The Changing Role of Citizens in EU Democratic Governance 9781509950829, 9781509950850, 9781509950843

Table of contents :
Foreword
Acknowledgements
Contents
List of Contributors
PART I: THE EVOLVING INSTITUTIONAL POSITION OF THE CITIZEN IN EU PUBLIC LAW
1. The Institutionalisation of Citizens in the EU: Citizenship and Democracy
I. Citizens as Public Law Actors: Theme, Relevance and Objectives
II. Political Citizenship in Flux: Participation Beyond Elections
III. The EU's Democracy Disconnects: Participation Beyond Representation
IV. Structure
2. The European Politeia: Democracy and Citizenship without a State
I. Citizens in the European Democratic Formula and why it Matters
II. The European Demoi in the Treaties
III. Active Citizenship as Part of a 'System of its Kind'
IV. The Contribution of the Lisbon Treaty to Defining the European Political Formula
V. Is there a European Demos in the Making?
VI. The Pros and Cons of a European Politeia without a European Demos
VII. Concluding Remarks
3. Understanding the Unstable Frames of Citizen Participation in the EU: The Field Effect, Public Sphere and Governance Functions
I. Introduction
II. The Changing Structures of Opportunity for Civil Society in the EU
III. Why Do Changes in Participation Opportunities Matter?
IV. Conclusion: Beyond Insiders and Outsiders
PART II: CITIZENSHIP BEYOND ELECTIONS
4. The Right to Petition, EU Citizens and the European Parliament: Rise of the Triad?
I. Introduction
II. The Institutional Context
III. The Actual Use of Petitions: A Quantitative Survey
IV. Actual Use: A Qualitative Survey
V. Conclusion: Exploding the Myth(s)
5. Fostering Citizens’ Control Over and Participation in EU Democratic Life: The Ever-Increasing Importance of the European Ombudsman
I. Introduction
II. The European Ombudsman as a Guardian of the Right to Good Administration and European Citizenship: A Win-Win Situation
III. Fostering Citizens' Participation
IV. Fostering Citizens' Control
V. Concluding Remarks
6. What Role for Citizens in Ongoing Legislative Processes? The Legal Implications for Transparency and Access to Documents
I. Introduction
II. The Legal Framework on Transparency and Access to Documents
III. Transparency in 'Proposal-Making'
IV. Transparency in Ongoing Trilogues
V. Critical Assessment and Outlook
VI. Conclusions
PART III: DEMOCRACY BEYOND REPRESENTATION
Participation and EU Integration
7. From Paris with Love: President Macron’s Democratic Conventions in Context
I. Introduction
II. Envisioning EU Democratic Renewal
III. The Institutional Set-up and Context of the Democratic Conventions
IV. Outcomes of the Democratic Conventions and the Wider Citizen Consultations
V. Assessment in Light of the EU's Existing Democratic Settlement
VI. Concluding Remarks
8. The Conference on the Future of Europe: Bringing the EU Closer to its Citizens?
I. Introduction
II. Citizen Consultation Initiatives at the National Level: The Case of Belgium
III. The Conference on the Future of Europe
IV. Concluding Remarks
9. EU Participatory Democracy: Citizens’ Assemblies and the Conference on the Future of Europe
I. Introduction
II. Strong Participatory Democracy
III. Citizens' Assembly to Renew Engagement on the Future of Europe (CARE)
IV. Citizens' Panels of the Conference on the Future of Europe
V. Conclusion
Participation and EU Legislation
10. Is There Anybody Out There? The Role and Functioning of Pre-legislative Consultations in the EU
I. Introduction: Innovative Solutions to Old Problems?
II. A Paradigm Shift in EU Policy-Making
III. The Better Regulation Agenda and the Democratic Role of Pre-legislative Consultations
IV. Setting the Standards for European Stakeholder Consultations
V. The Online Consultations Regime
VI. The Participation of Represented Interests in Pre-legislative Consultations
VII. Conclusions
11. The European Citizens’ Initiative: Towards a User-Friendly, Participatory and Powerful Agenda Initiative for the EU
I. Introduction
II. Designing the ECI and Unrealistic Expectations
III. The ECI in Practice: Expectations Meet Reality
IV. Revising the ECI
V. Conclusion
12. The European Citizens’ Initiative: Caught between Executive Dominance and Judicial Restraint?
I. Introduction
II. The Evolution of the Legislative Framework
III. Judicial Restraint in the Court's Interpretation of the Legal Framework?
IV. The Outcome of Successful ECIs: A Showcase of Executive Dominance?
V. Ways Forward?
VI. Conclusion
13. The Role of the European Economic and Social Committee in Improving EU Citizen Participation
PART IV: CHALLENGES AND FUTURE PROSPECTS
14. Beyond the Post-it: Citizen Engagement in Policy-Making through Material Deliberation
I. Introduction
II. Challenging the 'Technologies of Participation'
III. Two Cases of Material Deliberation and Co-creation Run by the JRC Makerspace
IV. The Potential of 'Making' for Citizen Engagement in the European Commission
V. Concluding Remarks
15. Looking for the Silver Lining: The COVID-19 Pandemic as a Window of Opportunity for Citizen Participation in the EU
I. Introduction
II. New Crisis, Old Stakes
III. The Pandemic Moment
IV. Citizens' Demands on the CoFoE Digital Platform: A Preliminary Analysis
V. Conclusion
16. Conclusions
Bibliography
Index

Citation preview

THE CHANGING ROLE OF CITIZENS IN EU DEMOCRATIC GOVERNANCE This collection discusses the challenges of reforming EU democracy through increased citizen participation beyond elections. It asks fundamental questions such as whether the institutionalisation of citizens in EU public law is a prerequisite for addressing these challenges and the extent to which such institutionalisation is taking place in the EU. To these ends, the contributors analyse the latest institutional initiatives, proposals and practices such as: • • • • • • •

citizen assemblies; citizen consultations and dialogues on European integration and draft legislation; the Conference on the Future of Europe; the reform of the European Citizens’ Initiative; the evolving role of the European Ombudsman; citizen petitions to the European Parliament; the roles of the civil society and the European Economic and Social Committee

Offering reflections on the impact of the COVID-19 pandemic, this book is a much-needed reminder of the importance of the role of citizens in EU governance. Volume 117 in the Series Modern Studies in European Law

Modern Studies in European Law Recent titles in this series: Standing to Enforce European Union Law before National Courts Hilde Ellingsen The Relative Authority of Judicial and Extra-Judicial Review: The EU Courts, the Boards of Appeal and the Ombudsman Michal Krajewski Responsive Human Rights: Vulnerability and the ECtHR Corina Heri The Architecture of Fundamental Rights in the European Union Šejla Imamovic The EU and its Member States’ Joint Participation in International Agreements Edited by Nicolas Levrat, Yuliya Kaspiarovich, Christine Kaddous and Ramses A Wessel The UN Convention on the Rights of Persons with Disabilities and the European Union: The Impact on Law and Governance Carmine Conte EU Criminal Law, Second Edition Valsamis Mitsilegas The EU as a Global Digital Actor: Institutionalising Global Data Protection, Trade, and Cybersecurity Elaine Fahey Exporting the European Convention on Human Rights Maria-Louiza Deftou Judicial Authority in EU Internal Market Law: Implications for the Balance of Competences and Powers Vilija Velyvyte The Changing European Union: A Critical View on the Role of Law and the Courts Edited by Tamara Capeta, Iris Goldner Lang and Tamara Perisin The Structural Transformation of European Private Law: A Critique of Juridical Hermeneutic Leone Niglia The Future of EU Constitutionalism Edited by Matej Avbelj The Changing Role of Citizens in EU Democratic Governance Edited by Davor Jančić For the complete list of titles in this series see www.bloomsbury.com/uk/series/modern-studies-in-european-law/

The Changing Role of Citizens in EU Democratic Governance Edited by

Davor Jančić

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2023 Copyright © The editor and contributors severally 2023 The editor and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2023. A catalogue record for this book is available from the British Library. A catalogue record for this book is available from the Library of Congress. Library of Congress Control Number: 2022949291 ISBN: HB: 978-1-50995-082-9 ePDF: 978-1-50995-084-3 ePub: 978-1-50995-083-6 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

FOREWORD Democracy, the rule of law and fundamental rights form the foundations of the European Union (EU) and are enshrined in the EU treaties. They apply to all Member States and all candidate states need to comply with them in order to join the EU. This is because it is only in a healthy and thriving democracy that citizens can freely express their views, choose their political leaders and representatives, as well as have a say about their future at the European, national, regional and local levels. This book is not only a reminder that participatory and deliberative democracy have come far, and that challenges have yet to be fully addressed, but these chapters constitute a call to action: we must continue nurturing European democracy. In the same vein, the European project has proven that democracy is always evolving and never static. Since the foundation of the EU, our democratic system in Europe has made great strides in citizens’ engagement, but in order for participation to be even more meaningful, citizens must continue making electoral choices in a public space where a plurality of views are expressed freely. Free media, academia and civil society must also play their roles in stimulating open debates. Our democratic system can only thrive in a climate where freedom of information and freedom of expression are both upheld, in line with the Charter of Fundamental Rights, allowing everyone to express their views, regardless of how critical they are towards the governments and those in power. Safeguards, checks and balances, and institutions that fulfil their roles and side with the rules of pluralistic democratic debates are all essential to our democratic and European way of life. In the context of a plurality of views on the EU, both positive and negative, it is particularly important that we seriously listen to the opinions and views of citizens and engage with them. This is the only way that the EU can successfully maintain its legitimacy since citizens are the beating heart of European democracy. The increasing turnout in the 2019 European elections underscored the vitality of European democracy. At the beginning of her mandate, President Ursula von der Leyen called for a new push for European democracy, with a greater say for Europeans and for Europe to strive for more in nurturing, protecting and strengthening our democracy. In respect to this, having been appointed VicePresident for Democracy and Demography by President von der Leyen in 2019, I have taken on the mission to facilitate greater citizens’ engagement and participation within the EU, and to foster participatory and deliberative democracy as a means to strengthen our representative democracy. This is the next evolution of the European project.

vi  Foreword It is clear to me that European democracy goes beyond voting in elections. To make European democracy even more vibrant and engaging, the European Commission proposed organising a Conference on the Future of Europe: a pan-European exercise to enable people from across the EU to make proposals to shape future EU policies that the European institutions could follow up on. In March 2021 the Presidents of the European Parliament, the Council and the European Commission launched the Conference, signing a joint declaration. European citizens share their ideas and exchange views in 24 languages via an innovative Multilingual Digital Platform. With this platform we opened a truly pan-European public space and tore down the language barrier when it comes to political debate. Any topic can be raised. We listen to citizens’ hopes, concerns and expectations relating to their realities: those linked to climate, the economy, digital developments, global transformation, demographic changes and more. Citizens can also take part in decentralised events organised all across the EU, from mountains to islands. Starting in September 2021, the European Citizens’ Panels brought together some 800 citizens randomly selected to ensure that they are representative of the EU’s diversity, in terms of geographical origin, gender, age, socioeconomic background and level of education. Young people between 16 and 25 made up one-third of each panel. At least one female and one male citizen per Member State were included. These panels met in three deliberative sessions, in person in different venues as well as online. They took on board contributions gathered within the framework of the Conference through the digital platform, providing input to the Conference Plenary by formulating a set of recommendations for the EU to follow up on. In the Plenaries we brought citizens at the very heart of European policymaking to deliberate on a par with elected representatives at the local, regional, national and European levels, as well as representatives of organised civil society and social partners. As such, the Conference offers a unique public forum for an open, inclusive and transparent debate with citizens on a number of key priorities and challenges. Ideas expressed during the Conference will result in concrete recommendations for EU action, and this is the key novelty of the Conference. The final outcome of the Conference was presented in a report to the Joint Presidency in the spring of 2022. The three EU institutions have since been examining how to effectively follow up to this report, each within their own sphere of competences and in accordance with the Treaties. The European Commission is committed to follow up on the outcome, as it is only by giving Europeans a greater say on their future that the EU can successfully achieve long-term legitimacy in its policy-making. At its core, the idea is simple: Europeans from all walks of life must be at the very centre of all our policies. It is only together that we can build our Union of tomorrow. The Conference reflects our diversity, and brings Europe beyond its capital cities, reaching every corner of the EU, and strengthening the link between Europeans and the institutions that serve them, which is particularly important in light of the challenges we face.

Foreword  vii The Conference represents a new form of public participation at the European, national, regional and local levels. It complements the ways in which the Commission has already been engaging citizens and stakeholders in EU policyand law-making – the European Citizens’ Initiative and online public consultations as well as citizens’ dialogues and the European Climate Pact. Since the beginning of my mandate, I invested all my energy in citizens’ engagement and empowerment. My commitment is now to ensure that all citizens who actively engaged in the Conference on the Future of Europe can see the tangible and concrete impact of their deliberations. The process of integrating citizens into European democratic governance remains a complex and challenging undertaking. As such, with contributions from a group of distinguished academics on European studies, this book provides a thorough overview of the topics surrounding citizen participation. It explores various institutional initiatives, proposals and practices surrounding the reform of EU democracy through citizen participation, as well as the challenges, stakeholders and factors that come into play in the process. This book is a significant reminder of the importance of the central role of citizens in EU democratic governance. Dubravka Šuica Vice-President of the European Commission in charge of Democracy and Demography

viii

ACKNOWLEDGEMENTS This volume is the culmination of a series of academic gatherings. Research collaboration began with paper presentations by several contributors to this volume at the panel on ‘The Role of European Citizens in Reforming EU Democracy’, which I convened at the 5th Annual Conference of the International Society of Public Law (ICON) at the University of Hong Kong (25–27 June 2018). Subsequently, I secured two small research grants – a University Association of Contemporary European Studies (UACES) Small Event Grant and a grant from the Queen Mary Institute for Humanities and Social Sciences (QM IHSS) – in order to organise a workshop on citizens and EU democracy. This took place in London at the Graduate Centre of Queen Mary University of London on 15 May 2019 and the decision to pursue a volume on this topic was made there. The speakers at the London workshop included a number of the contributors to the current volume, but also a wider pool of academics and practitioners, including from two Brussels-based organisations: the Centre for European Policy Studies and the Democratic Society. This helped to generate a very stimulating exchange of ideas and opinions from both theoretical and policy-making angles. Papers by a different set of contributors to this volume were then presented at a panel on ‘The Changing Role of Citizens in EU Governance’, which I convened at the 26th International Conference of Europeanists, organised by the Council of European Studies (CES) at the Universidad Carlos III de Madrid (20–22 June 2019). I would like to thank UACES and QM IHSS for the funding that enabled the deepening of academic cooperation that resulted in the present volume. I would also like to thank the contributors for their patience and tremendous effort in completing numerous chapter drafts in very difficult times. The fact that a significant portion of the work on this volume took place during the COVID-19 pandemic and the corresponding restrictive measures was rather challenging. Last but not least, I would like to thank Cheryl, Alexander and Olivia for all the love and support they gave me while I was working on this volume. Davor Jančić Queen Mary University of London London, 3 August 2022

