects within the autonomy tradition have a place for direct democracy, but not those belonging to the heteronomy tradition. Therefore, whether the ECI is considered as a first step toward direct democracy depends on the political project for Europe of which it is a part.

In the project of a truly democratic European Union the role of the ECI is without doubt to prepare the way for direct democracy. Both European initiatives, the one demanding to stop TTIP and the other demanding implementation of water as a human right, express and act in support of true democracy. Stop TTIP formulated one of its main objectives as follows: “We want to prevent TTIP and CETA because they include several critical issues such as investor-state dispute settlement and rules on regulatory cooperation that pose a threat to democracy and the rule of law.”

It is significant that the Commission refused to register TTIP with the usual reason that the initiative falls manifestly outside the Commission’s competence. The Commission argues that a citizen’s initiative in support of TTIP is legally acceptable, but not an initiative against TTIP; the reasoning is that adopting of TTIP requires a legal act of the Commission, while preventing TTIP requires the Commission to refrain from a legal act. (Read the Commission’s reply from here) Oh, how subtle it is! The Commission is telling people: You may applaud us, but stop messing with our business! In response Stop TTIP filed a lawsuit against the European Commission at the European Court of Justice in Luxembourg (click to read more about it). Stop TTIP also carried on its campaign, now as a self-organized ECI, continuing the battle against the corporate takeover of society. This demonstrates that citizens can organize an initiative without asking the Commission for permission. It shows citizens refusing subordination to an external unelected authority. Indeed, who or what could prevent people from organizing a real citizens initiative, including a popular vote, all by themselves? In a democracy isn’t it the sovereign citizens who decide? And if this is not what happens in today’s reality, what does it tell us?

Is direct democracy compatible with the existing EU institutions and their development? Does it fit into the dominant model and current policies of European integration? Of course, institution building and integration policies are linked to each other. The creation and legal design of the ECI could serve as an example for this. It started as a bottom-up initiative for direct democracy and a democratic EU. It turned out that such a demand had no chance in the Convention on the Future of the European Union, but against the background of growing criticism of the democratic deficit something had to be done. The result of this struggle between democratic (autonomous) and oligarchic (heteronomous) forces in the EU was the ECI: an agenda setting initiative, which constitutes at best a preliminary step in a law-making process and remains subordinated to the political will of the Commission. Institutionalization and use of the ECI can be considered as an ongoing political struggle between autonomous and heteronomous forces: in a first phase it was about the implementation of an ECI in the treaty or not, in a second phase about the legal design (resulting in Regulation 211/2011), then about the practice of concrete ECIs (about admissibility and what to do with successful initiatives etc.), and currently also about a revision of the Regulation (recurring every three years). It is a struggle between seeming democracy or oligarchy, as we have it now, and real democracy where citizens are decision-makers not onlookers.

In my view, the chances of direct democracy under the present EU regime are practically nil. Firstly, for institutional reasons and secondly, for lack of political will. Implementing direct democracy would involve an amendment of the Treaties, which means that all the member states would have to agree (see Article 48 TEU). Provided there is a strong political will, changes of the Treaties are possible, but there are no signs of any interest in direct democracy on the part of the power holders. Quite the contrary. The currently dominant model of European integration points in exactly the opposite direction, leading the EU on a path towards less democracy. Correspondingly, the Commission is blocking impulses from below: using the ECI to propose changes to the Treaties is not admissible.

From Keynes to Hayek Streeck
In the analysis of Wolfgang Streeck, European integration is moving towards an European consolidation (or austerity) state. It is a new kind of political-economic regime that is emerging out of the debt state. It settles the struggle between democracy and finance in favor of the latter.

In the consolidation state “commercial market obligations take precedence over its political citizenship obligations”, and “citizens lack access to political or ideological resources with which to contest this” (Streeck 2015). Institutions of citizen participation are diminished so as not to disturb the market. Increasingly decisions are outsourced into the market, money dominates democracy, and fiscal austerity becomes permanent. Under European Monetary Union (EMU) national democratic institutions are subjected to international rules and, if needed, national governments replaced by international experts (for example in Greece and Italy in 2011). Whereas in the capitalist welfare state democracy was to protect citizens and society against market forces, the newly emerging austerity state is to protect financial markets against democratic interference and control. This shows, for example, in the way in which TTIP and CETA are worked out. They are negotiated in secret by governments and corporations, but the public is excluded. This obviously violates basic principles of democracy. It also violates, one could argue, article 17.1 TEU which says that “the Commission shall promote the general interest of the Union” – unless we consider that the general interest coincides with the interests of big business, which, concluded by its practice, must be the position of the Commission. Obviously, the Commission represents and promotes a heteronomous project of European integration, serving the interests of banks and big corporations rather than the people.[6]

