A. The Responsibilities of the Commission and the ECI Organisers

A number of the cases before the CJEU had challenged the Commission’s decisions on procedural grounds, arguing that the Commission had breached its duty to give reasons by inadequately justifying its rejections, or had misinterpreted the ECI Regulation by prohibiting the partial registration of proposed Initiatives. Consequently, some of the ECI-judgments dealt with the tasks of the Commission during the process of registering an ECI. For example, the ECJ in the appeal of the first ECI-case, namely Anagnostakis v Commission, analysed the Commission’s tasks at the legal admissibility test both vis-à-vis Article 4 of the ECI Regulation, and in light of the principle of good administration.Footnote ³⁰ In this regard, the Commission is bound ‘to conduct a diligent and impartial examination’ of each proposed Initiative, which should take into consideration all the relevant features of the proposal.Footnote ³¹ The ECJ spoke of a ‘duty’ bestowed on the Commission ‘to provide assistance and advice to the organisers of an ECI, in particular with regard to the registration criteria’.Footnote ³²

While the ECJ referred to Recital 4 and Article 4(1) of the ECI Regulation as the foundations of the Commission’s duty, a closer look into these provisions shows a more nuanced image of the Commission’s role than that of having a ‘duty to assist’. Recital 4 states that the Commission shall provide citizens with information and advice ‘upon request’ and Article 4(1) requires the Commission to provide information and assistance ‘through a point of contact’. The Commission considers that it has fulfilled this duty by assisting interested citizens through the ‘Europe Direct’ centres and via technical support at the signature collection stage.Footnote ³³ Nevertheless, the language of the ECJ in Anagnostakis points to a stricter duty governing the Commission’s activities at the registration stage with the purpose of ensuring easy accessibility to the ECI.Footnote ³⁴

Provided that the Commission acts upon this stricter duty to help potential organisers at the registration duty, the ECJ’s proclamation on this aspect of the ECI’s registration stage is good news for future ECI organisers. In fact, it tackles one of the main areas in need of improvement that were identified in the 2017 public consultation on the ECI regarding the need to provide enhanced advice and support to organisers regarding registration requirements.Footnote ³⁵ Rather independently from the judgment as such, there are already signs by the Commission of attempting to improve this element of the ECI. For instance, the Commission has procured the creation of a collaborative platform, where former ECI organisers are meant to interact with potential ECI organisers in order to provide advice and support. The collaborative platform is currently at a pilot stage but the Commission has recommended turning it into a permanent tool offering advice by including it in the Proposed New ECI Regulation.Footnote ³⁶

An additional development resulting from the ECI cases relates to the duty of the Commission to look at all the information provided by ECI organisers before concluding its assessment of a proposed Initiative. This point was one of the issues of disagreement between the Commission and ECI organisers in the cases of Iszák and Dabis and Minority SafePack. In the latter case, the organisers contested the lack of an explanation by the Commission regarding which of the eleven acts proposed by their Initiative failed to comply with Article 4(2)(b) of the ECI Regulation and why this was so. They argued that the Commission infringed Article 296(2) TFEU (ie the obligation of EU institutions to state the reasons behind their legal acts) and Article 4(3) of the ECI Regulation, which states that the Commission shall inform the ECI organisers of the reasons for the refusal of their Initiative.Footnote ³⁷

In contrast, the Commission’s position was that its decision stated the main reasons for refusing the registration, thus addressing the issues with the subject matter of the ECI as that was expressed by the ECI organisers in the registration form submitted to the Commission. Any additional information provided by the organisers to the Commission at the registration stage was only indicative and informative, and could not be seen as expanding or limiting the subject matter of the proposal.Footnote ³⁸

Dismissing the Commission’s argument, the General Court in Minority SafePack reiterated its ruling in Iszák and Dabis that the Commission should have considered the information provided in the organisers’ Annex as being equally important to the mandatory information required by Annex II of the ECI Regulation. Annex II of the ECI Regulation provides an opportunity to the organisers to submit to the Commission additional information about their proposal, and has the same binding force as the ECI Regulation. Hence, the Commission has a duty, in accordance with the principle of sound administration, to consider all additional information in the same way as it considers the mandatory information required by Annex II.Footnote ³⁹

Although these findings of the Court may come across as trivialities or as minor details in the grand scheme of things, they shape the extent of the Commission’s duty to give reasons for rejecting an ECI. The expansion of the list of sources that should be taken into account at the registration stage implies an expanded legal duty to provide reasons for rejecting an ECI. According to the CJEU, the Commission’s replies must include the reasons behind the refusal of an ECI in light of all the information submitted by the ECI organisers, and not just based on the subject matter stated in the registration form.Footnote ⁴⁰ This is a beneficial development not only for the clarity of the reasons behind the rejection of specific ECIs, but also because it acknowledges the organisers’ efforts to put together a legally sound Initiative proposal.