x

CONTENTS Foreword������������������������������������������������������������������������������������������������������������������������v Dubravka Šuica (Vice-President of the European Commission for Democracy and Demography) Acknowledgements������������������������������������������������������������������������������������������������������ ix List of Contributors�����������������������������������������������������������������������������������������������������xv PART I THE EVOLVING INSTITUTIONAL POSITION OF THE CITIZEN IN EU PUBLIC LAW 1. The Institutionalisation of Citizens in the EU: Citizenship and Democracy������������������������������������������������������������������������������������������������������3 Davor Jančić 2. The European Politeia: Democracy and Citizenship without a State����������������31 Susanna Cafaro 3. Understanding the Unstable Frames of Citizen Participation in the EU: The Field Effect, Public Sphere and Governance Functions������������������51 Luis Bouza García PART II CITIZENSHIP BEYOND ELECTIONS 4. The Right to Petition, EU Citizens and the European Parliament: Rise of the Triad?��������������������������������������������������������������������������������������������������71 Henri de Waele 5. Fostering Citizens’ Control Over and Participation in EU Democratic Life: The Ever-Increasing Importance of the European Ombudsman����������������89 Marco Inglese 6. What Role for Citizens in Ongoing Legislative Processes? The Legal Implications for Transparency and Access to Documents��������������������������������105 Natasa Athanasiadou

xii  Contents PART III DEMOCRACY BEYOND REPRESENTATION Participation and EU Integration 7. From Paris with Love: President Macron’s Democratic Conventions in Context�����������������������������������������������������������������������������������������������������������127 Davor Jančić 8. The Conference on the Future of Europe: Bringing the EU Closer to its Citizens?����������������������������������������������������������������������������������������������������149 Maaike Geuens 9. EU Participatory Democracy: Citizens’ Assemblies and the Conference on the Future of Europe�������������������������������������������������������������������������������������169 James Organ Participation and EU Legislation 10. Is There Anybody Out There? The Role and Functioning of Pre-legislative Consultations in the EU�������������������������������������������������������������������������������������193 Paolo Zicchittu 11. The European Citizens’ Initiative: Towards a User-Friendly, Participatory and Powerful Agenda Initiative for the EU������������������������������������������������������213 Mario Mendez 12. The European Citizens’ Initiative: Caught between Executive Dominance and Judicial Restraint?���������������������������������������������������������������������������������������233 Jasmin Hiry-Lesch 13. The Role of the European Economic and Social Committee in Improving EU Citizen Participation�����������������������������������������������������������������������������������251 James Organ and Nikos Vogiatzis PART IV CHALLENGES AND FUTURE PROSPECTS 14. Beyond the Post-it: Citizen Engagement in Policy-Making through Material Deliberation����������������������������������������������������������������������������������������273 Paulo Rosa, Thomas Völker and Ângela Guimarães Pereira

Contents  xiii 15. Looking for the Silver Lining: The COVID-19 Pandemic as a Window of Opportunity for Citizen Participation in the EU�����������������������������������������293 Petar Marković 16. Conclusions��������������������������������������������������������������������������������������������������������305 Davor Jančić Bibliography���������������������������������������������������������������������������������������������������������������311 Index��������������������������������������������������������������������������������������������������������������������������335

xiv

LIST OF CONTRIBUTORS Natasa Athanasiadou is Assistant Professor of EU Law at Maastricht University and a member of the Cabinet of Commissioner Johannes Hahn in the European Commission Susanna Cafaro is Full Professor of EU Law at the University of Salento Luis Bouza García is Associate Professor of Political Science at Universidad Autónoma de Madrid Maaike Geuens is Assistant Professor of Constitutional and Administrative Law at Tilburg University Jasmin Hiry-Lesch is a PhD Candidate at the Faculty of Law, Economics and Finance of the University of Luxembourg Marco Inglese is Senior (tenure-track) Assistant Professor of EU Law in the Department of Law, Politics and International Studies at the University of Parma Davor Jančić is Senior Lecturer in Law at Queen Mary University of London Petar Marković is Ambassador (Head of the Mission) of Montenegro to the European Union, former Policy Leader Fellow at the EUI School of Transnational Governance and former Citizens’ Rights Training Coordinator at the European Citizen Action Service Mario Mendez is Reader in Law at Queen Mary University of London James Organ is Senior Lecturer in Law at the School of Law and Social Justice of the University of Liverpool Ângela Guimarães Pereira is Team Leader on Citizen Engagement in the DG Joint Research Centre of the European Commission and leads the European Commission’s Competence Centre on Participatory and Deliberative Democracy Paulo Rosa is a Policy Analyst in the DG Joint Research Centre of the European Commission Dubravka Šuica is Vice-President of the European Commission for Democracy and Demography Nikos Vogiatzis is Senior Lecturer in Law at the University of Essex Thomas Völker is a Postdoctoral Researcher at the Centre for the Study of the Sciences and the Humanities of the University of Bergen

xvi  List of Contributors Henri de Waele is Professor of International and European Law at the Research Centre for State and Law of Radboud University Nijmegen, Guest Professor of EU External Relations Law at the Faculty of Laws of the University of Antwerp, and Senior Fellow at the Centre for European Integration Studies of the University of Bonn Paolo Zicchittu is Associate Professor of Constitutional Law at the School of Law of the University of Milan-Bicocca

part i The Evolving Institutional Position of the Citizen in EU Public Law

2

1 The Institutionalisation of Citizens in the EU Citizenship and Democracy DAVOR JANČIĆ

I.  Citizens as Public Law Actors: Theme, Relevance and Objectives This edited volume tackles one of the fundamental challenges of European ­integration, which is to enhance the democratic legitimacy and citizens’ ­political ownership of the European Union (EU or Union) through viable, inclusive and effective methods of involving citizens in the making of EU law and policy beyond representative means.1 While the approximation of citizens to decisionmaking forums has been a global phenomenon,2 evidence of the magnitude and ­prominence of this challenge for EU democracy is abundant. On the one hand, EU representative democracy has experienced setbacks. Although the European Parliament (EP) gained greater institutional power in successive Treaty revisions, the Spitzenkandidaten procedure, which the EP says ‘fosters the political awareness of European citizens’ and ‘reinforces the political legitimacy’ of the European Commission and the EP itself,3 was severely dented when, after the European elections of May 2019, the European Council

1 R Tavares, ‘Citizen-Based Paths of Democratization for the EU without New Treaty Making’ in S Hennette et al (eds), How to Democratize Europe (Cambridge, MA, Harvard University Press, 2019) 150–60; S Blockmans and S Russack (eds), Direct Democracy in the EU: The Myth of a Citizens’ Union (Brussels, CEPS/London, Rowman & Littlefield, 2018); R Youngs, Europe Reset: New Directions for the EU (London, IB Tauris, 2017); A Alemanno, ‘Europe’s Democracy Challenge: Citizen Participation in and beyond Elections’ (2020) 21(SI1) German Law Journal 35–40. 2 Open Government Partnership, Global Report 2019: Democracy beyond the Ballot Box, May 2019, www.opengovpartnership.org/campaigns/global-report; C Taylor et al, Reconstructing Democracy: How Citizens are Building from the Ground up (Cambridge, MA, Harvard University Press, 2020). 3 Editorial Comment, ‘Spitzenkandidaten and the European Union’s System of Government’ (2019) 15(4) European Constitutional Law Review 609–18, 612.

4  Davor Jančić decided to bypass the Spitzenkandidat of the winning European People’s Party, Manfred Weber, and instead appointed Ursula von der Leyen as President of the Commission.4 In parallel, while national parliaments, the national-level limb of EU representative democracy, have vividly engaged in informal policy exchanges with the Commission within the Barroso Initiative, the number of reasoned opinions that they issued within the formal early warning mechanism for the monitoring of subsidiarity compliance dwindled in the last five reported years (2016–20),5 with only three yellow cards raised since the entry into force of the Lisbon Treaty, and none since May 2016.6 Similarly, the key existing channels of EU participatory democracy have thus far not been particularly influential in steering the development of EU policies. The democratising potential of the civil society has been questioned, not only because of the Lisbon Treaty’s proclamation of the centrality of representative democracy, but also due to the purely consultative nature of the civic dialogue as well as the technocratic and managerial styles of EU policy-making. This has adversely impacted the participatory impact of civil society organisations and converted them into providers of information to EU institutions.7 This has led scholars to assert that civil society participation has not achieved its democratic mission in EU governance by failing to close gaps in interest representation, to raise public awareness of EU politics and to increase the accountability of EU institutions.8 The same fate is shared by the European Citizens’ Initiative (ECI).9 From its establishment until the end of September 2022, a total of 94 initiatives have been registered, with only six having met the requirements for the Commission to consider them on the merits.10 With one partial exception, the Commission has been hesitant to take the main action requested in the initiative. At the same time, direct democracy in the EU,11 rooted in the organisation of referendums, 4 B Crum, ‘Why the European Parliament Lost the Spitzenkandidaten-Process’ (2022) Journal of European Public Policy (forthcoming), https://doi.org/10.1080/13501763.2022.2032285; M Dawson, ‘Editorial: The Lost Spitzenkandidaten and the Future of European Democracy’ (2019) 26(6) Maastricht Journal of European and Comparative Law 731–35. See a more general critique in M Goldoni, ‘Politicising EU Lawmaking? The Spitzenkandidaten Experiment as a Cautionary Tale’ (2016) 22(3) European Law Journal 279–95. 5 European Commission, ‘Annual Report 2020 on the Application of the Principles of Subsidiarity and Proportionality and on Relations with National Parliaments’ COM (2021) 417, 23 July 2021. 6 Author’s own insight based on the IPEX and European Commission data. 7 A Kutay, ‘Limits of Participatory Democracy in European Governance’ (2015) 21(6) European Law Journal 803–18, 806 and 818. 8 B Kohler-Koch and C Quittkat, De-mystification of Participatory Democracy: EU Governance and Civil Society (Oxford, Oxford University Press, 2013) ch 8. 9 M Weisskircher, ‘The European Citizens’ Initiative is Five Years Old – and it Has Been No Step Forward for EU Democracy’, LSE EUROPP Blog, 7 April 2017, https://blogs.lse.ac.uk/ europpblog/2017/04/07/european-citizens-initiative-five-years-old. 10 Author’s own analysis based on official EU data retrieved from https://europa.eu/citizens-initiative/ home_en. 11 Although some scholars classify the ECI as a form of direct democracy, this book understands it as a participatory instrument because of its place in the Treaty on European Union among the provisions on participatory democracy, and because citizens’ initiatives are largely indirectly procured by civil

The Institutionalisation of Citizens in the EU  5 is infused with credible fears of rejection and resentment, which culminated in Brexit on 31 January 2020. Over 50 national referendums organised to date on EU membership, Treaty revisions and specific EU policy areas have since the turn of the millennium yielded negative results far more frequently than before.12 On the other hand, the positive consequence of the pervading democratic pessimism across the EU is the continuation of a period of reflection on its democratic character. This reflection began in 2001 with the adoption of the Laeken Declaration and the Commission’s White Paper on Governance, and continues to date, owing to Commission President von der Leyen’s ‘new push for European democracy’, which is rooted in ‘a greater say for Europeans’.13 The need to debate the future of EU democratic participation is demonstrated by three important factors outlined below: the citizens’ attitude to European integration; the governing elites’ democracy-oriented initiatives; and, most recently, the outbreak of the COVID-19 pandemic. First, citizens continue to believe in the EU’s added value. Eurobarometer surveys help to shed light on this. The winter 2021/2022 survey shows that most Europeans have since 2004 consistently trusted the EU more than their national governments and parliaments, with a 6% increase in trust at the onset of the ­coronavirus pandemic and a matching decline in trust in national institutions.14 In fact, while citizens were divided as to the EU measures taken to tackle coronavirus, most citizens (62%) trusted the EU to make the right decisions in the future.15 However, the aftermath of the 2019 European elections had a significant negative impact on the public opinion, causing a sharp decrease in citizens’ perception of their say in the EU, with 50% of them responding that their voice does not count in the EU.16 This reversed the upward trend that saw the citizens in mid-2018 for the first time perceiving that their voice does count. A further 52% of the citizens were satisfied with the way democracy works in the EU, compared to 40% who were not.17 Other related surveys paint a similar picture. According to a Pew Research Centre report published in 2019, the majority of the Europeans surveyed believed that the EU promotes peace (74%), democratic values (64%) and prosperity (55%), although they also found the EU to be intrusive (51%) and inefficient (54%) and

society organisations and their outcomes are decided by the Commission. See a similar categorisation in LB García and J Greenwood (eds), ‘The European Citizens’ Initiative: A First for Participatory Democracy?’ (2012) 13(3) Perspectives on European Politics and Society, Special Issue. 12 F Mendez and M Mendez, ‘The Promise and Perils of Direct Democracy for the European Union’ (2017) 19 Cambridge Yearbook of European Legal Studies 48–85. See further F Mendez and M Mendez, ‘The Law and Politics of Direct Democracy in the EU’ in PJ Cardwell and MP Granger (eds), Research Handbook on the Politics of EU Law (Cheltenham, Edward Elgar, 2020) ch 6. 13 Ursula von der Leyen, Political Guidelines for the Next European Commission 2019–2024, ‘A Union That Strives for More: My Agenda for Europe’, 19, https://ec.europa.eu/info/sites/default/files/ political-guidelines-next-commission_en_0.pdf. 14 Standard Eurobarometer 96, ‘First Results: Winter 2021–2022’, 9. 15 Standard Eurobarometer 93, ‘The EU and the Coronavirus Outbreak: Summer 2020’, 21. 16 Standard Eurobarometer 92, ‘First Results: Autumn 2019’, 10. 17 ibid 12.

