15 Can citizens’ initiatives be implemented without the Constitution?

Article I-47.4 of the Constitutional Treaty reads:

"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."

In order to adopt citizens’ initiative as a separate measure outside the Constitutional Treaty, there does not appear to be a need to amend the existing Treaties, as this measure neither implies new competences for the EU nor does it change the balance of power between the institutions. Politically, this might prove to be a welcomed element as it could show that after the rejection of the Constitutional Treaty, the EU is trying to address the concerns of citizens regarding transparency and democratic control. 81 82 However, there are those who believe that citizens’ initiative is only a ‘gadget’ as it does not add anything new to the already existing right of petition to the European Parliament.83 According to article I-47.4, the European Commission is under no obligation, and will have the right not to follow the citizens’ request.84 Legally this is correct, but the vast majority of legislative initiatives come from the Commission as a result of requests by the European Parliament, the Council, Member States, economic operators or civil society. Therefore, would the Commission really say “No” to one million citizens from several Member States provided it was within its competence? It might not be in the broader public interest to make citizens’ initiative binding on the Commission since this could set a precedent for governments and regional authorities to demand a right of initiative also, thereby undermining the Institution’s independence. But, the initiative could be much more than a gadget by providing in the implementing legislation for organisers of the initiative to have a right of appeal against a refusal by the Commission and to have 'a seat at the table' when follow-up draft legislation is discussed. 85 Care should be taken in this implementing legislation not to place additional requirements on the collection of signatures and to make sure that the balance of power in the decision-making process is as favourable as possible to the initiative. Such issues as the definition of 'citizens', the condition of a 'significant number of Member States', the respective role of the Commission and the EP in the process, or the funding necessary for gathering signatures, should facilitate the exercise of this right. 86 87 In the recently published Communication on ‘Plan D’, the Commission did not include citizens’ initiative as a part of its action plan; however, it is still working on the subject.

Evelyn Gilmartin & Bartosz Napieralski