Beyond the specific issues with the Annexes of a proposed Initiative, the case law also sheds light on the Commission’s duty to give reasons more generally speaking. In this regard, the CJEU followed a line of thought consistent with the case law on the EU institutions’ duty to give reasons under Article 296 TFEU. In the cases challenging the Commission’s reasons for the refusal to register an ECI, the CJEU repeated the established line of case law on the EU Institutions’ obligation to give reasons: the reasoning must allow the persons concerned to ascertain the reasons behind the measure, and should enable the competent Court to review the Institution’s decision.Footnote ⁴¹ At the same time, the reasons must be assessed with regard not only to the wording of the decision, but also taking into consideration the context of the case and the applicable legal rules.Footnote ⁴²

It is notable that in the ECI cases, the Court did not deviate from the case law on Article 296 TFEU. It could be argued that, since these cases were the first ones concerning the ECI, the Court had some space to shape the Commission’s duty to give reasons more closely in line with the ECI’s objectives, as those are stipulated in primary (Article 11(4) TEU) and secondary (the ECI Regulation) EU law. For instance, the ECI’s anchoring in the Treaty’s provisions on democratic principles (Articles 9–12 TEU) could have called for a more open line of communication between citizens who wish to bring an ECI and the Commission than in other situations involving exchanges between citizens and EU Institutions.

The above comment is not meant to criticise the CJEU’s approach to the issue per se. It is rather to question whether a modified duty to give reasons could not have accommodated considerations relating to the inexperience with EU law of lay citizens who wish to bring an ECI. As will be discussed below, the CJEU did not consider the level of knowledge or experience of ECI organisers as an element that must be taken into account by the Commission during the examination of an Initiative’s legal admissibility.Footnote ⁴³ In other words, the argument that most of the potential ECI organisers are lay citizens without EU law expertise cannot affect the strictly legal assessment that takes place during the legal admissibility test. With this consideration in mind, it can be argued that a stricter duty to give reasons would have been an alternative way to incorporate a particularity of the ECI in the relevant case law on the duty to give reasons.

The approach of the CJEU to assessing the reasoning of the Commission has also delineated the ECI organisers’ duties at the legal admissibility stage. It has become evident from the ECI case law that the Commission is not the only actor with responsibilities at the registration stage. Instead, organisers also have responsibilities when providing the Commission with information at the registration stage. For example, regarding an Initiative proposing action on the basis of Article 352 TFEU, the General Court indicated that potential ECI organisers should not be criticised if they have not managed to establish the necessity of the act they are proposing. That assessment is, in any case, something that should take place after the registration of the ECI, even though it constitutes part and parcel of the competence stipulated in Article 352 TFEU.Footnote ⁴⁴ The organisers should still demonstrate, however, that their proposal intends to attain a Treaty objective, which will allow the Commission to assess their request to use Article 352 TFEU as a legal basis.Footnote ⁴⁵

Along the same lines, organisers who only make general references to Treaty provisions without explaining the connection between the provisions and their ECI proposal should not expect from the Commission a fully detailed analysis of all the various Treaty provisions generally mentioned in the ECI proposal, and of why these could not be the basis for registration.Footnote ⁴⁶ Instead, the Commission is entitled to take a decision only based on the Treaty provision that was the least irrelevant to the objective of the proposed Initiative.Footnote ⁴⁷ Hence, in these situations, organisers should have limited expectations as to the reasons given by the Commission for the refusal of their ECI.

In principle, the above developments to the ECI’s legal admissibility test have left us with a more flexible and user-friendly procedure for the registration of an Initiative than the initial stages of the ECI Regulation. In practice, the Commission has started publishing more detailed Decisions on the registration or refusal of every ECI that is submitted for registration instead of only sending a letter to organisers of Initiatives that were refused registration. This shift in the Commission’s behaviour can be perhaps indirectly linked with the CJEU’s jurisprudence on the extent of the Commission’s duty to give reasons in the context of an ECI. It is also worth mentioning that the new Decisions on registered ECIs include a provision where the Commission explains its own understanding of the Initiative that it registers. This was not the case before. It used to be the case that an Initiative was simply registered, and its subject matter and objectives were fully discussed at the follow-up stage.Footnote ⁴⁸

The discussion so far has outlined the way in which the CJEU has clarified certain matters of contention between the organisers and the Commission regarding the application of the ECI legal admissibility test, and particularly the responsibilities of actors involved in the registration process. In what follows, we turn to the contribution of the CJEU to a third procedural aspect of the test, namely the possibility to partially register an ECI in cases where not all of the objectives of the Initiative are fully compliant with the legal admissibility test.