6  Davor Jančić that it does not understand the needs of its citizens (62%).18 The same survey also showed that European publics tend to be favourable to the EU and that on average the EU as a whole is rated by citizens more highly (62%) than some of its key institutions (50% for the EP and 48% for the Commission).19 These statistics, which are largely confirmed by academic research,20 demonstrate that Europeans have an overall positive image of the EU, although they harbour a variety of misgivings about the Union’s institutional functioning. Second, and relatedly, EU and national political leaders have taken a number of initiatives to bolster citizens’ trust in the Union and give them a more visible role in shaping EU policy agendas. The five scenarios proposed by the Juncker Commission in the White Paper on the Future of Europe of March 2017 were all citizen-focused and aimed to reconnect elite-driven politics with its final addressees – the citizens. The proclaimed reason for such a focus is the awareness of popular disaffection with mainstream politics, which has not only caused indifference and mistrust among citizens, but has also opened up new opportunities to reform EU democracy towards a more effective public debate and political interaction with citizens.21 The Commission has further embarked on wide-ranging direct consultations and dialogues with citizens.22 The French President Emmanuel Macron set in motion EU-wide democratic conventions in the Member States to consult citizens on the Union’s future evolution and policy priorities.23 Citizen assemblies have been organised on topics ranging from electoral reform to abortion and climate change in countries ranging from Ireland and the UK to France and Belgium, raising the question of whether such assemblies should also be organised at the EU level. These initiatives culminated in the Conference on the Future of Europe (CoFoE), which enabled citizens to have a say over the trajectory of European integration. Yet, the unsystematic, informal and often inconsequential nature of the Union’s political engagement with its citizens poses new problems for the way we understand, construct and assess democracy and legitimacy in the EU. Third, the policy responses to the COVID-19 pandemic have caused a far-reaching global reconfiguration of the way we live, work and govern our ­societies. The restrictions to fundamental freedoms, the assertion of the e­ xecutive with negative consequences for the rule of law, the uncertainties caused by fiscal

18 R Wike et al, ‘Europeans Credit EU with Promoting Peace and Prosperity, But Say Brussels is out of Touch with its Citizens’ Pew Research Centre, 19 March 2019, 2. 19 ibid 13. 20 SB Hobolt, ‘Citizen Satisfaction with Democracy in the European Union’ (2012) 50(S1) Journal of Common Market Studies 88–105, 100. 21 European Commission, ‘White Paper on the Future of Europe: Reflections and Scenarios for the EU27 by 2025’ COM (2017) 2025, 1 March 2017, 12–13. 22 C Marxsen, ‘Open Stakeholder Consultations at the European Level: Voice of the Citizens?’ (2015) 21(2) European Law Journal 257–280. 23 C Stratulat et al, ‘En Marche l’Europe? A Strategy to Implement Democratic Conventions’ (2018) EPC Discussion Paper, https://www.epc.eu/en/Publications/En-Marche-lEurope--A-strategy-to-imple ment-democratic-conventions~2047ac.

The Institutionalisation of Citizens in the EU  7 and public health measures, and the rise of online interaction and digital governance are among the factors that may have significant implications in terms of public trust, democratic inclusion and citizen participation in democratic processes.24 With public policy touching on citizens’ lives and livelihoods in very tangible and personal ways, and with the necessity to make swift decisions hampering transparency and public debate, it is more important than ever to recognise the value of ‘active democratic citizenship’25 and enable rather than stifle citizen involvement in decision-making.26 Concrete examples of citizens’ participation in pandemicrelated deliberations include the Citizens’ Committee on vaccination against COVID-19 and the Nantes Métropole Citizens’ Convention on COVID-19 in France, or the online public dialogues on COVID-19 winter preparedness, the West Midlands Combined Authority’s Citizens’ Panel on COVID-19, and Bristol’s deliberative process on COVID-19 in the UK.27 However, it is still unclear how coronavirus has impacted citizen participation at the EU level. This volume addresses the need, exemplified by the aforementioned challenges and policy initiatives, for a deeper reflection on the citizen-oriented developments in governance at the EU and national levels. While citizens as such are not new to EU democracy debates, there has been a tangible shift in emphasis concerning the notion of and approach to the politicisation of the EU,28 which endeavours to put citizens at the epicentre of the European public discourse.29 Until the entry into force of the Lisbon Treaty, European integration has viewed citizens primarily as voters in elections and referendums. However, many formal and informal avenues of participation, which give citizens a voice rather than a vote, have meanwhile developed which treat citizens not only as actors who delegate power to others, but also as actors of their own right. Citizens are increasingly invited to act as policy entrepreneurs, value promoters and lobbyists.30 The volume therefore regards EU citizens as modern political subjects, conceived not only as passive recipients of rights and privileges under EU law, but

24 C Harris and I Hughes, ‘The Covid-19 Pandemic Has Exposed Why We Urgently Need to Re-imagine Democracy’, Democratic Audit, 18 June 2020, www.democraticaudit.com/2020/06/18/ the-covid-19-pandemic-has-exposed-why-we-urgently-need-to-re-imagine-democracy. 25 A Fung, ‘COVID-19 Requires More Democracy, Not Less’, Boston Review, 23 April 2020, http:// bostonreview.net/politics/archon-fung-covid-19-requires-more-democracy-not-less. 26 A Alemanno, ‘Coronavirus and Europe’s Incomplete Union’, Carnegie Europe, 23 June 2020, https:// carnegieeurope.eu/2020/06/23/coronavirus-and-europe-s-incomplete-union-pub-82111; J Keutgen, ‘Participatory Democracy in Times of Covid-19’, Westminster Foundation for Democracy, 6 April 2020, https://www.wfd.org/commentary/participatory-democracy-times-covid-19; HR Gilman, ‘Participatory Democracy in the Era of COVID-19’, Georgetown University Beeck Centre, 20 May 2020, https://beeckcenter.georgetown.edu/participatory-democracy-in-the-era-of-covid-19. 27 Participedia, ‘Citizens’ Voices & Values on COVID-19’, https://sites.google.com/participedia.net/ citizensvoicescovid. 28 M Dawson and F de Witte, ‘From Balance to Conflict: A New Constitution for the EU’ (2016) 22(2) European Law Journal 204–24. 29 See the citations in n 1 above. 30 A Alemanno, Lobbying for Change: Find Your Voice to Create a Better Society (London, Icon Books, 2017).

8  Davor Jančić also as active participants in the political shaping of these rights and privileges.31 The central argument of the volume and its overarching theme is that we are witnessing a push towards the institutionalisation of citizens in EU governance to a greater extent than before. The main research objective is to discuss the opportunities for citizens’ collective and individual action in EU governance. To what extent can citizens be considered an active part of the post-crisis ‘retransformation of Europe’?32 To what extent can citizens be at the heart of ‘Regeneration Europe’, which calls on us, the citizens, to re-appropriate the political space and ‘articulate our claims on the European level directly’?33 These queries are particularly important to investigate in a Europe threatened by disintegrative impulses exemplified by Brexit; a Europe with wavering solidarity during the COVID-19 pandemic and the migration crisis; a Europe where democracy and rule of law are backsliding or facing illiberal threats;34 and a Europe where many decisions, especially at a time of multiple crises, are made in the name of ‘the people’ or ‘citizens’, but with little meaningful public participation and debate.35 The existing academic and policy debates often concentrate on EU democracy from the perspectives of political control and accountability of EU institutions,36 and the strengthening of the electoral and parliamentary means of public participation.37 Such a research direction flows from the principle that the Union’s functioning is based on representative democracy (Article 10(1) of the Treaty on 31 C Colliot-Thélène, ‘What Europe Does to Citizenship’ in D Chalmers et al (eds), The End of the Eurocrats’ Dream: Adjusting to European Diversity (Cambridge, Cambridge University Press, 2016) 127–45, 128. 32 D Chalmers et al, ‘The Retransformation of Europe’ in Chalmers et al (n 31) 1–28. 33 M Hartmann and F de Witte, ‘Regeneration Europe: Towards Another Europe’ (2013) 14(5) German Law Journal 441–48, 444. 34 KL Scheppele et al, ‘EU Values are Law, After All: Enforcing EU Values through Systemic Infringement Actions by the European Commission and the Member States of the European Union’ (2020) 39 Yearbook of European Law 3–121; D Adamski, ‘The Social Contract of Democratic Backsliding in the “New EU” Countries’ (2019) 56 CML Rev 623–66; P Castillo-Ortiz, ‘The Illiberal Abuse of Constitutional Courts in Europe’ (2019) 15 European Constitutional Law Review 48–72; T Drinóczi and A Bień-Kacała, ‘Illiberal Constitutionalism: The Case of Hungary and Poland’ (2019) 20 German Law Journal 1140–66; B Stanley, ‘Backsliding Away? The Quality of Democracy in Central and Eastern Europe’ (2019) 15(4) Journal of Contemporary European Research 343–53; U Sedelmeier, ‘Political Safeguards against Democratic Backsliding in the EU: The Limits of Material Sanctions and the Scope of Social Pressure’ (2017) 24(3) Journal of European Public Policy 337–51; L Pech and KL Scheppele, ‘Illiberalism within: Rule of Law Backsliding in the EU’ (2017) 19 Cambridge Yearbook of European Legal Studies 3–47. 35 FW Scharpf, ‘De‐constitutionalisation and Majority Rule: A Democratic Vision for Europe’ (2017) 23(5) European Law Journal 315–34, 329. 36 JP Olsen, ‘Democratic Accountability and the Changing European Political Order’ (2018) 24(1) European Law Journal 77–98; M Dawson, ‘The Legal and Political Accountability Structure of “Post-crisis” EU Economic Governance’ (2015) 53(5) Journal of Common Market Studies 976–93. 37 K Granat, The Principle of Subsidiarity and Its Enforcement in the EU Legal Order: The Role of National Parliaments in the Early Warning System (Oxford, Hart Publishing, 2018); AJ Cornell and M Goldoni (eds), National and Regional Parliaments in the EU-Legislative Procedure Post-Lisbon: The Impact of the Early Warning Mechanism (Oxford, Hart Publishing, 2017); D Jančić (ed), National Parliaments after the Lisbon Treaty and the Euro Crisis: Resilience or Resignation? (Oxford, Oxford University Press, 2017).

The Institutionalisation of Citizens in the EU  9 European Union (TEU)). Yet, non-parliamentary means of citizen participation in the ‘democratic life of the Union’ (Articles 10(3) and 11 TEU) are mushrooming,38 and this trend is insufficiently accounted for in EU law and governance studies. Most of the existing literature addresses citizens either from the perspective of a specific channel of direct or participatory democracy – such as the role of referendums,39 the ECI40 or civil society.41 Another strand of the existing literature helpfully takes the perspective of citizenship,42 while the most recent literature has moved towards more citizen-centred analyses of EU democracy.43 In this respect, it has convincingly been argued that ‘the insufficient empowerment of citizens is the crux of Europe’s current legitimacy malaise’, which could begin to be remedied through citizen summits,44 European Question Time or a European People’s Assembly.45 However, the literature is yet to systematically examine whether and, 38 V Cuesta Lopez, ‘The Lisbon Treaty’s Provisions on Democratic Principles: A Legal Framework for Participatory Democracy’ (2010) 16(1) European Public Law 123–38. 39 F Cheneval and M Ferrín, ‘Referendums in the European Union: Defective by Birth?’ (2018) 56(5) Journal of Common Market Studies 1178–94; J Snell, ‘European Union and National Referendums: Need for Change after the Brexit Vote?’ (2017) 28(6) European Business Law Review 767–784; F Mendez et al, Referendums and the European Union: A Comparative Inquiry (Cambridge, Cambridge University Press, 2014); S Tierney, ‘The People’s Last Sigh? Referendums and European Integration’ (2012) 18(4) European Public Law 683–700. 40 See a small selection of the recent academic commentary on the ECI in addition to the works cited elsewhere in this chapter: IG Szabó et al, ‘Why Do Some Labour Alliances Succeed in Politicizing Europe across Borders? A Comparison of the Right2Water and Fair Transport European Citizens’ Initiatives’ (2022) 60(3) Journal of Common Market Studies 634–52; J Tosun and S Schaub, ‘Constructing Policy Narratives for Transnational Mobilization: Insights from European Citizens’ Initiatives’ (2021) 7(S2) European Policy Analysis 344–64; D González Cadenas, ‘Facing Democratic Crisis in the EU: The New European Citizens’ Initiative Regulation’ (2020) 9(1) Global Journal of Comparative Law 117–47; J Greenwood, ‘The European Citizens’ Initiative: Bringing the EU Closer to its Citizens?’ (2019) 17(6) Comparative European Politics 940–56; M Inglese, ‘Recent Trends in European Citizens’ Initiatives: The General Court Case Law and the Commission’s Practice’ (2018) 24(2) European Public Law 335–62; N Athanasiadou, ‘The European Citizens’ Initiative in Times of Brexit’ (2018) 3(3) European Papers 1379–99; A Kandyla and S Gherghina, ‘What Triggers the Intention to Use the European Citizens’ Initiative? The Role of Benefits, Values and Efficacy’ (2018) 56(6) Journal of Common Market Studies 1223–39; A Oleart and L Bouza, ‘Democracy at Stake: Multipositional Actors and Politicization in the EU Civil Society Field’ (2018) 56(4) Journal of Common Market Studies 870–87; A Karatzia, ‘Revisiting the Registration of European Citizens’ Initiatives: The Evolution of the Legal Admissibility Test’ (2018) 20 Cambridge Yearbook of European Legal Studies 147–78; J Organ, ‘EU Citizen Participation, Openness, and the European Citizens Initiative: The TTIP Legacy’ (2017) 54(6) CML Rev 1713–47; N Vogiatzis, ‘Between Discretion and Control: Reflections on the Institutional Position of the Commission within the European Citizens’ Initiative Process’ (2017) 23(3–4) European Law Journal 250–71; M Conrad et al (eds), Bridging the Gap: Opportunities and Constraints of the European Citizens’ Initiative (Baden-Baden, Nomos, 2016). 41 G Busschaert, Participatory Democracy, Civil Society and Social Europe: A Legal and Political Perspective (Cambridge, Intersentia, 2016); U Liebert et al (eds), Democratising the EU from Below? Citizenship, Civil Society and the Public (Farnham, Ashgate, 2013); Kohler-Koch and Quittkat (n 8). 42 M Dougan et al (eds), Empowerment and Disempowerment of the European Citizen (Oxford, Hart Publishing, 2012). 43 A Alemanno and J Organ (eds), Democratic Participation in a Citizen’s Europe: What Next for the EU? (London, ECPR Press/New York, Rowman & Littlefield, 2021). See also note 1 above. 44 K Nicolaïdis and R Youngs, ‘Europe’s Democracy Trilemma’ (2014) 90(6) International Affairs 1403–19, 1416. 45 Alemanno (n 1) 38–39.