In the EU the rules of the game are determined by the treaties and by national constitutions. They establish a complex and heteronomous system. They empower politicians and disempower citizens, taking away the sovereign power which in democratic theory belongs to the citizens. This is not a polemic, but a fact evidenced by treaty law and constitutions of “representative democracies”.[7] The rules of the game also constitute a monetary system that a) creates increasing inequality and concentrates power and wealth in the hands of a few, b) promotes competition and c) requires continuous economic growth that has led to the destruction of planet Earth. The EU treaties enshrine a neoliberal economic belief, which is incompatible with true democracy. The adoption of a “debt brake” (requires a balanced budget) represents an example for the way in which a dominant economic dogma is elevated into a constitutional rule; this blocks the way to an alternative economic policy. The crisis of 2008 has been used to push further neoliberal economic reforms, bypassing democratic procedures. The aim is to create a “market-conforming democracy” (Angela Merkel), meaning a democracy willing to dance to the tunes of the financial markets.[8] No matter how parliaments and governments are composed, their task is to adopt the measures proposed by financial markets through the IMF and the European Commission. In this way austerity is put into practice, preserving a semblance of democracy.

The European consolidation state is a supranational regime without democratically accountable government but with binding rules, regulating its member nation states: with governance instead of government, where democracy is domesticated by markets rather than vice versa markets through democracy. (Wolfgang Streeck. 2013. Gekaufte Zeit, S. 163)

EU superstate
To fulfill the neoliberal utopia people’s access to decision-making must be blocked and developments towards real democracy prevented. To this end political-economic decision-making is continuously outsourced to locations and agencies that are beyond the reach of people’s power: central banks, European Monetary Union, European Stability Mechanism, Summits and Crisis Summits, TTIP (CETA, TISA), “debt brakes” et cetera.

There are less and less spaces where citizens can freely participate in regulating their own affairs; there is increasing disregard for citizens’ political will; in many ways people are discouraged from actively exercising their democratic political rights, for example through propaganda in the mass media or through the criminalization of protest. Discontent that has no democratic outlet must find other ways of expression. It can be diverted and mobilized in favor of very diverse political and social ends, for example, to oppress minorities, to fuel war and civil war, to suppress ourselves. However, it is difficult to imagine that such diversions could ever be in direct support of a process that makes us and our societies more human.

European integration has taken the form of an international super state, a heteronomous system driven by elites, where representative democracy has been domesticated by the market. To create a democratic Europe, integration would have to take an opposite direction towards autonomy, installing a citizen-driven system and real democracy where markets are servants of the people. A citizen-driven Europe, a democratic Europe cannot be built on a treaty between governments; it cannot be a heteronomous system in which power flows top-down, it must be an autonomous system in which power flows bottom-up. Such a system is based on a social contract between citizens in the form of a constitution which only the citizens have the right to make and to remake according to their political will. A democratic constitution establishes the principles, rules and laws according to which we, the citizens, govern ourselves – on all political levels: global, European, national, regional, local. This is how it should be. What we have is quite different, we have the Treaties on European Union and national constitutions which are not made by the citizens but given to them by their rulers. These treaties and constitutions may contain elements of democracy but fundamentally they establish an oligarchic order where the few rule over the many. To democratize Europe the present direction of European integration has to be reversed. This is utopian, but it is possible and there are many ideas on how this could be done.[9]

Agenda setting initiatives like the ECI are not ineffective. They are a means to exert pressure and the more support they generate, the more effective they can become. Failure to register by the Commission is the end of a formal ECI as it was presented. But, as Stop TTIP shows, a dismissal, especially one on shaky ground, can become just a new beginning, this time of an informal initiative. Such form of participation can be equally effective in forcing the authorities to react and take a stand. Regardless whether formal or informal, the ECI (agenda setting initiative) remains a different kind of beast compared to a real, autonomous citizens’ initiative: the one is domesticated the other is free.