B. Partial Registration of an ECI

The issue of whether the Commission can allow for the partial registration of an ECI was put before the General Court in the case of Minority SafePack. One of the arguments of the applicants in the case was that the Commission infringed upon the procedural requirement to give reasons, inter alia, because it failed to explain its position that the ECI Regulation does not allow for the registration of at least a part or parts of a proposed ECI. According to the letter sent to the organisers of Minority SafePack, some of the acts requested in the Annex to the ECI could fall within the framework of the Commission’s powers, but the ECI Regulation prevented the registration of a part or parts of a proposed Initiative. This specification was not explicitly stated in the ECI Regulation and thus was criticised as needlessly restricting the scope of the proposed Initiatives and limiting the possibility for ECIs to generate public debate.Footnote ⁴⁹ The Commission’s counterargument in the case was that it was not obliged to explain the reasons behind its position that Article 4(2)(b) of the ECI Regulation does not allow partial registration of an ECI.Footnote ⁵⁰

Notably, the General Court did not rule on the point of partial registration. It merely found that the Commission’s reasoning in the case was inadequate. The lack of sufficient reasoning impeded the organisers from resubmitting a new ECI proposal, as they did not have enough information about the types of acts that would have been accepted by the Commission. It also prevented the General Court from assessing the legality of the Commission’s response. Moreover, the lack of a complete statement of reasons discouraged citizens’ participation in democratic life and contradicted the objective of the ECI to make the EU more accessible to citizens.Footnote ⁵¹ The General Court therefore did not examine whether the Commission’s interpretation of the ECI Regulation, which was not specified anywhere in the ECI legal framework, was legally sound. In the Court’s view, it was unnecessary to rule on this question because the Commission had failed to comply with its obligation to state reasons.

Despite the silence of the General Court on the matter of partial registration of an ECI, the judgment has led to a change to the subsequent approach of the Commission.Footnote ⁵² After the General Court’s judgment, the Commission made a 180-degree turn and started registering only parts of proposed ECIs that would otherwise have been rejected altogether. The first example of this change in practice is the ‘Minority SafePack’ Initiative itself. Following the judgment, the Commission issued a new Decision on the same, initial proposal. The Decision sets out the eleven acts that were proposed by the Initiative’s organisers, followed by a description of some (generic) areas in which legal acts can be adopted by the EU, which is meant to explain the framework of the Commission’s powers to submit a proposal for an ECI in accordance with Article 4(2)(b) of the ECI Regulation.Footnote ⁵³ In turn, the Decision specifies which two proposals (out of the eleven proposals of the Initiative) do not satisfy Article 4(2)(b). As a result, the Commission registers only the remaining nine proposals of the Initiative. According to the Decision, signatures supporting the ‘Minority SafePack’ Initiative should be collected only to the extent that the said ECI aims at proposals from the Commission regarding the nine admissible parts of the ECI.Footnote ⁵⁴

Allowing the partial registration of ECIs is a positive development to the ECI’s legal admissibility test, and to the ECI’s future development. It allows for an increase in the pool of future ECIs, as Initiatives will no longer be rejected on this ground. The potential of this change to the test is evidenced by the Minority SafePack ECI itself: the ECI organisers recently announced that they have reached the necessary one million signatures, meaning that their ECI will most probably proceed to the so-called ‘follow-up stage’.Footnote ⁵⁵ Had the Commission followed its initial approach, which precluded partial registration of an ECI, ‘Minority SafePack’ would have remained in the list of the proposals that were rejected registration. It seems, however, that the Commission has not only changed its current practice based on the CJEU’s judgment. A look at the Proposed New ECI Regulation indicates that the Commission acknowledges the advantages of partial registration, by proposing its codification.

C. Looking Forward: Partial Registration under the Proposed New ECI Regulation

Article 6 of the Proposed New ECI Regulation features a slightly modified ECI admissibility test than the current one, which repeats the basics of the current procedure: organisers can start collecting signatures supporting their ECI after they have submitted their request through the register and the Commission has checked that the proposal satisfies certain legal and procedural criteria and has registered the proposal.Footnote ⁵⁶ Article 6(3)(d)–(e) preserves two of the legal criteria of the current ECI Regulation: a proposed Initiative will not be registered if it is manifestly abusive, frivolous, or vexatious, or if it is manifestly contrary to the values of the EU.Footnote ⁵⁷

The most prominent changes in comparison with the current Article 4(2)(b) of the ECI Regulation are included in Articles 6(3)(c) and Article 6(4) of the New ECI Regulation. Article 6(3)(c) states that the Commission shall register a proposed initiative if ‘none of the parts of the initiative manifestly falls outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties’. This provision should be read in conjunction with Article 6(4), which allows for the partial registration of an ECI by the Commission. The attempt to formalise partial registration is laudable from the point of legal certainty, although perhaps also unnecessary: there is nothing in the current ECI Regulation to prohibit the partial registration of an Initiative.

It can also be argued that the current proposal for the New ECI Regulation, as described above, risks overcomplicating the registration process. The revised procedure consists of a back-and-forth exchange of proposals between the Commission and the ECI organisers. If the Commission considers that only parts of a proposal fall within its competences to propose a legal act, it will send the proposal back to the organisers within one month, together with the reasons behind its assessment. It then becomes the responsibility of the organisers to change and resubmit, to maintain, or to withdraw their initial proposal.Footnote ⁵⁸ If the organisers decide to modify their proposal, they become responsible for submitting the necessary amendments to the Commission within one month. After receiving the amendments, the Commission has one month to assess the new information and to register, partially register, or reject the ECI.Footnote ⁵⁹

From a substantive point of view, the Commission would have to check if ‘a substantial part of the initiative, including its main objectives’ does not manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act. The proposed Regulation, however, does not clarify what is a ‘substantial part’ of a proposed Initiative: does it mean the most important proposals, more than half of the proposals, or simply ‘the gist’ of an Initiative? Does it formalise the Commission’s current approach to partial registrations or does it signal a new way to tackle this issue? The lack of a clear explanation of what is a ‘substantial part of the initiative’ risks complicating the process and leading to disagreements between the Commission and organisers.