10  Davor Jančić if so, how the different instruments of citizens’ involvement at the EU level shape them as an emerging collective institution in EU governance, and how this influences the thinking and innovation in the future construction of EU democracy in the absence of a single European demos. This volume aims to fill this gap by posing the overarching research question of the extent to which the institutional position of citizens has evolved in EU democratic governance. This is examined by bringing together the key instruments and channels of EU participatory democracy in search of their common traits, flaws and benefits. Such a focus also affords an insight into whether citizen participation can address the problems of the Union’s ever-developing but never fully materialising public sphere.46 This in turn helps to query the empowerment of citizens by exposing the risks of and obstacles to their firmer institutional entrenchment in the Union’s material constitution. The volume thereby provides a critical assessment of citizens as a standalone institutional actor in European public law and, where relevant, considers the potential remedies to the shortcomings identified. To these ends, the volume focuses on different institutional means through which citizens may engage in the policy formulation, law-making or accountability processes at the EU level. These encompass both the instruments that have been extensively analysed in the literature, where the goal is to update the findings with new normative reflections or empirical data, as well as those on which there is as yet no or no systematic literature. In particular, the volume concentrates on a selection of participatory rights and instruments of citizenship and democracy. These have been selected to provide an illustrative sample of formal and informal participatory initiatives that capture citizenship beyond elections and democracy beyond representation. Those associated with citizenship that are covered in this volume encompass the under-studied citizen petitions to the EP, the increasing engagement of the European Ombudsman, and citizens’ rights concerning access to documents and transparency within the EU legislative process. Those associated with democracy include instruments aimed at participation from two perspectives. The first is participation through consultation and deliberation, such as the increasing organisation of ad hoc democratic conventions, citizen consultations and dialogues (organised across Member States as well as by the European Commission), the CoFoE, public consultations on forthcoming EU legislation and the desirability of an EU Citizens’ Assembly. The second is participation through agenda setting and concentrates on the reform of the ECI, and the role of the European Economic and Social Committee (EESC) in giving citizens a say at the EU level. While all of these mechanisms in one way or another aim to galvanise or facilitate citizen participation in EU affairs, it is important to inspect them more closely because their potential to empower citizens remains unclear due to challenges of

46 M Peters, ‘The Democratic Function of the Public Sphere in Europe’ (2013) 14(5) German Law Journal 673–93.

The Institutionalisation of Citizens in the EU  11 influencing EU decisions.47 Many of these initiatives remain infused with topdown dynamics under the helm of EU institutions, often the Commission. They are ill-suited to the participation of ordinary citizens and are instead the battleground for organised interest and expert communities.48 However, agency capture by organised groups runs counter to the principle of political equality49 and therefore requires further discussion of institutional design. By taking an institutional approach to citizen participation in EU democratic governance, this volume seeks to contribute to our understanding of the role of citizens in shaping EU democracy and citizenship beyond representative means. It investigates the extent to which the institutionalisation of citizens as direct actors in EU governance processes can or cannot address their disengagement with European politics. The evolution of citizen participation thus carries two broad implications for the Union: it illuminates the political dimension of EU citizenship and demonstrates how participatory democracy coexists with representative democracy. The citizenship and democracy aspects are addressed in turn below to illustrate the current state of the art and the relevance of the studies undertaken in this book.

II.  Political Citizenship in Flux: Participation Beyond Elections The theoretical premise of this book is that the ongoing institutionalisation of citizens in EU public law is shaping the evolution of the political dimension of European citizenship. The latter remains under-studied because the existing literature on European citizenship has mainly focused on free movement rights, on their socioeconomic implications and on assessing the centrality of market citizenship, rather than on political citizenship and its participatory components.50 When the Court of Justice of the European Union (CJEU) proclaimed EU citizenship to be destined to be ‘the fundamental status of nationals of the member states’,51 this concerned equal treatment in the area of social welfare for the unemployed mobile citizens and not political participation. For its part, the literature

47 R Youngs, ‘Can Citizen Participation Really Revive European Democracy?’, Carnegie Europe, 30 July 2019, https://carnegieendowment.org/files/7-8-19_Youngs_OGP.pdf; Alemanno (n 1) 36. 48 S Russack, ‘Pathways for Citizens to Engage in EU Policymaking’ in Blockmans and Russack (n 1) 9–41, 37; G Smith, ‘The European Citizens’ Initiative: A New Institution for Empowering Europe’s Citizens?’ in Dougan et al (n 42) 277–89, 286 and 289. 49 A von Bogdandy, ‘The Lisbon Treaty as a Response to Transformation’s Democratic Skepticism’ in M Poiares Maduro and M Wind (eds), The Transformation of Europe: Twenty-Five Years on (Cambridge, Cambridge University Press, 2017) 206–18, 214. 50 One example that incorporates the latter is Dougan et al (n 42). 51 Case C-184/99, Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I-6193, judgment of 20 September 2001, para 31.

12  Davor Jančić on political citizenship has mostly concentrated on the citizens’ electoral rights.52 Most recently, the focus has been on the added value and desirability of transnational electoral lists for the EP, which share the same overarching goal as EU participatory mechanisms: the creation of a ‘pan-European political space’53 that would contribute to the narrowing of the gap between policy and politics, between citizens and elites, and between the governed and the governors. In the context of EU citizenship, it has convincingly been argued that the ‘future of the EU is closely intertwined with the future of citizens as subjects of European integration’.54 This book argues that the role of citizens in the EU is changing as a consequence of the bottom-up evolution of the Union’s political citizenship and argues that this requires a deeper reflection than it has received thus far. It investigates the effectiveness of these changes by querying the extent to which the rhetoric of the inclusion of citizens in EU governance meets the reality. This is important in order to identify the different purposes of citizen participation at the EU level, evaluate the expectations of such participation, and assess participatory democracy’s present and future capacities to democratise the Union. A stronger institutionalisation of citizens has taken the form of a number of formal instruments and rights foreseen in the Treaties and the Charter of Fundamental Rights. When it comes to the Treaties, apart from free movement and residence rights, diplomatic and consular rights abroad, and the rights to vote and stand in European and municipal elections, Union citizenship comprises three further, non-electoral political rights: the right to petition the EP; the right to address complaints of maladministration to the European Ombudsman; and the right of correspondence with EU institutions and bodies in any of the Treaty languages.55 In parallel, the Charter gives any EU citizen not only the right to good administration,56 but also a right of access to documents of the institutions, bodies, offices and agencies of the Union.57 Being of particular relevance for participatory democracy, EP petitions, Ombudsman complaints and access to EU documents are outlined in turn below.

52 F Fabbrini, ‘The Political Side of EU Citizenship in the Context of EU Federalism’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge, Cambridge University Press, 2017) 271–93; O Eberl and S Seubert, ‘European Political Citizenship 2030: Post-democracy with Populist Activism or an Integrated Political and Social Citizenship?’, bEUcitizen Policy Brief, December 2016, https://www. uu.nl/sites/default/files/european-political-citizenship-2030-postdemocracy-with-populist-activismor-an-integrated-political-and-social-citizenship.pdf. 53 M Bartl, ‘Hayek Upside-Down: On the Democratic Effects of Transnational Lists’ (2020) 21(1) German Law Journal 57–62, 60. See also: O Costa, ‘Can the Conference on the Future of Europe Unlock the EU Elections Reform? Reflections on Transnational Lists and the Lead-Candidate System’ (2020) 26(5–6) European Law Journal 460–471. 54 PJ Neuvonen, ‘Retrieving the “Subject” of European Integration’ (2019) 25(1) European Law Journal 6–20, 9. 55 Article 20(2) TFEU and Articles 39–46 of the Charter of Fundamental Rights. 56 Article 41 of the Charter of Fundamental Rights. 57 Article 42 of the Charter of Fundamental Rights. For an extensive analysis of this, see L Rossi and P Vinagre e Silva, Public Access to Documents in the EU (Oxford, Hart Publishing, 2017).

The Institutionalisation of Citizens in the EU  13 Long-standing but not very politically salient is the instrument of citizen petitions to the EP. Enshrined in both the Treaties and the Charter of Fundamental Rights,58 the petition right has a very wide scope and enables citizens, acting both individually and collectively, to address to the EP any matter which comes within the Union’s fields of activity. The threshold for petitions’ admissibility is low, given that the Treaty requirement for the petitioner to demonstrate that they have been directly affected has not been strictly interpreted by the EP’s Petitions Committee (PETI). In fact, petitions have been submitted to the EP on an informal basis ever since the establishment of the European Coal and Steel Community, albeit to a far lesser extent than nowadays. Statistically, EP petitions seem to have gained in prominence. PETI received more petitions concerning Brexit – a total of 21059 – than in the entire period from 1958 to 1979, during which it received only 128 petitions.60 In recent years, the EP has received over 1,000 petitions a year (1,220 in 2018, 1,271 in 2017, 1,569 in 2016 and 1,431 in 2015), although the numbers were previously higher (2,714 in 2014).61 The EP acts on petitions by engaging with the EU institution concerned, initiating resolutions, conducting fact-finding missions in the Member States, and entering into direct dialogues with citizens. Besides raising awareness of the citizens’ concerns in plenary debates, one of PETI’s key focus areas is the transposition and application of EU law in the Member States. The EP accordingly views petitions as ‘useful tools’ that provide ‘valuable input’ in detecting alleged breaches of EU law and their impact on citizens.62 However, coexisting with complaints to the European Ombudsman and the ECI, EP petitions have not been able to make a significant contribution to citizen participation in EU affairs.63 The reasons for this are primarily the unclear division of competences with the aforementioned two channels as well as the lack of resources and visibility. The EP itself recognises that ‘the vast majority of EU citizens and residents are unfortunately not yet aware of the right to petition’.64 However, petitions are not entirely toothless.65 In some cases, they have stimulated

58 Article 227 TFEU and Article 44 of the Charter of Fundamental Rights. 59 EP, PETI, Opinion on the Council Decision on the Conclusion of the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2018/0427(NLE)), 21 January 2020, 2. 60 EP, DG for the Presidency – Archive and Documentation Centre, ‘The Citizen’s Appeal to the European Parliament: Petitions 1958–1979’, Cardoc series no 4, June 2009, 15. 61 Data drawn from various EP documents (resolutions, reports and studies). 62 EP, Resolution of 13 February 2019 on the Outcome of the Committee on Petitions’ Deliberations during 2018 (2018/2280(INI), recitals L and M and point 2. 63 N Vogiatzis, ‘The Past and Future of the Right to Petition the European Parliament’ (2021) 40 Yearbook of European Law 82–110. 64 EP, Resolution of 15 December 2016 on the Activities of the Committee on Petitions 2015 (2016/2146(INI)), recital C. 65 H de Waele, ‘Union Citizens and the European Parliament: Perception, Accessibility, Visibility and Appreciation’ in P Minderhoud et al (eds), Caught in between Borders: Citizens, Migrants and Humans: Liber Amicorum in Honour of Prof Dr Elspeth Guild (Nijmegen, Wolf Legal Publishers, 2019) 175–82, 178.

14  Davor Jančić discussions on EU legislation. In others, through liaison with national governments, national parliaments, the Commission and other EP committees, PETI has been able to exert pressure and effect tangible outcomes for petitioners, such as the payment of sums unduly denied in administrative procedures, the initiation of domestic legislation and the establishment of committees of inquiry.66 Far newer, more visible and politically consequential is the work of the European Ombudsman. Since its establishment in 1995,67 the Ombudsman office has made a relevant contribution to the democratisation of the Union,68 both by helping to maintain a culture of good administration and the rule of law, and by increasing the accountability and transparency of EU institutions, bodies and agencies.69 In doing so, the Ombudsman has been able to ‘softly influence’ the Union’s legislative and judicial branches ‘to the benefit of citizens’,70 not least owing to high rates of compliance with its non-binding proposals. For example, the Ombudsman’s annual Putting it Right report for 2019, the latest one available at the time of the writing of this chapter, shows that overall EU institutions have accepted 79% of its solutions, recommendations and suggestions.71 Yet, although this represents a 2% increase compared to 2018, the rate is lower than in other preceding years (81% in 2017, 85% in 2016, 83% in 2015 and 90% in 2014). However, there are clear limitations to the Ombudsman’s impact, which ultimately hinges on the receptiveness of the addressee. For instance, the Ombudsman’s strategic inquiry into the transparency of the legislative discussions in the preparatory bodies of the Council and the restricted access to legislative documents was found to constitute maladministration.72 Yet, although the special report based on this inquiry was subsequently overwhelmingly supported by the EP, the Council itself had failed to provide any response within the prescribed time limit. This raises the question of the nature and level of influence that the Ombudsman can exercise on behalf of the citizens. Furthermore, citizens’ ability to access documents and the opaqueness of interinstitutional bargaining during EU legislative processes also challenge their

66 EP Study ‘Achievements of the Committee on Petitions during the 2014–2019 Parliamentary Term and Challenges for the Future’ (authored by J Heezen and O Marzocchi), Doc No PE 621.917, July 2019, 49–50. 67 Article 228 TFEU. 68 N Vogiatzis, The European Ombudsman and Good Administration in the European Union (Basingstoke, Palgrave Macmillan, 2018) ch 3. 69 HCH Hofmann and J Ziller (eds), Accountability in the EU: The Role of the European Ombudsman (Cheltenham, Edward Elgar, 2017); H Michel, ‘Le Médiateur Européen Héraut de la Transparence: Redéfinition d’une Institution et Investissements Politiques d’une Norme de “Bon” Gouvernement’ (2018) 61(3) Politique Européenne 114–41. 70 M Inglese and T Binder, ‘The European Ombudsman’ in D Levi-Faur and F van Waarden (eds), Democratic Empowerment in the European Union (Cheltenham, Edward Elgar, 2018) 85–107, 101. 71 European Ombudsman, ‘Putting it Right? How the EU Institutions Responded to the Ombudsman in 2019’, 7 December 2020, https://www.ombudsman.europa.eu/en/doc/follow-up/en/135909. 72 European Ombudsman, Special Report in Strategic Inquiry OI/2/2017/TE on the Transparency of the Council Legislative Process, 16 May 2018.

The Institutionalisation of Citizens in the EU  15 effective participation in governance and decision-making. With EU institutions having the tendency to limit transparency and maintain control over legislative files by devising informal working arrangements, it has rightly been argued that policy choices inherent in legislative decision-making are too important to leave to the institutions’ discretion and should prompt their greater commitment to transparency and openness.73 The literature has paid significant attention to the roles of the Commission, the EP and the Council in transparency matters.74 However, as trilogues have become the norm in EU law-making,75 the question of the degree to which citizens should be granted access to legislative negotiations without impinging on the institutional prerogatives of the EU legislature requires further debate. With respect to these three political citizenship rights that go beyond elections, more research is needed to find out the actual and potential contribution that they can make to citizen participation in EU governance. This volume aims to address this gap.

III.  The EU’s Democracy Disconnects: Participation Beyond Representation That citizenship is intimately intertwined with democracy is evident from postLisbon EU Treaty provisions on democratic principles, which invoke citizenship of the Union before moving on to the Union’s democratic foundations as such.76 While the EU’s functioning is founded on representative democracy,77 participatory democracy is recognised as an important avenue for citizens to express their views on EU policies.78 The citizens’ core rights in this respect are to participate in the democratic life of the Union and for EU decisions to be taken as openly and as closely as possible to them.79

73 D Curtin and P Leino, ‘In Search of Transparency for EU Law-Making: Trilogues on the Cusp of Dawn’ (2017) 54(6) CML Rev 1673–712. 74 D Wyatt, ‘Is the Commission a “Lawmaker”? On the Right of Initiative, Institutional Transparency and Public Participation in Decision-Making: ClientEarth’ (2019) 56(3) CML Rev 825–41; GJ Brandsma, ‘Transparency of EU Informal Trilogues through Public Feedback in the European Parliament: Promise Unfulfilled’ (2019) 26(10) Journal of European Public Policy 1464–83; C Roederer-Rynning and J Greenwood, ‘The European Parliament as a Developing Legislature: Coming of Age in Trilogues?’ (2017) 24(5) Journal of European Public Policy 735–54; M Hillebrandt, ‘Living Transparency: The Development of Access to Documents in the Council of the EU and its Democratic Implications’ (PhD dissertation, University of Amsterdam, 2017). 75 C Roederer-Rynning and J Greenwood, ‘The Culture of Trilogues’ (2015) 22(8) Journal of European Public Policy 1148–65. 76 Article 9 TEU. 77 ibid Article 10(1). 78 On the historical development of EU participatory mechanisms, see J Mendes, Participation in EU Rule-Making: A Rights-Based Approach (Oxford, Oxford University Press, 2011) ch 3. 79 Article 10(3) TEU.

