OTRA HONRA PERDIDA

So far the Commission’s stated policy has been to refuse to register initiatives that propose or require treaty amendment.25 If this were to continue it would mean that the largely intergovernmental process for legitimisation of the EU’s constitutional framework would remain unaffected by introducing the ECI. However, the Commission has already diverted from this policy

21 _{See list of referenda held in relation to EU in F Mendez, M Mendez, V Triga, Referendums and the European}

Union: a comparative enquiry (CUP 2014) 24-5.

22

Referenda in the UK and Portugal were not held once the Constitutional treaty had been rejected by voters in the referenda in France and the Netherlands.

23

It should be noted that only Ireland held a referendum to ratify the Lisbon Treaty. It will be interesting to see the number of Member States that use referenda to ratify the next EU treaty amendment and whether the upward trend is returned to.

24 _{The Council and European Council are the intergovernmental character institutions as they are legitimised}

indirectly through the Member States. The Commission and the European Parliament are supranational as they are legitimised at EU level, by direct EU citizen elections for the European Parliament.

25 _{For comment on the Commission’s position in relation to the inclusion of a request for treaty amendment in}

when registering the ‘Let me vote’initiative,26 which proposed a change to Art 20(2) TEU; accepting in the process that treaty amendment can, in their view and in certain circumstances, be a part of the ECI.27 The Commission’s position is that treaty amendment that is triggered by a special revision procedure, such as the passerelle clause of Art 25 TFEU, can be the subject of an ECI proposal, even though an ECI proposal that would require the initiation of the ordinary revision procedure cannot. The Commission argues that there is a different legal character between the two treaty revision procedures and that the ECI proposal to extend voting rights for EU citizens can be registered because, although it does ask for a change in the TEU, it does not require a new power to be granted in the Treaties for the proposal to be acted upon. Whether this argument is sustainable or not, it does raise the question of using a supranational democratic instrument to initiate treaty amendment, which challenges the current democratic paradigm.

The arguments about whether it is lawful to request or require treaty amendment as part of an ECI proposal were analysed in chapter two.28 The conclusion was that it could be lawful for ECI proposals to include treaty amendment, particularly as a result of Art 48(2) TEU, which provides the supranational EU institutions, the European Parliament and the Commission, a limited opportunity to influence the treaty change agenda by submitting treaty amendment proposals to the European Council via the Council of ministers.29 This not only challenges an EU democratic paradigm that predominantly reserves treaty change legitimisation to Member State processes and institutions, but is of particular significance for the ECI because it directly calls in to question the position adopted by the Commission that the ECI cannot be used by EU citizens to propose treaty amendment. By excluding treaty amendment from the ECI, the Commission leaves a position where EU institutions can propose amendments to the Treaties via Art 48(2) TEU and blur the lines of the EU democratic paradigm, but EU citizens cannot do the same by using the ECI to request the Commission to consider using the existing powers provided by Art 48(2) to make a proposal for treaty amendment.30

26

Further details available at <http://ec.europa.eu/citizens- initiative/public/initiatives/obsolete/details/2012/000006> accessed 13 Apr 2015.

27 _{Detailed discussion about the Commission’s decision about the Let me Vote initiative can be found above on}

pages 108-110, ch 2.

28

Detailed discussion can be found above on pgs 107-111, ch 2.

29

Art 48(2) states that ‘The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.

30 _{The Commission confirmed its position that an initiative cannot rely on Art 48(2) to support its admissibility}

It may be arguable that it is lawful for treaty amendment to be a part of an ECI proposal, but there are also democratic and political arguments to be considered in relation to this argument. ECI campaigners wanting further democratic participation continue to press for ECI proposals to be able to include treaty amendment.31 They argue that if the aim of the ECI is to bring citizens closer to the Union through either facilitating political debate, or through enabling citizens to directly influence the whole of the EU political agenda, then cutting the instrument off from the EU constitutional order in the Treaties, and many of the most significant and fundamental issues of the Union, is unlikely to help achieve this. Increasing the scope of the ECI to include treaty amendment, it is argued, would increase the salience of the issues able to be proposed by an ECI, increase the public debate generated and citizen influence over the political agenda, and therefore significantly enhance the democratic potential of the ECI. If increasing democratic participation were the priority of the ECI, then including treaty amendment would be one way to maximise the extent to which it were met.