The Draft European Parliament Legislative Resolution on the Proposed New ECI Regulation rightly suggests a less complicated terminology.Footnote ⁶⁰ It recommends that the Commission should simply ‘partially register the initiative if part of the initiative does not manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties’ (Article 6(4)).Footnote ⁶¹ It also suggests to extend by one month the timeframe for the organisers to amend their Initiative after the initial assessment of the Commission, and to give further details about the obligation of the Commission to give reasons for the way it handles a proposed Initiative.Footnote ⁶² To prevent the risks of further complicating the registration process, it is hoped that the European Parliament’s proposed amendments will prevail in the shaping of the New ECI Regulation.

A. The Nature of the Legal Admissibility Test

One of the most contested substantive aspects of the ECI’s legal admissibility test was the interpretation of the term ‘manifestly outside the framework of the Commission’s powers to propose a legal act’ that is stipulated in Article 4(2)(b) of the ECI Regulation. Some academic commentators had defended the view that the criterion of ‘manifestly outside’ should relate to the flexibility of the Commission towards the application of the ECI legal admissibility test.Footnote ⁶³ In this sense, it was argued that proposed Initiatives should be refused registration only when their objectives clearly could not be achieved through the available legal bases.Footnote ⁶⁴ Others argued that the wording of Article 4(2)(b) suggested that the test did not require final legal conclusions; those should be reached only at the end of the process, after the public hearing of an ECI.Footnote ⁶⁵ Instead, the ECI legal admissibility test should encompass only a preliminary legal assessment of a proposed Initiative.

By way of contrast, the Commission’s view was that the legal review carried out during the legal admissibility stage ‘cannot be rough but must, on the contrary, be full in order to prevent the procedure from progressing’Footnote ⁶⁶ if the Commission cannot propose the adoption of an act because of its lack of competence. Furthermore, the Commission maintained the position that the registration of a proposed Initiative depends on the type of considerations that should be examined before deciding upon the existence of a competence to propose a legal act. Accordingly, a proposed Initiative would be inadmissible on the basis of Article 4(2)(b) of the ECI Regulation if ‘none of the provisions of the Treaties which provide for the adoption of legal acts on the basis of a proposal from the Commission can serve as the legal basis for an act covering the subject matter of the proposed ECI. Such a situation is manifest where that conclusion does not depend on factual circumstances’.Footnote ⁶⁷

In the case of Costantini, the General Court touched upon the nature of the test and the level of legal analysis that the Commission should conduct during the legal admissibility stage. Disagreeing with the position of the Commission, the General Court sided with the applicants: the wording of Article 4(2)(b) requires the Commission to carry out an initial examination of the information that it has in front of it. A more comprehensive examination should only be carried out if the proposal is registered, and should be published at the follow-up stage.Footnote ⁶⁸ For the purposes of the legal admissibility test, the Commission only has to establish whether ‘in relation to a proposed ECI, it is manifest that it will be unable to make a proposal for a legal act founded on that provision’ (eg on Article 352 TFEU).Footnote ⁶⁹

Along similar lines, the case of Iszák and Dabis,Footnote ⁷⁰ which was decided one month after Costantini, states that Article 4(2)(b) of the ECI Regulation requires ‘an initial assessment [by the Commission] of the information at its disposal in order to determine whether the proposal in dispute does not manifestly fall outside the framework of its powers’. A more exhaustive assessment is required under Article 10(1)(c) of the ECI Regulation.Footnote ⁷¹ The case, therefore, confirms that the test under Article 4(2)(b) of the ECI Regulation is whether ‘the Commission was manifestly not entitled to propose the adoption of an act of the Union based on the articles of the Treaties, in particular those cited by the applicants in the proposal’.Footnote ⁷² The ECJ has confirmed this interpretation in the case of Anagnostakis v Commission, which was the first ECI-case to reach the ECJ (on appeal).Footnote ⁷³

It is apparent from the case law that the CJEU has maintained a relatively sympathetic approach towards citizens wishing to submit an ECI proposal by acknowledging the preliminary character of the legal assessment under Article 4(2)(b). As a result, in principle, the Commission is left with less of a leeway to reject an ECI on the grounds of legal admissibility. Even so, the case law provides scant further insight as to the exact format or the precise meaning of the word ‘manifestly’ under Article 4(2)(b), or as to the flexibility of the Commission when applying the test. One aspect which it does clarify is whether the Commission should take into consideration the status of ECI organisers who have submitted proposals, and the fact that these citizens might be unaware of the specifics of EU law. In their view, the Commission should conduct a light review at the stage of registration, merely to ascertain whether the proposed ECI is a matter on which citizens can exchange views with the EU institutions.Footnote ⁷⁴