16  Davor Jančić Participatory democracy has in recent years thrived in a plethora of new channels.80 These include formal instruments such as the ECI and the more informal ones such as a variety of citizen consultations, assemblies and dialogues, which are aimed at agenda-setting and informing legislative processes. An in-depth analysis of the Commission’s documents shows that EU participatory democracy was originally conceived as a better law-making tool of the Commission, whose objective was to attract external expertise through civil society links,81 but that it has since begun to be portrayed as a mechanism to enhance the Union’s input legitimacy through citizen involvement.82 There has therefore been a shift in the narrative and characterisation of the citizens’ position in EU democratic governance. Yet, any constitutional elevation of citizens in EU democracy may encounter problems relating to the transnational nature of their mobilisation. The central conundrum here is whether citizens’ action at the EU level can be meaningful in the absence of a single European demos, or at least in the absence of a clearly defined and widely shared European identity, which would nurture solidarity and consolidate trust in the political authority flowing from the decisions in whose making citizens are invited to participate. Indeed, democracy and political citizenship can only be fostered in a polity where citizens are capable of influencing political decisions.83 In this context, empowering citizens in EU democratic governance can be justified by the concept of a pluralist, two-tier EU peoplehood, which posits that the bonds of collectivity between EU citizens are both national and transnational, and that these bonds do not necessarily imply the creation of direct relationships between individual citizens.84 The composite nature of EU democracy is similarly captured by the notion of the Union as a demoicratic polity, which operates as a union of peoples – understood both as citizens and as states – which govern together but not as one. The important component of this approach is the democratic interdependence and complementarity between the Union’s and the Member States’ resources of democracy. This is manifested by the claim that the EU’s pouvoir constituant can be plural as opposed to stemming from a single unitary demos, and that its legitimacy can be generated through ‘multiple but connected national politics’.85 When it comes to direct links between citizens and the Union, demoicrats welcome the attempts to entrench participatory

80 C Marxsen, ‘Participatory Democracy in Europe: Article 11 TEU and the Legitimacy of the European Union’ in F Fabbrini et al (eds), What Form of Government for the European Union and the Eurozone? (Oxford, Hart Publishing, 2015) 151–69. 81 See Kohler-Koch and Quittkat (n 8). 82 L Bouza García, ‘How Could the New Article 11 TEU Contribute to Reduce the EU’s Democratic Malaise?’ in Dougan et al (n 42) 253–76, 257. 83 Colliot-Thélène (n 31) 141. 84 JP Beetz, ‘A Two‐Tier Conception of European Union Peoplehood: A Realist Study of European Citizens’ Bonds of Collectivity’ (2017) 23(6) European Law Journal 467–81, 471 and 477. 85 K Nicolaïdis, ‘European Demoicracy and its Crisis’ (2013) 51(2) Journal of Common Market Studies 351–69, 352.

The Institutionalisation of Citizens in the EU  17 democracy and they place emphasis on methods that promote and harness pluralities across the Member States rather than on those that seek to aggregate them.86 Being mutually interdependent with national democracy, EU democracy can only be sustainable if, among other things, it is ‘solidly grounded on participatory networks’87 and if it is conceived as a long-term commitment to citizen-centred subsidiarity defined from the bottom up rather than from the top down, as is the case at present.88 Relatedly, empirical research has demonstrated that citizens’ satisfaction with EU democracy relies not only on output legitimacy and the Union’s policy accomplishments, but also on input legitimacy and public participation. Significantly, ‘citizens do care about the Union’s democratic procedures and institutions’, whereby input and output elements can coexist ‘despite a “thin” collective identity’.89 Other empirical analyses similarly teach us that European identity is not a conditio sine qua non of citizens’ trust in the EU, because emotional attachment to the EU is not as such required for the Union’s legitimacy. Instead, citizens value the way in which they are governed more than they value the actual personalities who govern them.90 While these analyses focus mainly on electoral participation and the manner in which citizens shape their attitudes towards EU institutions, their important assertions are taken further in this volume by placing the citizen at the centre of EU decision-making. This is done by interrogating the conditions under which citizens can be understood as independent public law actors and under which their participation in different EU governance processes could contribute to EU democracy. This volume therefore critically assesses the obstacles and limitations to the institutionalisation of citizens in EU democracy which derive from the organisation and implementation of citizen-oriented transnational action. This is an important inquiry because, although they may appear prima facie ineffective, both formal and informal initiatives that seek to empower citizens may create political pressures for EU institutions to act or justify inaction. These may in turn engender requests for legal formalisation. For example, the citizens of four smaller Member States – Finland, Lithuania, Luxembourg and Slovenia – have ‘unambiguously called’ for citizen consultations to become a permanent feature of EU democracy.91

86 ibid 364. 87 K Nicolaïdis, ‘Sustainable Integration in a Demoicratic Polity: A New (or Not So New) Ambition for the EU after Brexit’ in B Martill and U Staiger (eds), Brexit and beyond: Rethinking the Futures of Europe (London, UCL Press, 2018) 212–21, 215. 88 ibid 217. 89 Hobolt (n 20) 101. 90 E Harteveld et al, ‘In Europe We Trust? Exploring Three Logics of Trust in the European Union’ (2013) 14(4) European Union Politics 542–65, 561. 91 S Boucher et al, ‘Six Ideas for Rejuvenating European Democracy’, Carnegie Europe, November 2019, https://carnegieendowment.org/files/WP-Youngs_et_al_Euro_Democracy.pdf.

18  Davor Jančić In discussing citizen involvement in EU governance beyond representative democracy, this volume reflects on the presence of multiple disconnects between EU democracy and citizens. The most pronounced democracy disconnects, which are discernible regarding both formal and informal avenues of citizen participation, derive from gaps between the rising number of instruments of citizen involvement in EU affairs and their ability to inform EU decision-making. Although any strict classification is precluded by overlaps in the nature, characteristics and purposes of the different participatory instruments, these disconnects are introduced below through two closely related categories of such instruments. The first category concerns participation in matters of EU integration (section III.A), where citizens’ advice is sought on the Union’s future evolution or on ways to overcome political or policy impasses. The second category is directed towards enhancing participation in EU legislative processes (section III.B), with citizens being consulted on policy plans and legislative drafts, or where they may collectively seek the initiation of EU legislation. These different modes of citizen participation in EU governance further raise the question of the broader relationship between participatory and representative democracy (section III.C). As shown below, EU instruments of citizen participation exhibit multiple disconnects from the citizens, which reduces their contribution to the democratisation of EU governance. Whether addressing the wider integration process, policy-making or legislation, whether organised face to face or online, and whether envisaged as regular or one-off occurrences, EU instruments of citizen participation paint a mixed picture. While most have not been capable of constraining or directing EU action and have not resulted in tangible policy outcomes, some demonstrate promising traits and a potential for future development.

A.  Participation and EU Integration The latter claim on the variable effectiveness of citizen participation convincingly applies to the latest, large-scale EU-wide participatory undertaking – the CoFoE – which ran from April 2021 to May 2022. Viewed as ‘an innovative model to reform the EU’,92 and lauded for its experimental nature and legitimising potential,93 the Conference has also been criticised for lack of clarity about its constitutional mandate94 and possible follow-up,95 and for lacking legal basis and institutional 92 F Fabbrini, ‘The Conference on the Future of Europe: A New Model to Reform the EU?’ (2019) DCU Brexit Institute Working Paper No 12, 17. 93 A Alemanno, ‘Unboxing the Conference on the Future of Europe and its Democratic Raison d’Être’ (2020) 26(5–6) European Law Journal 484–508; L Eymard, ‘From the French Citizens’ Convention on Climate to the Conference on the Future of Europe: A Participatory Science and Democracy Perspective’ (2020) 26(1–2) European Law Journal 136–40. 94 F Fabbrini, ‘The Conference on the Future of Europe: Process and Prospects’ (2020) 26(5–6) European Law Journal 401–14, 402. 95 S Puntscher Riekmann, ‘The European Representation Conundrum: Can the Conference on the Future of Europe Resolve it?’ in G von Sydow and V Kreilinger (eds), Making EU Representative Democracy Fit for the Future (Stockholm, Swedish Institute for European Policy Studies, 2022) 33–44, 42.

The Institutionalisation of Citizens in the EU  19 clout to address the democratic deficit, thus rendering it as no more than a ‘campaign to stimulate public interest for EU politics’.96 While acknowledging all its deficiencies, one could agree that the CoFoE gave citizens ‘a far more meaningful role than might have been expected’97 from the initial interinstitutional squabbles and Member States’ desire to control the process. Similarly, President Macron’s democratic conventions, which from April to November 2018 sought to rekindle the political elite’s relationship with the citizenry, have been argued to ‘successfully offer a bottom-up approach to democratic engagement’ and that they ‘do have a certain transformational potential’ by improving citizens’ proximity to the process of defining the priorities of European integration.98 Yet, the conventions also exhibited shortcomings regarding the conventions’ impact, methodology, representativeness and executive dominance,99 and have been denounced as being ‘cosmetic’, ‘patronizing’ and a ‘recipe for failure’.100 Town hall-style citizens’ dialogues organised by the Commission are equally envisaged as a tool for creating what is often branded as a Europe that listens. As an illustration, the Juncker Commission organised 1,572 such dialogues in 583 locations with some 194,000 participants.101 However, while citizens’ input might be helpful in informing the Commission’s agenda-setting plans, there is no hard-and-fast commitment to implementing any recommendations and ideas proposed by citizens, and this may not only erode the value of such dialogues, but may add to the feelings of disengagement despite the proliferation of the avenues of citizen participation.102 Added to this is the impact of the COVID-19 pandemic, which has caused most dialogues to move online. Some of the aforementioned limitations are also detectable in novel participatory formats with the more pronounced deliberative characteristics. For example,

96 E Venizelos, ‘The Conference on the Future of Europe as an Institutional Illusion’, Verfassungsblog, 16 December 2021, https://verfassungsblog.de/the-conference-on-the-future-of-europe-as-an-institutionalillusion. 97 R Youngs, ‘EU Democracy after the Conference on the Future of Europe’, Carnegie Europe, 12 May 2022, https://carnegieeurope.eu/2022/05/12/eu-democracy-after-conference-on-future-of-europepub-87110. 98 D Gutiérrez-Peris et al, ‘Europe’s Conventions Démocratiques’ in Blockmans and Russack (n 1) 45–64, 45 and 62. 99 P Butcher and S Pronckutė, ‘European Citizens’ Consultations: Consultation Begins at Home’ (2019) 18(1) European View 80–88. 100 Alemanno (n 1) 36. See further A Alemanno, ‘Beyond Consultations: Reimagining EU Participatory Politics’, Carnegie Europe, 5 December 2018, https://carnegieeurope.eu/2018/12/05/ beyond-consultations-reimagining-eu- particpatory-politics-pub-77873. 101 European Commission, ‘Citizens’ Dialogues and Citizens’ Consultations: Key Conclusions’, 30 April 2019, 4–5. See more on this in ch 8 by Davor Jančić in this volume. 102 Stratulat et al (n 23) 9. See helpful earlier reflections in R Kies and P Nanz (eds), Is Europe Listening to Us? Successes and Failures of EU Citizen Consultations (Farnham, Ashgate, 2013); M Karlsson, ‘A Panacea for Pan-European Citizen Participation? Analysis of the 2009 European Citizens Consultations’ in E Amnå (ed), New Forms of Citizen Participation: Normative Implications (Baden-Baden, Nomos, 2010) 97–114; S Boucher, ‘If Citizens Have a Voice, Who’s Listening? Lessons from Recent Citizen Consultation Experiments for the European Union’ (2009) EPIN Working Paper No 24.

20  Davor Jančić the nature of Europolis – a three-day gathering in Brussels in May 2009 of some 400 EU citizens from all Member States to discuss migration and climate change in four small groups – was that of a ‘gentlemanly conversation’ with very little contestation of the issues discussed.103 However, there have also been optimistic assessments of the deliberative democratic innovations around Europe. In the UK, the Citizens’ Assembly on Brexit, a two-weekend meeting in Manchester of 50 citizens randomly selected to discuss the post-Brexit UK–EU arrangements on trade and migration carried out in 2017, was evaluated as providing valuable insights into public opinion.104 According to the organisers, such deliberative exercises could have a ‘major role’ in strengthening democratic policy-making processes, especially in situations where the political will to act already exists, but where all the available policy options are bound to result in heavy public criticism.105 The Irish experience is also telling. The first citizen assembly, set up by the organisation called We the Citizens, brought together 100 citizens for deliberations on taxation and spending, education reform, the role of Irish parliamentarians and general political reform. Albeit mostly an academic enterprise, this experiment yielded ‘clear evidence’ that the citizens’ assembly positively affected the participants’ interest in politics and their willingness to engage more actively.106 The Irish constitutional conventions and citizen assemblies on matters as sensitive and divisive as abortion, same-sex marriage and climate change have also been hailed as a ‘significant success’, despite numerous organisational shortcomings.107 The success was rooted in the acceptance of some of the citizens’ recommendations in the ensuing referendums on the former two issues, while those on the latter issue were taken up by the Irish Parliament and government. Citizen participation was a ‘legitimate way of breaking the deadlock’ on highly contentious issues or served as a means of responding to external or public pressures to act where representative politics was unable to provide a way forward.108 Deliberative mini-publics, particularly citizen assemblies and citizen juries, might indeed have an impact where they are linked to instruments that produce binding effects, such as referendums,109 or where they enjoy the support of the legislature.110 Numerous other examples from Europe 103 A Bächtiger and M Gerber, ‘“Gentlemanly Conversation” or Vigorous Contestation? An Exploratory Analysis of Communication Modes in a Transnational Deliberative Poll® (Europolis)’ in K Grönlund et al (eds), Deliberative Mini-publics: Involving Citizens in the Democratic Process (Colchester, ECPR Press, 2014) 115–34, 129. 104 A Renwick, ‘Citizens’ Assemblies: A Better Way of Doing Democracy?’ (2017) 8(3) Political Insight 24–27. 105 A Renwick et al, ‘What Kind of Brexit Do Voters Want? Lessons from the Citizens’ Assembly on Brexit’ (2018) 89(4) Political Quarterly 649–58, 650 and 657. 106 DM Farrell et al, ‘Deliberative Democracy in Action Irish-Style: The 2011 We the Citizens Pilot Citizens’ Assembly’ (2013) 28(1) Irish Political Studies 99–113, 106. 107 G de Búrca, ‘An EU Citizens’ Assembly on Refugee Law and Policy’ (2020) 21(1) German Law Journal 23–28, 24. 108 ibid 26. 109 G Smith, Democratic Innovations: Designing Institutions for Citizen Participation (Cambridge, Cambridge University Press, 2009) 197. 110 O Doyle and R Walsh, ‘Deliberation in Constitutional Amendment: Reappraising Ireland’s Deliberative Mini-publics’ (2020) 16(3) European Constitutional Law Review 440–65, 461.