The EU needs to listen to these original outcries from its people and deal with them in a democratic way. No bureaucrat (…) should be able to turn a blind eye to petitions of this size and importance. (Source: The European Sting, December 10, 2014)

[1] “By 1 April 2015, and by the same date every three years thereafter, the Commission is required to present a report on the application of the ECI Regulation with a view to its possible revision.” (fact sheet on the ECI)

[2] For more see ECAS Brussels, December 2014.

[3] Remember: “The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties.”(Article 48.2)

[4] Reinder Rustema in: An ECI That Works, p. 104

[5] Ibid. p. 104-106

[6] See Michael Hudson, Wolfgang Streeck, the film of Árpád Bondy und Harald Schumann: “Macht ohne Kontrolle – Die Troika”, and the film “Dédale, un fil vers la démocratie”

[7] See TEU Article II, Provisions On Democratic Principles and, for example, Sections 2 and 3 of the Finnish Constitution.

Constitution of Finland

Chapter 1 – Fundamental provisions
Section 1 – The Constitution
Finland is a sovereign republic.
The constitution of Finland is established in this constitutional act. The constitution shall guarantee the inviolability of human dignity and the freedom and rights of the individual and promote justice in society.
Finland participates in international co-operation for the protection of peace and human rights and for the development of society.

Section 2 – Democracy and the rule of law
The powers of the State in Finland are vested in the people, who are represented by the Parliament.
Democracy entails the right of the individual to participate in and influence the development of society and his or her living conditions.
The exercise of public powers shall be based on an Act. In all public activity, the law shall be strictly observed.

Section 3 – Parliamentarism and the separation of powers
The legislative powers are exercised by the Parliament, which shall also decide on State finances.
The governmental powers are exercised by the President of the Republic and the Government, the members of which shall have the confidence of the Parliament.
The judicial powers are exercised by independent courts of law, with the Supreme Court and the Supreme Administrative Court as the highest instances.

Source: http://www.finlex.fi/fi/laki/kaannokset/1999/en19990731.pdf

[8] Chancellor Angela Merkel: “Wir leben ja in einer Demokratie und sind auch froh darüber. Das ist eine parlamentarische Demokratie. Deshalb ist das Budgetrecht ein Kernrecht des Parlaments. Insofern werden wir Wege finden, die parlamentarische Mitbestimmung so zu gestalten, dass sie trotzdem auch marktkonform ist, also dass sich auf den Märkten die entsprechenden Signale ergeben.” (We do live in a democracy and we are also glad about it. It is a parliamentary democracy. Therefore the budget right is a fundamental right of parliament. With regard to this we will find ways to shape parliamentary co-decision in such a way that it is nevertheless also market-conforming, so that the appropriate signals emerge on the market. (my translation))
Source: Press Conference in Berlin, September 1, 2011

[9] For the relationship between constitution making and democracy see “Democratic Europe Now” and Entretien avec Etienne Chouard (video).

Links and References

*Guide to the ECI (Click to download PDF from here) available in 24 languages

ECI Homepage European Commission (official register)

Legislative framework for the European citizens’ initative

ECI Homepage European Parliament

Carsten Berg and Janice Thompson (Eds.) An ECI That Works

ECAS Brussels, December 2014. The European Citizens’ Initiative Registration: Failing at the First Hurdle?  (Click to download PDF)

Efler, Michael. A rollercoaster ride toward the ECI (About the birth of the ECI)

Hudson, Michael. Greece: Austerity for the Bankers. February 24, 2015 (video with transcript)

Hudson, Michael. QE intentions all too obvious. March 11, 2015 (video with transcript)

Streeck, Wolfgang. 2011. The Crises of Democratic Capitalism. In: New Left Review 71, September-October (Click to download PDF)

Streeck, Wolfgang. 2013. Gekaufte Zeit. Suhrkamp Verlag Berlin. (Buying Time: The Delayed Crisis of Democratic Capitalism. London and New York 2014)

Streeck, Wolfgang. 2015. The Rise of the European Consolidation State. MPIfG Discussion Paper 15/1 (Click to download PDF)

Vogel, Joseph. 2015. Der Souveränitätseffekt. Zürich: diaphanes

Vogel, Josef. Interview über die Entstehung der modernen Finanzmacht, Griechenlandpolitik und Revolution. In: der Freitag 10.03.2015

Dédale, un fil vers la démocratie (video [fr])

Macht ohne Kontrolle – Die Troika
Film von Árpád Bondy und Harald Schumann

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Last update: 20.04.2016