The General Court did not examine the arguments concerning the background of the organisers or their capacity to put together a legally sound proposal. Instead, it observed that the aim of the ECI mechanism is not to initiate ‘a mere dialogue between the citizens and the institutions’, but to request the Commission to submit a proposal for a legal act.Footnote ⁷⁵ Hence, the legal admissibility test of Article 4(2)(b) is, above all, grounded in legal considerations based on the principles of conferral (Article 5 TEU) and institutional balance (Article 13(2) TEU).Footnote ⁷⁶ These are the yardsticks that should be used to interpret Article 4(2)(b), as opposed to an interpretation that takes into account the background of the Initiative organisers or their familiarity with EU law.

B. The Legal Scope of the ECI

As seen above, according to the Commission’s interpretation of Article 4(2)(b) of the ECI Regulation, the inadmissibility of an ECI is manifest when the Commission has to assess non-factual circumstances to decide whether there is or not a Treaty provision allowing for a legal act on the subject matter of the proposed Initiative.Footnote ⁷⁷ Based on this interpretation, one might argue that the Commission should refuse the registration of a proposed Initiative if the suitability of a legal basis for registration depended on considerations that were not factual. For instance, the use of Article 352 TFEU as a legal basis could be problematic insofar as the use of that Treaty provision as a legal basis does not depend solely on factual circumstances, but rather requires an assessment of the necessity of the proposed measure. The provision gives the power to the Council, after obtaining the consent of the European Parliament, to adopt measures to attain one of the Treaty objectives if the Treaties have not provided the necessary powers (ie a lex specialis) and ‘if action by the Union should prove necessary’. An assessment of this kind would probably entail political considerations by the EU institutions, which are not supposed to be considered at the ECI legal admissibility stage.Footnote ⁷⁸

The General Court was given the opportunity to rule on the above point in the case of Costantini, where it was asked by the applicants to ascertain that Article 352 TFEU can constitute a legal basis for the registration of an ECI. The applicants argued that the Commission should have used Article 352 TFEU as the legal basis to register their (rejected) ‘Right to Lifelong Healthcare Initiative’.Footnote ⁷⁹ Moreover, they contended that citizens should not be obliged to show in their ECI proposals specifically how the adoption of a legal act would be necessary to attain the objectives of the Treaties. In their view, such a requirement would be contrary to the spirit of the ECI Regulation.

By virtue of the judgment, it is now clear that that ‘neither Article 352 TFEU nor Regulation 211/2011 precludes recourse to Article 352 TFEU in the context of ECIs’.Footnote ⁸⁰ According to the General Court, the conditions for recourse to Article 352 TFEU would still need to be satisfied at the point of registration, but the assessment of the necessity of a legal act should only take place after registration. The conclusions of this assessment should be published by the Commission at the follow-up stage, which is the final stage of a successfully submitted ECI.

It is worth noting that the Commission never stated outside of that case that Article 352 TFEU cannot be used as a legal basis for the registration of an ECI. The Commission mentioned the Article only once, in its reply to the proposed ‘Abolish Bullfighting Initiative’, which proposed the prohibition of bullfighting in the EU.Footnote ⁸¹ According to the Commission’s statement, Article 352 TFEU was inadequate as a legal basis because of the objectives of the Initiative. The issue, therefore, seemed to be with the proposal itself, and not with using Article 352 TFEU as a legal basis.

Nevertheless, the General Court approached the question of Article 352 TFEU essentially by making a distinction between the legal and political considerations that must be taken into account in the ECI’s lifecycle. The judgment sends the message that legal considerations regarding the competence to act on a proposed ECI should be separated from political considerations, such as the necessity of a proposal. The Court’s approach is noteworthy when compared to the Treaty text, which neither distinguishes the two aspects of Article 352 TFEU, nor specifies that necessity is a political decision as opposed to the (legal) decision of whether to use Article 352 TFEU as a legal basis. In this way, the Court seems to prefer an expanded interpretation of the ECI’s scope, but also one that is in line with the ECI Regulation’s underlying idea that, when it comes to the ECI, ‘the legal’ should be separated from ‘the political’.

In 2017, the General Court further clarified the legal scope of the ECI in the Stop TTIP case. In fact, from a substantive point of view, it is this case that has led to one of the most significant developments to the ECI admissibility test, by tackling the interpretation of the phrase ‘legal acts for the implementation of the Treaties’ for the purposes of registering an ECI. Stop TTIP is the second case where the General Court annulled a Commission’s Decision refusing registration of an ECI, and the first where it annulled a Commission’s Decision on the substantive ground that the refusal to register the Initiative breached Article 11(4) TEU and Articles 2(1) and 4(2)(b) of the ECI.Footnote ⁸² The essence of the issue in the case was whether limitations imposed by the Commission to the legal scope of the ECI were compatible with the applicable legal framework. These limitations were not explicitly set out in the ECI Regulation, but had derived from the Commission’s interpretation of the ECI legal admissibility test.