The Institutionalisation of Citizens in the EU  21 might provide lessons that could be applied to democratic reform in the EU.111 These include the establishment of a permanent Citizens’ Council in Belgium’s German-speaking community Ostbelgien,112 the permanent deliberative body of citizens called El Observatorio de la Ciudad set up by the Madrid City Council to debate local issues,113 Gdańsk’s citizen assemblies, the Dutch Citizens’ Forum on Electoral Reform (Burgerforum Kiesstelsel),114 or citizen councils (Bürgerräte), which can be organised in the Austrian state of Vorarlberg at the request of 1,000 citizens.115 Yet, the policy impacts of citizens’ assemblies are often minor. This is illustrated by the large-scale citizens’ assemblies on electoral reform which were organised in Canada by the provincial governments of British Columbia in April 2003 and Ontario in March 2006.116 The subsequently organised referendums ended up rejecting the assemblies’ proposals, with the former missing the threshold by a mere 2% of the vote. While the citizens’ assemblies were compelling exercises in focused public debate, which increased the participants’ understanding of the policy issues discussed, their key drawback was poor visibility and an inability to penetrate the public sphere. In both provinces, there was a ‘troubling disconnection’ with the wider public,117 most of whom were unaware of the assemblies’ existence.118 Many of these challenges are shared by the citizen-oriented initiatives in the EU and its Member States, and demand academic inquiry into the desirability of an EU-wide Citizens’ Assembly.

B.  Participation and EU Legislation If citizen consultations on the broader priorities for European integration suffer from democratic disconnects, so do those that concern the early stages of the EU’s

111 C Chwalisz, ‘A New Wave of Deliberative Democracy’, Carnegie Europe, 26 November 2019, https://carnegieendowment.org/files/10-17-19_Chwalisz_Deliberative.pdf. 112 D van Reybrouck, ‘Belgium’s Democratic Experiment’, Politico, 25 April 2019, https://www.politico.eu/ article/belgium-democratic-experiment-citizens-assembly. 113 See other initiatives in Madrid in B Gutiérrez, ‘Madrid as a Democracy Lab’, openDemocracy, 10 July 2017, www.opendemocracy.net/en/democraciaabierta/madrid-as-democracy-lab. 114 M de Jongh, ‘Group Dynamics in the Citizens’ Assembly on Electoral Reform’ (PhD dissertation, Utrecht University, 2013); E ten Heuvelhof and M van Twist, ‘Hoe de Wisdom of Crowds Kan Doorwerken in Den Haag, het Burgerforum Kiesstelsel als “Critical Case”’ (2007) 5(5) Bestuurswetenschappen 10–25. 115 P Bußjäger, ‘Direct Democracy and Citizen Participation in the Austrian Federal State’ in C Fraenkel-Haeberle et al (eds), Citizen Participation in Multi-level Democracies (Leiden, Brill, 2015) 216–30, 227. 116 P Fournier et al, When Citizens Decide: Lessons from Citizen Assemblies on Electoral Reform (Oxford, Oxford University Press, 2011). 117 I Ward, ‘An Experiment in Political Communication: The British Columbia Citizens’ Assembly on Electoral Reform’ (2008) 43(2) Australian Journal of Political Science 301–15, 313. 118 L LeDuc, ‘Electoral Reform and Direct Democracy in Canada: When Citizens Become Involved’ (2011) 34(3) West European Politics 551–67, 562 and 564.

22  Davor Jančić legislative process. This in the first place concerns the Commission’s Treaty obligation to ‘consult widely’ before proposing legislative acts.119 Indeed, public consultations which the Commission conducts with stakeholders and individual citizens are a further means of involving the public in EU policy-making.120 These include citizens’ feedback on roadmaps and inception impact assessments, in which the Commission presents new ideas for EU policies and legislation, as well as public consultations on the Commission’s legislative proposals before and after they are submitted to the EP and the Council. These channels can also be utilised to evaluate the continued added value and fitness for purpose of existing EU legislation within the framework of the Commission’s Better Regulation Agenda.121 However, empirical analyses have yielded mixed results, seriously doubting the consultations’ inclusiveness,122 while arguing that they serve to enable wellresourced organised interest to assert their policy preferences rather than to give a voice to ordinary citizens.123 The latter submit very few contributions and where they do, this remains a ‘private act’ with little interaction, let alone deliberation, with either other citizens or the Commission, which largely ignores them.124 Since it is the Commission that decides what undergoes a consultation, consultations cannot be deemed a medium for citizens’ agenda setting either. Furthermore, owing to the consultations’ openness and very wide scope, citizens’ contribution to EU policy formulation and evaluation coexists with that of national, sub-national and local actors as well as non-EU states and organisations.125 One thorough analysis found that online consultations therefore have a negligible potential in enhancing the input legitimacy of EU policy-making, which is not of primary concern either to the Commission or to citizens themselves.126 Despite the ‘definitely political’ character of the consultations,127 this instrument of citizen participation remains 119 See specifically Article 2 of the Protocol on the Application of the Principles of Subsidiarity and Proportionality and more broadly Article 11(3) TEU. 120 B van Ballaert, ‘The European Commission’s Use of Consultation during Policy Formulation: The Effects of Policy Characteristics’ (2017) 18(3) European Union Politics 406–23. 121 See G Listorti et al, ‘Towards an Evidence-Based and Integrated Policy Cycle in the EU: A Review of the Debate on the Better Regulation Agenda’ (2020) 58(6) Journal of Common Market Studies 1558–77. 122 A Alemanno, ‘Levelling the EU Participatory Playing Field: A Legal and Policy Analysis of the Commission’s Public Consultations in Light of the Principle of Political Equality’ (2020) 26(1–2) European Law Journal 114–35. 123 C Quittkat, ‘The European Commission’s Online Consultations: A Success Story?’ (2011) 49(3) Journal of Common Market Studies 653–74. 124 T Hüller, ‘Playground or Democratisation? New Participatory Procedures at the European Commission’ (2010) 16(1) Swiss Political Science Review 77–107, 100. 125 C Quittkat and P Kotzian, ‘Lobbying via Consultation: Territorial and Functional Interests in the Commission’s Consultation Regime’ (2011) 33(4) Journal of European Integration 401–18; A Rasmussen and P Alexandrova, ‘Foreign Interests Lobbying Brussels: Participation of Non-EU Members in Commission Consultations’ (2012) 50(4) Journal of Common Market Studies 614–31. 126 J Weller, ‘Democratic Legitimacy? The Online Consultations of the European Commission’ (PhD dissertation, University of Portsmouth, 2012). 127 B Kohler-Koch, ‘Participation by Invitation: Citizen Engagement in the EU’ in T Poguntke et al (eds), Citizenship and Democracy in an Era of Crisis (London, Routledge, 2015) 206–23, 215.

The Institutionalisation of Citizens in the EU  23 non-binding, initiated top-down by the Commission, and principally focused on gathering external expertise with the largely technocratic aim of enhancing output legitimacy through greater policy effectiveness.128 Besides, despite their transparency and openness, online consultations suffer from a severe lack of publicity.129 The participatory promise of online consultations therefore does not seem to have been achieved.130 Yet, one should not expect individual citizens to be the primary protagonists of online consultations either. The necessity for the aggregation of interests and policy positions in the consultation process arises due to issue complexity, the lack of subject-area knowledge on the part of lay citizens, and the burdens of processing vast volumes of isolated contributions on the part of the Commission – all of which could render consultations ‘meaningless for the political process’.131 Thus, since the Commission is the EU institution that is the most responsive to stakeholder demands within the Union’s legislative apparatus,132 Commission-led consultations require more thorough inspection to discuss their limitations and appraise their future utility for stimulating wider societal mobilisation and generating a degree of input legitimacy through citizen participation. Nonetheless, the formalisation of participatory procedures neither automatically translates into wide outreach to citizens, nor does it equate to policy impact and a greater sense of belonging and solidarity among citizens. When it comes to outreach and inclusion, even the formal EU-wide instrument of the ECI is led by civil society organisations from a handful of Member States. The first initiative, ‘Right2Water’, aiming to establish a human right to water and sanitation, was almost entirely a German initiative (over 1.2 million signatures). The remaining initiatives also had their lead countries. While ‘One of Us’, which focused on protecting the human embryo, was mostly Italian (over 620,000 signatures) and Polish (over 235,000 signatures), ‘Stop Vivisection’, which sought the abandonment of the use of animals in scientific experiments, was mostly Italian (over 690,000 signatures), Ban Glyphosate was mostly German (over 660,000 signatures), and the Minority Safepack, which called for a stronger protection of national and linguistic minorities and of cultural and linguistic diversity across the EU was largely Hungarian (over half a million signatures) and Romanian (over a quarter of a million signatures). The latest successful initiative, ‘End the Cage Age’, aiming to end the inhumane treatment of farm animals, was again led by Germany (close to half a million signatures) and was significantly supported by the Netherlands (over 150,000 signatures).

128 J Labitzke, ‘Consultation Processes as a Practice of Legitimacy in the EU Legislative Process’ (2012) 20(3) Journal of Contemporary European Studies 323–36, 331. 129 Hüller (n 124) 99. 130 A Fischer-Hotzel, ‘Democratic Participation? The Involvement of Citizens in Policy-Making at the European Commission’ (2010) 6(3) Journal of Contemporary European Research 335–52. 131 Marxsen (n 22) 276. 132 A Judge and R Thomson, ‘The Responsiveness of Legislative Actors to Stakeholders’ Demands in the European Union’ (2019) 26(5) Journal of European Public Policy 676–95, 690.

24  Davor Jančić Regarding policy impact, the ‘Right2Water’ initiative helped to s­timulate legislative action and resulted, some eight years after its registration, in the adoption in 2020 of a recast Directive on the quality of water intended for human consumption.133 Although this may not have fully satisfied the initiative’s organisers, it could be seen as a positive outcome of public involvement in EU law-making. Conversely, the Commission’s response to the Ban Glyphosate initiative paints a different picture. A monograph by the International Agency for Research on Cancer, which is the specialised cancer agency of the World Health Organization that only relies on published research, concluded that glyphosate is ‘probably carcinogenic to humans’.134 Two EP resolutions also concluded that the Commission’s draft implementing legislation, which sought to renew the use of glyphosate for another five years, ‘fails to ensure a high level of protection of both human and animal health and the environment, fails to apply the precautionary principle, and exceeds the implementing powers’.135 Regardless of this and the Commission’s own admission that ‘it is possible that foodwebs [food chain connections in an ecosystem] could be influenced’,136 it concluded that there were ‘currently no grounds to call into question the scientific assessments and conclusions on glyphosate carried out in the EU’137 and that there were ‘neither scientific nor legal grounds to justify a ban of glyphosate’.138 The Commission’s narrow evidence base,139 its disregard for the EP’s repeated assessments and its neglect for the wider social unacceptability of the risks posed by this herbicidal active substance have rightly been criticised as a missed opportunity to strengthen the democratic legitimacy of the EU’s risk regulation processes.140 In turn, this may increase the citizens’ perception of disempowerment and disenfranchisement.141 The revised ECI Regulation, which was enacted on 17 April 2019 and which has applied since 1 January 2020,142 introduces a number of improvements concerning the accessibility and user-friendliness 133 Directive (EU) 2020/2184 of the European Parliament and of the Council of 16 December 2020 on the quality of water intended for human consumption (recast), [2020] OJ L435/1. 134 European Commission, Communication on the European Citizens’ Initiative ‘Ban glyphosate and protect people and the environment from toxic pesticides’ (2017) OJ C8414, 12 December 2017, 7. 135 EP, Resolution of 13 April 2016 on the draft Commission implementing regulation renewing the approval of the active substance glyphosate in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Implementing Regulation (EU) No 540/2011, Doc No D044281/01 – 2016/2624(RSP), point 1; Resolution of 24 October 2017 (same title), Doc No D053565-01 – 2017/2904(RSP), point 1. 136 European Commission (n 134) 8. 137 ibid 9. 138 ibid 14. 139 See a long list of countries and other entities where glyphosate has either been banned or restricted at: ‘Where is Glyphosate Banned?’, Baum Hedlund Aristei & Goldman, November 2019, www.baumhedlundlaw.com/toxic-tort-law/monsanto-roundup-lawsuit/where-is-glyphosate-banned. 140 GC Leonelli, ‘The Glyphosate Saga and the Fading Democratic Legitimacy of European Union Risk Regulation’ (2018) 25(5) Maastricht Journal of European and Comparative Law 582–606. 141 ibid 587. 142 Regulation (EU) 2019/788 of the European Parliament and of the Council of 17 April 2019 on the European Citizens’ Initiative [2019] OJ L130/55.

The Institutionalisation of Citizens in the EU  25 through greater assistance and interaction with the organisers of an initiative.143 Despite this, although the creation of a transnational European public sphere has arguably become even more pressing than economic integration itself,144 the ECI’s ability to address this challenge remains moot.145 President von der Leyen’s undertaking to submit legislative proposals to the EP when asked to do so by a resolution adopted by a majority of Members of the European Parliament (MEPs) is one way to reinvigorate the ECI.146 In addition, a more indirect participatory means of involving citizens in EU decision-making concerns the work of the EESC.147 Its advisory function focuses on giving economic and social interest groups a say in EU decision-making by issuing non-binding opinions on its own initiative or at the request of the Commission, the Council and the EP. Although established by the Treaties and possessing formal access to EU legislative forums, this Committee has only been able to exercise limited influence on the positions adopted by the aforementioned three institutions and, ultimately, on EU policy outcomes. Any influence largely depends on the timeliness and quality of the opinions provided, the opinions’ correspondence with the views of the EU legislature, and the extent to which Committee members engage in the informal promotion of their position.148 However, it remains unknown whether this Committee could and should become a more prominent actor in EU governance in an attempt to reconnect citizens with EU law-making.