Although there could be democratic value in extending the scope of the ECI, it might on the other hand be argued that Member State citizens already have sufficient opportunity to legitimise EU treaty amendments at state level. In the UK, for example, the EUA referenda give citizens a direct democratic means of legitimising EU treaties, which supplements the existing citizen participation through parliamentary elections. This raises the question of whether there are democratic benefits for citizens to be able to legitimise the EU treaties at supranational level as EU citizens and also as Member State citizens. One answer is that there could be value in having an ECI that provides a message from citizens about the interests of the Union as a whole to complement the presumably national interest expressed in a Member State level referendum.32 The ECI could give Member State citizens, in the UK or elsewhere, the opportunity to support a treaty amendment proposal that is not necessarily a strong enough national concern to trigger a national institutional response, but which Member State citizens may think is a significant EU issue and, when combined with support from other citizens in other Member States, is of enough concern for the proposal to reach the ECI support thresholds. Furthermore, citizens of Member States that do not hold a referendum to ratify treaty amendment and only have the infrequent and imprecise opportunity of electing representatives to indicate whether they approve of the constitutional framework of the EU, might benefit from a direct opportunity to support treaty change. Citizen engagement with treaty

31

<http://www.citizens-initiative.eu/position-on-treaty-amendments> accessed 8 July 2015.

32 _{This of course assumes that UK citizens are considering supranational/EU level issues when supporting an}

ECI and that the ‘second order’ criticisms of the European Parliament do not apply to the ECI. On second order voting in European Parliament elections see for example S Hix ‘What is wrong with the European Union and How to fix it’ (Polity 2008). A Glencross, ‘First or second order referendums? Understanding the votes on the EU constitutional treaty in four EU Member States’, [2011] Western European Politics 755.

amendment through the ECI as EU rather than Member State citizens could therefore be of some democratic value.

A second possible benefit of allowing the ECI to be used for treaty change is that Member State citizens would have an opportunity to directly influence the actual content of the treaty change agenda that is otherwise denied to them. Even in Member States, such as the UK, where a referendum is held to ratify treaty amendment, citizens are only given the opportunity to influence a proposed policy outcome through stating their approval, or not, of the proposal. A referendum does not provide an opportunity, as the ECI does, to influence the content of the EU agenda by proposing a new policy position for public debate because the existing institutions decide which situations and subject matter trigger a referendum. The distinction between influencing the policy agenda and having a policy veto is one of the key differences between the democratic opportunity provided by the ECI and that provided by the EUA. The ECI could complement the Member State use of referenda, therefore, by providing Member State citizens with a formal route of democratic participation that increases the level of public debate in relation to EU policy, influences the treaty amendment agenda, and which compensates for the weakness of referenda in terms of providing citizens with direct agenda influence.

It may be arguable that it is lawful for treaty amendment to be part of the ECI and there may be democratic value in extending its scope, but the institutional framework of the EU and the political tensions within it mean that treaty amendment is unlikely to become part of an EU level instrument such as the ECI. Before commenting on this, it is worth noting that any concerns about the impact that extending the scope of the ECI to include treaty amendment might have on the direction of EU policy or its institutional or constitutional framework are unlikely to be realised, because any proposal from citizens for treaty amendment must pass through the existing political institutions during the treaty amendment process. This representative ‘filter’ starts with the control the Commission has over the registration of ECI proposals and the weak legal obligation imposed on it by citizen support for an ECI proposal. This means that even if treaty amendment is accepted as a subject of ECI proposals there is no obligation on the Commission to pass on such a proposal to the Council. Then if the Commission did decide to pass on a proposal for treaty amendment, the filter of issues continues through the long treaty revision process controlled by Member State governments so that, even if citizen deliberation and agenda influence are given a wide scope that includes treaty amendment, the risk of uncoordinated, unexpected or sub-optimal developments in the EU Treaties is significantly reduced.