The specific case before the General Court concerned an Initiative proposal to stop the Transatlantic Trade and Investment Partnership (‘TTIP’) and EU-Canada Comprehensive Economic and Trade Agreement (‘CETA’) agreements.Footnote ⁸³ At the time of the Initiative’s proposal, the two agreements were at the forefront of the EU’s actions in the field of external relations. In more detail, the proposed ‘Stop TTIP’ Initiative had invited the Commission to ask the Council to repeal its decision to authorise the opening of the TTIP negotiations under Article 218(2) TFEU. It also asked the Commission to submit a proposal for a Council decision not to conclude CETA. In September 2014, the Commission replied to the organisers that both their proposals had been rejected based on Article 4(2)(b) in conjunction with Article 2(1) of the ECI Regulation because they fell outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties.

The reply to the organisers revealed two limitations to the scope of the ECI.Footnote ⁸⁴ The first limitation imposed by the Commission was that an ECI could not invite the Commission to adopt preparatory acts that produce legal effects only between the EU and its Member States and between EU institutions. The Commission argued that its proposals to the Council under Article 218 TFEU to authorise the opening of negotiations for international agreements were not proposals for legal acts. Instead, the Council Decisions authorising the opening of negotiations for an international agreement are preparatory acts that produce legal effects only between the EU and its Member States and between the EU institutions. As a result, the Commission’s relevant proposals to the Council lacked legal effect against third parties. In this sense, the position of the Commission was that ‘Stop TTIP’ was not proposing any legal acts for the purpose of implementing the Treaties and could not be registered.

The second limitation declared by the Commission was that an ECI could not invite the Commission to propose a decision not to adopt a legal act, such as a proposal not to conclude an international agreement, or to refrain from proposing a legal act for the conclusion of an international agreement to the Council. This proposal would lack any autonomous legal effect beyond the fact that the legal act in question would not be adopted.

The General Court widened the scope of the ECI by completely overruling the more limited Commission’s interpretation of legal admissibility regarding proposals for the conclusion of international agreements under Article 218 TFEU. Perhaps the significance of this development was not so pronounced in the specific case at hand. The Court had already found that the concerned action in question (ie the decision to withdraw authorisation to open negotiations with a view to concluding the TTIP) was, in fact, not a preparatory act, but a definitive act, as it brings the said negotiations to an end.Footnote ⁸⁵ Moreover, the actions proposed by the Initiative fit neatly into the definition of a ‘Decision’ as a legal act under Article 288(4) in the context of the conclusion of international agreements.Footnote ⁸⁶ Yet, in the judgment, the Court makes a more general point about the interpretation of Article 4(2)(b) of the ECI Regulation. It rejects a restrictive interpretation of ‘legal acts’, thus clarifying that the Commission cannot reject a proposed Initiative on the basis that the Initiative does not propose final EU acts with legally binding effects vis-à-vis third parties.Footnote ⁸⁷

In addition to expanding the definition of ‘legal acts’ in the ECI context, the judgment also clarified that citizens can utilise the ECI not only to ask for ‘positive action’ on behalf of the Commission, but also to ask for the partial or total repeal of legal acts. The Commission had argued that an Initiative proposing ‘negative action’ (eg the non-conclusion of an international agreement) contradicts the Commission’s powers under Article 10(1)(c) of the ECI Regulation to issue a Communication setting out the ‘action it intends to take, if any’. Based on this rather obscure argument, the Commission stated that a declaration on its behalf that, as a response to an ECI, it does not aim to propose the adoption of a legal act would have excessively limited the Commission’s monopoly of legislative initiative.Footnote ⁸⁸

Contrary to the Commission’s position, the General Court declared that a proposal for a legal act that implements the Treaties cannot be refused registration on the rationale that the proposal allegedly interferes with an ongoing legislative procedure or distracts the exercise of the Commission’s monopoly of legislative initiative.Footnote ⁸⁹ In the case at hand, the act proposed by the Initiative aimed to prevent the conclusion of TTIP and CETA. These agreements would modify the EU legal order. A proposed legal act, such as the one in question, which seeks to prevent the modification of the EU legal order, contributes to the implementation of the Treaties, therefore fulfilling that part of the Article 4(2)(b) test.Footnote ⁹⁰

Before the Stop TTIP case, the Commission had limited the scope of ECIs to proposals giving a stamp of approval to an international agreement, and proposals to repeal an existing agreement, the argument being that only these ‘positive’ legal acts could be considered to implement the Treaties. The judgment now opens the door to ECI proposals concerning international agreements that are being negotiated at the time of the proposal’s submission. It also opens the door to ECI proposals that object to the negotiations or the conclusion of those agreements. The significance of these possibilities, especially when it comes to the future use of the ECI to influence policy making at the EU level, is highlighted below.