C.  Participatory and Representative Democracy Disconnects As with the broader context of democratic innovation,149 the relationship between the EU’s two democracy paths – the representative and participatory ones – is 143 N Athanasiadou, ‘The European Citizens’ Initiative: Lost in Admissibility?’ (2019) 26(2) Maastricht Journal of European and Comparative Law 251–70, 266 et seq. 144 E Longo, ‘The European Citizens’ Initiative: Too Much Democracy for EU Polity?’ (2019) 20(SI2) German Law Journal 181–200, 198. 145 Greenwood (n 40); J Greenwood and K Tuokko, ‘The European Citizens’ Initiative: The Territorial Extension of a European Political Public Sphere?’ (2017) 18(2) European Politics and Society 166–81; M Weisskircher, ‘The European Citizens’ Initiative: Mobilization Strategies and Consequences’ (2020) 68(3) Political Studies 797–815. 146 U von der Leyen, ‘A Union That Strives for More – My Agenda for Europe’, https://ec.europa.eu/ commission/sites/beta-political/files/political-guidelines-next-commission_en.pdf. See also the text accompanying n 150 below. 147 Article 13 TEU. 148 C Hönnige and D Panke, ‘Is Anybody Listening? The Committee of the Regions and the European Economic and Social Committee and Their Quest for Awareness’ (2016) 23(4) Journal of European Public Policy 624–42; C Hönnige and D Panke, ‘The Committee of the Regions and the European Economic and Social Committee: How Influential are Consultative Committees in the European Union?’ (2013) 51(3) Journal of Common Market Studies 452–71, 453. 149 M Setälä, ‘Connecting Deliberative Mini-publics to Representative Decision Making’ (2017) 56(4) European Journal of Political Research 846–63; J Font et al, ‘Cherry-Picking Participation: Explaining the Fate of Proposals from Participatory Processes’ (2018) 57(3) European Journal of Political Research 615–36.

26  Davor Jančić poorly defined. The links between the aforementioned participatory methods of citizen involvement and high politics are unclear, given that the effectiveness of public participation as a rule depends on the political willingness of the addressees of citizen-generated proposals to act. On the one hand, the potential for parliamentary channels of EU democracy to ensure more impactful citizens’ participation in EU governance, other than by voting, has not been fully realised. The EP’s role in the ECI could go beyond hearings in the competent parliamentary committee and plenary debates towards a more assertive invocation of Article 225 of the Treaty on the Functioning of the European Union (TFEU), which enables the EP to request the Commission to submit to it a proposal for an EU act required for the implementation of the Treaties.150 There is a need to improve the manner in which not only the EP but also parliaments at the national, regional and local levels support and facilitate participatory democracy. As deliberative institutions with electoral mandates received directly from citizens, parliaments are well placed to help citizens become more politically engrained in EU governance. On the other hand, new developments may improve the existing governance patterns and provoke practices that could be more conducive to citizen input. This is already materialising with parliamentarians assisting the organisation of citizen consultations. The French Assemblée nationale was crucial to the promotion and implementation of Macron’s democratic conventions in an attempt to achieve transpartisan debate.151 Other national initiatives may also be instructive for the EU.152 The Citizens’ Assembly on Social Care organised by the UK House of Commons in April and May 2018 is a case in point. For the first time in Westminster, an assembly of 47 citizens was commissioned by the Health and Social Care Select Committee and the Housing, Communities and Local Government Select Committee, and was tasked with providing recommendations on long-term funding of adult social care in England.153 Judged a ‘huge success’,154 the assembly had a notable impact as its recommendations were subsequently reflected in the unanimously adopted parliamentary report.155 As stated by the two select committee chairpersons, Sarah Wollaston and Clive Betts, the citizens’ assembly gave them ‘reliable insight into the solutions that could command broad consensus’.156 150 Rules 222 and 47 of the EP’s Rules of Procedure. 151 Assemblé nationale, Commission des affaires européennes, Rapport d’information no 482 sur les conventions démocratiques de refondation de l’Europe, 7 December 2017. 152 See the essays in C Leston-Bandeira (ed), Parliaments and Citizens (Abingdon, Routledge, 2013). 153 A Walker et al, ‘How Public Engagement Became a Core Part of the House of Commons Select Committees’ (2019) 72(4) Parliamentary Affairs 965–86, 972. 154 R McKee, ‘A Deliberative Approach to Complex Policy Issues: The Citizens’ Assembly on Social Care’, UCL Constitution Unit Blog, 26 June 2018, https://constitution-unit.com/2018/06/26/ a-deliberative-approach-to-complex-policy-issues-the-citizens-assembly-on-social-care. 155 HC 768, ‘Long-Term Funding of Adult Social Care’, 1st Joint Report of the Health and Social Care and Housing, Communities and Local Government Committees of Session 2017–19, 27 June 2018. 156 S Wollaston MP and C Betts MP, ‘How a Citizens’ Assembly Helped Select Committees Find Social Care Consensus’, Hansard Society Blog, 10 October 2018, www.hansardsociety.org.uk/blog/ how-a-citizens-assembly-helped-select-committees-find-social-care-consensus.

The Institutionalisation of Citizens in the EU  27 Although it is unknown how regularly this kind of parliamentary engagement with citizens will be used in the future, an even larger citizens’ assembly on climate change, composed of 110 members randomly chosen by a so-called ‘civic lottery’, was mandated by six House of Commons select committees. With some disruption due to the outbreak of coronavirus, the assembly took place in person and via livestream in the first half of 2020, with the aim of discussing ways to achieve net-zero greenhouse gas emissions by 2050.157 While the assembly was launched by the famous naturalist Sir David Attenborough, who sent powerful messages to the participants, both he and other commentators were quick to warn about the expectations of the assembly, arguing that political will is critical for the implementation of any resulting recommendations.158 A similar 150-strong citizen assembly, named the Citizens Convention for Climate, was organised in France over the course of six months, starting in October 2019 and ending in March 2020.159 For its part, Belgium’s Province of Luxembourg, located in the Walloon region, organised a mini-public in the form of a Citizen Climate Parliament with 33 participants in 2015.160 Both the French and Belgian projects saw the prominent engagement of executive and parliamentary representatives. Despite their undeniable limitations, irregular structure and uncertain influence, grassroots participatory mechanisms of citizen involvement in EU governance should be regarded as complementary to representative democracy. Although modest, their added value lies in offsetting some of the deficiencies of daily partisan politics, fostering public debate and enabling cross-fertilisation of ideas between citizens, activists, experts and politicians. What the above overview of EU democracy disconnects shows is that citizen participation in EU public life eschews easy institutionalisation, with a multitude of disconnects hampering citizens’ constructive engagement in both formal and informal settings. Democratic unresponsiveness to citizens, inadequacies in addressing their concerns, and their instrumentalisation for legitimisation purposes are all serious and urgent problems.161 Institutionalised citizens’ input should become more fundamental to the legitimacy of European integration and the formal procedural guarantees of participation should be taken more seriously.

157 The assembly was co-funded by the House of Commons (£120,000) and two philanthropic organisations which did not have a say over the design and running of the assembly – the Esmée Fairbairn Foundation (£200,000) and the European Climate Foundation (£200,000). See Climate Assembly UK, www.climateassembly.uk. 158 See, eg, the comment that ‘one would have better luck trying to nudge a stream back up a ­mountain’ in S Buranyi, ‘A Citizens’ Assembly on Climate is Pointless if the Government Won’t Listen’, The Guardian, 17 February 2020, https://www.theguardian.com/commentisfree/2020/feb/17/ citizens-assembly-climate-pointless. 159 See Convention Citoyenne pour le Climat, www.conventioncitoyennepourleclimat.fr. 160 C Niessen, ‘When Citizen Deliberation Enters Real Politics: How Politicians and Stakeholders Envision the Place of a Deliberative Mini-public in Political Decision-Making’ (2019) 52(3) Policy Sciences 481–503. 161 G de Búrca, ‘Is EU Supranational Governance a Challenge to Liberal Constitutionalism?’ (2018) 85(2) University of Chicago Law Review 337–68, 365–66.

28  Davor Jančić Citizen participation ought to become more effective and engender enhanced responsiveness from EU institutions. With the Union undergoing post-Brexit and post-pandemic adjustment and aspiring yet another relance, now is the right time to jettison the idea of the European citizen as a passive and politically disengaged sovereignty bearer. One way to do this is to rethink and reform the burgeoning non-representative means of citizen participation. This is required because, although citizens are institutionally the weakest actors in EU governance, their continuously unaddressed discontent with the Union can gradually frustrate not only its future progress, but also its very existence as we know it.

IV. Structure The foregoing analysis of EU citizenship and democracy reveals the rapidly changing institutional position of citizens in EU governance. However, it also unveils a glaring tension between an intensifying discourse of citizen-centred governance and the questionable effectiveness of the existing instruments and practices of citizen participation in bringing about substantive democratic outcomes. The notion of governance by citizens is in reality more accurately described as governance in the name of citizens. The imagery of a collective of European citizens acting together as one transnational agent of democratic revival has been a powerful vehicle for framing the Union’s much-needed reform. To address these developments, this book focuses on several innovative aspects of citizen participation in the EU and incorporates reflections on the impact of the COVID-19 pandemic where relevant. Its structure reflects the above discussion and is grouped into four thematic parts. Part I addresses the institutional and constitutional position of citizens in EU public law. After this introductory chapter, citizens are conceptualised as an essential element of the EU democratic settlement in the European politeia (Chapter 2, Susanna Cafaro). Arguing that citizens are the ‘big absents’, the closer and more permanent involvement of citizens at the CoFoE is placed in the context of the overarching debate on EU democracy without a state and without a demos. Yet, despite the expansion of participatory endeavours, the constitutional elevation of citizens as political individuals must be accompanied by the protagonism of civil society. In this respect, the changing opportunity structures for civil society activism in EU participatory democracy are conceptualised through the lenses of interaction, coalition-building and competition among civil society groups in the Union (Chapter 3, Luis Bouza García). Part II is devoted to citizenship beyond elections and focuses on the nonelectoral political instruments of EU citizenship. The analysis begins with petitions to the EP as a wider but fairly neglected mechanism of non-electoral involvement of citizens at the EU level. The goal is to assess the institutional mechanics of it, appraise its added value and evaluate its current and potential contribution to

The Institutionalisation of Citizens in the EU  29 democratic participation (Chapter 4, Henri de Waele). The focus then moves to complaints to the European Ombudsman as the more impactful of the two participatory dimensions of EU political citizenship outlined above. An empirical legal inquiry is conducted into the way in which the Ombudsman utilises strategic inquiries to ensure the fulfilment of the right to good administration and foster a culture of transparency and accountability (Chapter 5, Marco Inglese). However, in order for citizens’ input in EU decision-making to be meaningful, transparency and timely access to relevant information is critical. Drawing on recent developments in CJEU case law, the conditions for the exercise of the fundamental right of access to documents in ongoing EU legislative procedures are inspected regarding the politically sensitive stages of the Commission’s proposal-making and trilogue negotiations between the Commission, the Council and the EP (Chapter 6, Natasa Athanasiadou). Part III centres on democracy beyond representation and is divided into two sub-parts. The first sub-part investigates citizen participation with respect to EU integration as such. This starts with a critical reflection on President Macron’s democratic conventions and the Commission’s citizen dialogues (Chapter 7, Davor Jančić). This chapter queries their effectiveness in enhancing EU-wide opinionforming and legitimation, and appraises their utility by discussing their institutional design and their ability to ensure democratic inclusion. Following up on this is an evaluation of the CoFoE (Chapter 8, Maaike Geuens). The chapter takes a historical approach by documenting previous similar participatory exercises, and moves on to discuss the Conference’s advantages and disadvantages, examining its potential for enhancing citizen participation. After this, an argument is developed in favour of establishing an EU-level Citizens’ Assembly that would enjoy the right to produce advisory recommendations for EU institutions (Chapter 9, James Organ). This chapter is based on insights from an empirical deliberative experiment and the CoFoE. The second sub-part addresses citizen participation with respect to EU legislation from the perspective of well-established but evolving agenda-setting and policy-making instruments. The examination begins with pre-legislative public consultations, which the Commission may organise when it decides that policy action at the EU level is needed (Chapter 10, Paolo Zicchittu). These consultations are evaluated for their effectiveness in fulfilling the promise of upstream citizen involvement. This is done by dissecting the applicable legal framework and by empirically testing the outcomes of a selection of the consultations completed thus far. We then turn to the ECI and its 2019 reform. The latter is subjected to an in-depth legal investigation to examine its potential to address the disconnect between the EU and the citizenry, and to respond to the criticisms concerning its legal regime and practical operation (Chapter 11, Mario Mendez). However, the next chapter shows that the benefits of the revised ECI legislative framework are relative. Based on recent CJEU case law, it is argued that the participatory capacity of this instrument, and its likelihood to result in EU legislative action, is limited due to it being trapped between a dominant Commission eager to assert its right

30  Davor Jančić of legislative initiative and a Court of Justice reluctant to interfere in the political process (Chapter 12, Jasmin Hiry-Lesch). Finally, as an advisory body with a strong interest in supporting participatory democracy in the EU in both the prelegislative and legislative phases, the EESC is critically evaluated as a platform for developing citizen participation through deliberation and civil society mobilisation (Chapter 13, James Organ and Nikos Vogiatzis). Part IV analyses the some of the pressing challenges and opportunities for citizen participation in the EU. The debate starts with democratic innovation and presents participatory experiments carried out by the Commission’s Joint Research Centre, the aim of which is to move beyond tokenistic town hall-style citizen consultations towards co-creation and material deliberation (Chapter 14, Paulo Rosa, Thomas Völker and Ângela Guimarães Pereira). This chapter also shows how the COVID-19 pandemic has hampered face-to-face modes of participation and discusses the impact that this can have on the Commission’s future policymaking processes. Building on this, the next chapter addresses the impact of COVID-19 on democratic participation. It does so by scrutinising the citizens’ attitudes towards the EU and their contributions concerning European democracy on the CoFoE multilingual digital platform (Chapter 15, Petar Marković). The concluding chapter summarises the main findings of the book in order to underline how they develop our understanding of the current state of EU democracy and what they teach us about the challenges for its future development (Chapter 16, Davor Jančić).

2 The European Politeia Democracy and Citizenship without a State SUSANNA CAFARO

I.  Citizens in the European Democratic Formula and why it Matters The notions of politeia and demos, both originating from the classic Greek culture, embody two different but complementary aspects of a community’s relationship with the political system that we have for the last few centuries been calling the state. They portray two different facets of citizenship, which itself is a complex legal, political and sociological notion. The first facet considered here, politeia, describes individuals’ relationship with the state, and their interaction with the state’s political system through more or less democratic channels and tools, which characterise its governance through different combinations of representative, direct and participatory democracy. Even in authoritarian regimes, politeia is the body of citizens subject to a government’s authority in a way which is specific to these citizens and excludes all those persons who, albeit living in the same territory, do not enjoy the same rights: strangers, aliens and migrants. We can therefore call politeia the community of those belonging to a civic body, which, d ­ epending on the rights it confers, qualifies and characterises the form of government. The second facet considered here is the result of a cultural, anthropological or sociological narrative that makes this community a nation, a people or, even better, a demos. A demos stands for common linguistic and cultural features, a patrimony of values, and shared beliefs and historical experiences. Even if this notion may be considered outdated and somehow artificially built,1 it still has deep roots in the

1 According to Eirikur Bergman, ‘nations can be seen as products of a common social understanding of those who belong to the national group’ and ‘are also most often a social and cultural creation of a distinguishable group of people who unite around a common understanding of their shared history’, while a similar view by Ruth Wodak sees nations as ‘perceptual constructs’ and ‘mental communities that people accept belonging to’. See E Bergman, Neo-nationalism: The Rise of Nativist Populism (Cham, Palgrave Macmillan, 2020) 32.