The request by an ECI for the Commission to propose treaty amendment would be a request for the Commission to propose legal acts that sit outside its principal activity of initiating EU legislation in the ‘general interests of the Union’.33 It would increase the extent to which the Commission becomes involved in the treaty amendment process ordinarily legitimised via Member State democratic means. If an initiative that included a request for the Commission to propose treaty amendment were registered, succeeded in reaching the necessary support thresholds to trigger consideration by the Commission, and was submitted to the Council by the Commission, then it would increase supranational institutional involvement in treaty amendment and open up a new supranational avenue for proposing treaty amendment. This would be a direct challenge to the current EU democratic paradigm that ordinarily provides for Member State control over treaty amendment through a largely intergovernmental process. It seems unlikely therefore that Member States would accept this incursion in to their role as ‘masters of the treaties’, something which is indicated by the UK government implementation of the EUA ‘referendum locks’. This highlights the fact that one of the difficulties of strengthening EU level democracy is that the corollary may be a lessening of state control over the Treaties.

The Commission may also be reluctant to risk any damage to its reputation that might arise from the ECI giving it a stronger position within the Treaty amendment process than Member States think is legally justified. The Commission has a supranational role of promoting Union interests, but this authority rests on the existence of the treaties and the provisions within them. If treaty amendment were included in the ECI process and the Commission started regularly making treaty amendment proposals, the competence of the Commission could be viewed as creeping beyond its established boundaries and be detrimental to its political legitimacy in the long run.34 The Commission must stay within the bounds of the role conferred on it by the Member States; its role is not conferred directly by EU citizens. If the Commission starts to push beyond its treaty allocated competence, even if it may be doing so to extend the democratic participation of EU citizens, there is likely to be a reaction from the Member States. As a result the Commission could be politically damned if it does allow treaty amendment proposals to be part of the ECI, and democratically damned if it does not.

Whatever the pros and cons of including treaty change in the ECI, or the likelihood of it happening, the underlying truth about the relative strength of the participative opportunities under analysis here is indicated by considering the following hypothetical consequence of allowing both EU and UK

33

Art 17 TEU states: ‘The Commission shall promote the general interest of the Union and take appropriate initiatives to that end’.

34 _{‘Nothing has been more detrimental than the Commission overstepping its bounds’, J Weiler ‘The}

citizens to legitimise treaty change, and the possibility of a conflict between Member State and EU level opinion to be played out through direct democracy as a result. An ECI proposal could meet the necessary support thresholds, including the number needed from the UK, to trigger a proposal from the Commission to amend the treaties. The proposal could make it all the way through the ordinary revision procedure and lead to a new treaty being put to the Member States for approval in line with their constitutional requirements. Let us assume that in the UK a referendum vote would be triggered by the provisions in the EUA, and that the proposal supported by a representative number of EU citizens is then rejected in the referendum by a majority of UK citizens. The underlying truth is that EU law, as it stands, would prioritise Member State citizen opinion, as expressed in a Member State referendum, over EU citizen opinion as expressed through an instrument such as the ECI. Ratification is required by all Member States and a majority vote in a Member State will take precedence over the conflicting policy preference indicated by a representative number of EU citizens.35 This puts in stark relief one of the possible difficulties inherent in using direct democracy in a polity with dual citizenship, and the relative strengths of Member State and EU citizenship. In conclusion, there could be democratic benefits for EU legitimacy, if the decision were taken to extend the scope of democratic participation for EU citizens and lessen the distinction between constitutional and legislative legitimisation by allowing the ECI to be used to propose treaty amendments. It would also be a way to resolve the inconsistency between allowing supranational institutions, through Art 48(2), to propose treaty amendment, but at the same time not allowing EU citizens to include treaty amendment in an ECI proposal. However, the impact of such a change in the dual democracy of the EU is likely to be limited by the legislative design of the ECI itself, the institutional filters a proposal would have to navigate in the EU legislative process, and ultimately must give precedence to Member State citizen opinion. Furthermore, the current democratic paradigm, with Member States designated as the ‘masters of the treaties’, would be undermined by a supranational instrument of direct democracy that leads to EU level proposals through the Commission. With the Commission also seemingly wary of including treaty amendment in a supranational instrument of direct democracy because of possible damage to the Commission’s reputation and political legitimacy, this situation seems unlikely to change.