C. The Possibility for Registering ECIs in the Field of International Agreements

The new developments in the ECI legal admissibility test have created the possibility for the instrument to be used in areas where this was not possible so far: the negotiation or the prevention of the conclusion of international (trade) agreements. The wide interpretation by the General Court of the notion of ‘legal acts for the purposes of implementing the Treaties’ establishes the use of an ECI as a mechanism allowing citizens’ participation and fostering a space for contention in areas where these elements traditionally lack a formalised outlet.Footnote ⁹¹

This extension—or, perhaps, the calibration—of the ECI’s legal scope to allow for the involvement of EU citizens in the conclusion of international agreements has come at a good point in time: a time when citizens can have more insight than before into the negotiation process of such agreements. Some academics have argued that ‘the TTIP marks the start of a new approach to transparency in trade negotiations that is very much to be welcomed’.Footnote ⁹² TTIP negotiations were accompanied by release of information to the European Parliament and the public, and were thought to signal ‘a new generation of trade agreements’Footnote ⁹³ characterised by an openness to debate, consultation, and the publication of EU’s positions.Footnote ⁹⁴ This is not to say that TTIP is absolutely transparent or that the field of international agreements or external relations will automatically become more open to citizens’ participation because of the increase in the transparency of the negotiations.Footnote ⁹⁵ Instead, it is to suggest that—at least in principle—this increased transparency in the process has the potential to enable citizens to participate more actively in the EU decision-making process.

With regard to the actual ‘Stop TTIP’ ECI campaign, it appears that the Court’s judgment has had a limited impact. After the initial rejection by the Commission of their proposal in 2014, and while judicially challenging the Commission’s approach, the organisers started a ‘self-organised ECI’, which attempted to collect signatures outside the ECI’s legal framework. The campaign eventually collected more than three million signatures, which the organisers handed over to the Commission in October 2015.Footnote ⁹⁶ Between 2014 and 2017, several developments took place regarding TTIP and CETA, including 15 negotiating rounds on TTIP up to October 2016, and a proposal in July 2016 by the Commission to the Council for the signature and conclusion of CETA.Footnote ⁹⁷ CETA was signed in October 2016,Footnote ⁹⁸ achieving the exact opposite of what the ‘Stop TTIP’ organisers were asking through their ECI. This sequence of events means that one of the basic goals of the Initiative has become redundant.

In 2017, the Commission reconsidered the 2014 proposal of the organisers, as a follow-up action to the annulment of its initial decision by the General Court.Footnote ⁹⁹ It registered the ECI only in so far as the campaign concerns the TTIP negotiations which are, in any case, currently frozen. The signature collection period for the ECI ended 10 July 2018, without any signs—online, at least—that the campaign was actively collecting signatures.Footnote ¹⁰⁰ There are also no signs in the Commission’s Decision that it might accept the previously collected 3 million signatures as fulfilling the signature quotas for the newly-registered ‘Stop TTIP’ ECI.

Nevertheless, the impact of the development of the ECI legal admissibility test on international agreements signed by the EU go beyond the specifics of the ‘Stop TTIP’ ECI. In particular, the CJEU’s contribution may become relevant in the context of another, even more pertinent issue: Brexit. There have already been four proposed Initiatives linked with Brexit. Two of them were rejected by the Commission: ‘Stop Brexit’ and ‘British Friends – Stay with Us in EU’. The others, namely ‘EU Citizenship for Europeans: United in Diversity in Spite of jus soli and jus sanguinis’, ‘Retaining European Citizenship’, and ‘European Free Movement Instrument’ did not manage to reach one million signatures.Footnote ¹⁰¹ Of these registered ECIs, the former ECI suggested the prevention of the Brexit process altogether, while the other three proposed actions to safeguard citizens’ rights during the Brexit process. As such, these particular examples are not directly linked with acts for the conclusion of an international agreement (Article 207 and 218 TFEU), which were the bone of contention in the Stop TTIP case.Footnote ¹⁰² They do illustrate, however, that some citizens have turned to the ECI as a means to try to influence the Brexit negotiations.

It is not unlikely that, in the future, we might see attempts to influence, through an ECI, the future agreement on the UK-EU relationship. Inevitably, for now this argument is speculative and assumes that an agreement between the UK and the EU will be negotiated on the basis of Articles 107 and 218 TFEU after the withdrawal of the UK from the European Union.

Despite its speculative nature, it is worth entertaining for a moment the possibility of using an ECI in the upcoming Brexit negotiations and the way in which this can create a new dimension to citizens’ participation and voice in the Brexit process at the EU level. First of all, it is notable that we have not seen something similar to a Citizens’ Initiative at the national level after the 23 June 2016 EU Referendum. Petitions sent to UK Parliament and a Citizens’ Assembly on Brexit, which took place in September 2017, might be considered participatory instruments in the same spirit as a citizens’ initiative but at the same time different from it.Footnote ¹⁰³ For instance, even if a petition gets to be debated before UK Parliament, the petitioners are not necessarily invited to the debate, while a Citizens’ Assembly is a one-off event that requires the recruitment of citizens to participate in it. What is more, both of them take place at the national level instead of the EU level, and none of them are directly linked to EU citizenship in the way that the ECI is presented to be.Footnote ¹⁰⁴ Instead, the debate in the UK has largely centred around the democratic representation of citizens in the final Brexit agreement through their representatives in Parliament, or through a second referendum, rather than through other means of participation.

A successful ECI attempting to influence the future UK-EU relations by supporting or preventing a future agreement would also be a first in terms of citizens participating in the negotiations at the EU level. In the context of the current Brexit negotiations, the Commission has attempted to emphasise what it deems to be a ‘tailor-made approach to transparency’ that ensures ‘the maximum level of transparency during the whole negotiating process.’Footnote ¹⁰⁵ In addition to enhancing the transparency of the process, there seems to already be one element of public participation in the field of Brexit negotiations at the EU level, in the form of bilateral meetings between Directors-General and organisations of self-employed individuals, or stakeholders such as European associations who can contribute to the negotiations by presenting their take on the EU-wide impact of the UK withdrawal.Footnote ¹⁰⁶ The Commission’s Decision on the publication of information on these meetings refers to Article 11(1) and (2) TEU, which requires EU institutions to give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action, and to maintain an open, transparent, and regular dialogue with representative associations and civil society.Footnote ¹⁰⁷

It is well known, however, that the top-down engagement with stakeholders by virtue of Article 11(1) and (2) TEU is different in nature from the type of bottom-up participation that is supposed to take place through an ECI.Footnote ¹⁰⁸ Article 11(1) and (2) are seen as codifying previous practices by the Commission, which were highlighted in the 2001 White Paper on Governance and aim at involving a number of organised actors (eg representative associations and civil society organisations) in the EU decision-making process for the benefit of improving the policy outcome of that process.Footnote ¹⁰⁹ By way of contrast, the ECI was introduced as a bottom-up participation mechanism that aims at directly involving the citizen in the EU’s decision-making process. In this sense, the use of the ECI would indeed be an innovation for the Brexit negotiations.

Beyond the theoretical advantages of using an ECI to influence the future course of Brexit, opening this door to EU citizens also raises some questions. Once again under the caveat that we may not even see an ECI attempting to influence the future UK-EU agreement, one can look ahead and wonder how appropriate or suitable it would be to allow citizens of the remaining 27 EU Member States to influence the Brexit negotiating process. Let us assume, for the sake of argument and based on the current state of play on Brexit, that the UK has withdrawn from the EU, the transition agreement has expired on 31 December 2020, and the Commission has proposed the initiation of negotiations for the conclusion of an international agreement under Article 218 TFEU between the EU and the UK as a third country.Footnote ¹¹⁰ On the basis of EU primary law (Article 11(4) TEU), an ECI can be brought by ‘not less than one million citizens who are nationals of a significant number of Member States’. Furthermore, according to the current ECI Regulation, the signatories of an ECI shall come from seven EU Member States, while the organisers of an ECI ‘shall be citizens of the Union’.Footnote ¹¹¹

This would lead us to the following—perhaps paradoxical—situation: In post-Brexit EU, a group of citizens from Member States other than the United Kingdom, could bring an Initiative supported by signatures from citizens from Member States other than the United Kingdom to influence a process that concerns the future relationship of the United Kingdom with the EU. Of course, one could make the same argument as the one above about any international (trade) agreement that concerns the EU and a third-country. Yet, the roots of Brexit in UK citizens’ sentiments of repatriating control and reclaiming sovereignty, as well as the attachment of sovereignty to nationhood, could be said to distinguish an ECI concerning Brexit than an ECI concerning any other international agreement negotiated by the EU.Footnote ¹¹²

The extent to which British citizens can use an ECI to influence the Brexit process is a related issue. Whether this is an actual possibility for the future depends primarily on when the ECI Regulation will cease to apply to the United Kingdom. It might be the case that the ECI Regulation will become inapplicable in the United Kingdom from even before the transition period, ie from March 2019. It recently transpired that UK Parliament is currently unclear on this point. Although MPs were under the impression that the ECI Regulation will not apply to the UK during the transition period, the Minister for the Constitution has taken the position that the ECI Regulation will apply in the UK during the implementation period under the Withdrawal Agreement and Implementation Bill.Footnote ¹¹³ The House of Commons European Scrutiny Committee is currently awaiting clarification by the Minister on this matter. It would seem that, if the MPs are correct, the possibility for British citizens to influence the Brexit process through an ECI is already curtailed, as any Initiative that is registered now will have less than twelve months to collect the necessary one million signatures.

The discussion so far has analysed the most pertinent developments that have taken place to the ECI’s legal admissibility test since the inception of the mechanism in 2012, thus outlining the evolution of the test in the last six years. Changes to the interpretation and application of the test have resulted from the CJEU’s intervention (eg on the concept of ‘legal acts’) and the Commission’s own revised approach to the test (eg on partial registration). We have also discussed some of the consequences in practice of the evolution of the ECI legal admissibility test, touching upon the question of whether the changes are able to transform the ECI to a more extensive and more effective instrument of public participation, or whether they are merely creating the misleading impression that the ECI was given fresh life. The subsequent section further engages with this question by evaluating some of the limitations to the developments discussed so far.