32  Susanna Cafaro collective imagination. This sociocultural core of the nation is the construction ground for patriotism and nationalism, which nowadays is an especially topical object of analysis.2 Demos and politeia usually go hand in hand, as they portray the same community from different angles. Yet, they are in many ways peculiar when observed in the context of European citizenship. A halfway notion, or a different way to construct a people’s identity, has been attempted in the field of constitutional law. As a construct of constitution-related self-identity, constitutional identity is indeed an appealing notion. However, the meaning of constitutional identity may vary over time due to changes in the content, interpretation and application of the constitution to which this notion refers.3 If analysed through the prism of these different notions, European citizenship stands apart for several reasons: first, it is a citizenship without a state; second, it is additional to rather than independent from national citizenship; third, it gives its holders a number of valuable rights, among them the right to non-discrimination when they move to another EU Member State; and, finally, it is not aimed at building a self-referential identity. Thus, within the European Union (EU), there is a two-tier system of citizenship, which, in some respects, multiplies the advantages of national citizenship. This original construction – built as a legal notion on the basis of common rules and institutions – pertains to the domain of politeia and scarcely impacts on the national demoi. As this chapter will argue, it is still doubtful whether the European demos actually exists. A better understanding of the elusive legal nature of European citizenship and its political dimension appears paramount in terms of understanding the legal nature of the Union itself. For this reason, this chapter does not focus on specific democratic participation rights of European citizenship, some of which are covered by the other chapters in this volume, but instead concentrates on the overall conception that underlies these rights. The chapter is structured as follows. The analysis starts by tracing the coexistence in the EU Treaties of citizenship as a singular notion and of the peoples as a plural notion (section II). The reasons for this coexistence are then illustrated by examining the EU’s peculiar sui generis form of government (section III). This political formula – rooted in the coexistence in the EU Treaties of one common citizenship and many peoples or demoi – has been enriched by the Lisbon Treaty through important conceptualisations owing to the provisions dedicated

2 This is particularly so as the impressive rise of populism and nationalism is testing democratic institutions like never before. See Bergman (n 1). 3 On the complex and multifaceted notion of constitutional identity, see D Fromage and B de Witte (eds), Special Issue on national constitutional identity (2021) 27(3) European Public Law 411–628; C Calliess and G van der Schyff, Constitutional Identity in a Europe of Multilevel Constitutionalism (Cambridge, Cambridge University Press, 2019); P Faraguna, ‘Constitutional Identity in the EU: A Shield or a Sword?’ (2017) 18(7) German Law Journal 1617–40; T Konstadinides, ‘Dealing with Parallel Universes: Antinomies of Sovereignty and the Protection of National Identity in European Judicial Discourse’ (2015) 34 Yearbook of European Law 127–69.

The European Politeia  33 to democratic principles and to the new Article 4(2) of the Treaty on European Union (TEU) (section IV). Despite this, the disconnect between a European dimension of citizenship and a national notion of the people persists (section V). The chapter demonstrates that, nothwithstanding this disconnect, the coexistence of a single citizenship with many demoi is not necessarily a flaw of the EU system, but a peculiarity which has some advantages. This coexistence does not frustrate the progressive creation of a more integrated European politeia that welcomes and respects the various national demoi within an overarching pluralist EU qualifiable as demoicracy (section VI). Some concluding remarks are then provided (section VII). This chapter thus depicts how EU representative democracy (Article 10 TEU) is complemented by participatory democracy (Articles 11 TEU et seq) in an attempt to bridge the gap between European citizens and EU institutions, and allow the Union to partly overcome the inadequate integration of the many demoi in the common European legal framework. The analysis highlights the relevance of participatory democracy in the Union’s political formula which stems from its own peculiar legal nature.

II.  The European Demoi in the Treaties The coexistence – and survival over time – of the national demoi appears evident from the choice by the EU founding fathers to guarantee and respect the multiple European national identities (the many demoi) as the building blocks of a system whose core value is pluralism. The European motto ‘united in diversity’, the principles of equality and non-discrimination among the citizens of the Member States (Articles 9 and 18 of the Treaty on the Functioning of the European Union (TFEU) respectively), the political choice of having 24 official languages (Article 55 TEU), the right of each European citizen and of each national parliament to communicate with EU institutions in their own language (Article 24 TFEU), and the commitment to respect cultural, religious and linguistic diversity (Article 22 of the EU Charter of Fundamental Rights) form a multicultural mosaic that testifies to a specific model of integration respectful of peoples and cultures. This political choice is reflected primarily in the Lisbon Treaty’s provisions on the EU’s democratic principles, which refer both to European citizens and to the peoples of the Member States. In addition to other legal provisions, the following paragraphs focus on analysing Article 10 TEU, which requires the Union’s functioning to be founded on representative democracy, and Article 11 TEU, which grounds its governance system on participatory democracy. These provisions already convey important conceptual changes at the terminological level. Concerning representative democracy, the provisions on the European Parliament (EP) have been retouched to replace references to ‘the peoples of the States brought together in the Community’ (former Article 189 of the EC Treaty) with those addressing ‘citizens’ (Article 10 TEU) and ‘the Union’s

34  Susanna Cafaro citizens’ (Article 14 TEU). Nonetheless, the ‘peoples’ remain in the Treaties in other significant contexts. The Union’s objective is not to eliminate every reference to nationality or to the peoples of the Member States, which are indeed recognised and enhanced through the plural notion of national communities. Article 1 TEU is paradigmatic in this respect, as the goal of an ‘ever closer union’ is to be achieved ‘among the peoples of Europe’. Similarly, Article 3 TEU specifies that the EU’s aim is to promote ‘peace, its values and the well-being of its peoples’. These provisions indicate the richness of the Union’s cultural and linguistic diversity. The same distinction between citizens and peoples is made in the Charter’s Preamble: Conscious of its spiritual and moral heritage, the Union is founded on the i­ndivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of ­freedom, security and justice … The Union contributes to the preservation and to the ­development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States. (Emphasis added)

In the founding EU documents, the word ‘peoples’ is repeatedly coupled with the goal of preserving cultural and historical features of the European demoi,4 making it clear that the raison d’etre for this terminological choice has historical, sociological and cultural roots which go beyond statehood. According to Article 10 TEU, the national demoi/peoples are represented by national parliaments, legitimising national governments and, indirectly, the Council and the European Council, while a single European politeia/citizenship is represented in the EP. The role of citizens is stressed in Article 10(3) TEU, which states: ‘Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen’. In Article 11 TEU, the word ‘citizens’ appears four times. There is no doubt that participatory democracy is related to EU citizenship, encompassing both individuals and intermediate bodies forming the civil society.5 Yet, it is important to demonstrate how Articles 10 and 11 TEU prescribe, for the first time, a model of EU democracy that is based on both representative and participatory democracy. The European politeia finds shelter under a common roof of values, principles and rules aimed at ensuring pacific coexistence and shared prosperity. Among the European countries, there are strong elements of cultural commonality, especially in the context of a globalised world. Europe’s common ‘spiritual and moral heritage’6 is not a rhetorical invention, but a clear political choice by the Union’s 4 Preamble to the TEU, Article 167(2) TFEU and Preamble to the EU Charter of Fundamental Rights. 5 C Marxsen, ‘Participatory Democracy in Europe: Article 11 TEU and the Legitimacy of the European Union’, in F Fabbrini et al. (eds), What Form of Government for the European Union and the Eurozone? (Oxford, Hart Publishing, 2015) 151–69, 152. 6 Second recital in the Preamble to the EU Charter of Fundamental Rights.

The European Politeia  35 founders to ground its legal order on a citizenship and not on a people. However, in the EU political and institutional framework, there is a problem of devising an increased involvement of citizens in EU democratic processes. This is because periodic voting by citizens is insufficient, either in terms of making those who govern fully accountable or in terms of fostering a sense of empowerment among EU citizens. To this end, the Treaties contain provisions aimed at promoting and improving citizens’ participation in EU governance. The notion of participation refers to a core dimension of citizenship. In fact, participation in the exercise of public power lies at the heart of European citizenship: it underlines that citizens’ membership of and relationship with a community is not merely a legal status, but includes active contribution to the European public sphere and to the EU’s many decision-making processes. European politeia thus embodies active citizenship, understood as an active form of citizen p ­ articipation in EU public life. This participatory approach to EU policy-making and law-making processes is guaranteed by the post-Lisbon versions of the founding treaties (Articles 6, 9–11 TEU and Articles 15, 20, 24–25 and 298 TFEU) and the Charter (Articles 39–44).7 Although some authors argue that the ‘peoples’ dimension is dominant in the model of EU democracy or demoicracy,8 this chapter maintains that the role of citizens and the increasing role of a single politeia are an added value of EU governance that sets the Union apart from any other governance model born from an association of sovereign states. This model is dynamic as the role of citizens increases over time, concurrently with the overarching goal of creating an ‘ever closer Union among the peoples of Europe’.

III.  Active Citizenship as Part of a ‘System of its Kind’ European citizenship is an essential element of the EU’s original democratic formula, although at that time it was no more than the ensemble of the citizens of the Member States. The need to look for (and to find) legitimacy in citizenship deserves to be analysed because it is a peculiar expression of this supranational system.9 Although the most effective expression of the Union’s dual legitimacy – by its Member States and by their citizens – can be found in the post-Lisbon EU Treaty, this quest for legitimacy is by no means new in the European integration

7 V Cuesta Lopez, ‘The Lisbon Treaty’s Provisions on Democratic Principles: A Legal Framework for Participatory Democracy’ (2010) 16(1) European Public Law 123–38; J Mendes, Participation in EU Rule-Making: A Rights-Based Approach (Oxford, Oxford University Press, 2011). 8 R Bellamy, ‘“An Ever Closer Union among the Peoples of Europe”: Republican Intergovernmentalism and Demoicratic Representation within the EU’ (2013) 35(5) Journal of European Integration 499–516. 9 See LS Rossi, ‘A New Inter-institutional Balance: Supranational vs. Intergovernmental Method after the Lisbon Treaty’ in N Parisi et al (eds), Scritti in Onore di Ugo Draetta (Napoli, Editoriale Scientifica, 2011) 645 ff.

36  Susanna Cafaro process. In fact, it becomes even more pertinent if one considers that the lack of citizens’ ownership of this process is often considered a cardinal sin and a ­reflection of its elitist nature.10 Although European citizenship was only established in the Maastricht Treaty in 1992, the grounding of the EU’s democratic formula on the legitimising role of citizens is much older, as testified by the case law of the European Court of Justice (ECJ) since the 1960s. As beneficiaries of rights and as actors in democratic processes, citizens have always been declared a fundamental tile in the mosaic of European governance. Even if the role of citizens in this early stage of European integration may not appear impressive, two important considerations shed light on the evolution of their status. First, the difference between the then European Economic Community and any other international organisation was precisely that citizens were direct, rather than mediated, addressees of European norms; while classic international organisations addressed and still address their acts, themselves rarely of a binding nature, to Member States only. Second, citizens were immediately given an autonomous role in the European legal order, although not always locus standi as such. It is no coincidence that many of the leading cases through which the ECJ defined the legal nature of the Community and the characteristics of the European integration process were born precisely from the preliminary ruling references solicited by citizens and often stemming from cases of modest economic value.11 Although the starting points are well known, they are worth recalling. In the landmark Van Gend en Loos case (1963), the ECJ for the first time defined the Community as ‘a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields and the subjects of which comprise not only member states but also their nationals’ (emphasis added).12 The Court quoted this same statement in other famous ­decisions such as Costa v ENEL (1964), Simmenthal (1978), Francovich (1991) and Opinions 1/91 (1991) and 1/09 (2011).13 This ‘exceptionality’ of the European legal 10 A Follesdal and S Hix, ‘Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’ (2006) 44(3) Journal of Common Market Studies 533–62. See contra G Majone, ‘Europe’s “Democratic Deficit”: The Question of Standards’ (1998) 4(1) European Law Journal 5–28; A Moravcsik, ‘The Myth of Europe’s “Democratic Deficit”’ (2008) 43(6) Intereconomics 331–40. 11 I agree with Jo Shaw, who points out that ‘in the sphere of citizenship, regional integration EU-style began with legally enforceable but not unconditional freedom of movement for persons, buttressed by principles of mutual recognition, guarantees of non-discrimination on grounds of nationality, and legislative measures taken to ensure a level playing field within a single market’. See J Shaw, ‘“Shunning” and “Seeking” Membership: Rethinking Citizenship Regimes in the European Constitutional Space’ (2019) 8(3) Global Constitutionalism 425–469, 432. 12 Case 26/62, Van Gend en Loos v Nederlandse Administratie der Belastingen, 5 February 1963, para 3. See the far-reaching implications of this decision in D Chalmers and L Barroso, ‘What Van Gend en Loos Stands for’ (2014) 12(1) International Journal of Constitutional Law 105–34. 13 Case 6-64, Flaminio Costa v ENEL, 15 July 1964; Case 106/77, Amministrazione delle Finanze dello Stato v Simmenthal SpA, 9 March 1978; Cases C-6/90 and C-9/90, Andrea Francovich and Danila Bonifaci and Others v Italian Republic, 19 November 1991; Opinion 1/91 of 14 December 1991; and Opinion 1/09 of 8 March 2011.

The European Politeia  37 order was recently highlighted in Opinion 1/17 from April 2019.14 After the first reference to citizens as the building blocks of European integration was made in Van Gend en Loos, the Costa v ENEL case followed a year later, underlining that ‘the member states have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves’ (emphasis added).15 The two cardinal principles established by Van Gend and Costa – direct effect and the supremacy of EU law over national law – were both grounded on the direct relationship between the European legal order and citizens. In terms of political participation, the European notion of democracy gained significance through the direct election of the EP since 1979. The legitimising role of the EP in Community decision-making procedures was stressed by the ECJ in Roquette Frères in 1980, because ‘it reflects at Community level the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly’ (emphasis added).16 These early judicial pronouncements have reinforced the Parliament’s role in the consultation procedure, and later helped to improve its position in the cooperation and co-decision procedures, until its role was finally entrenched within the current ordinary legislative procedure. At that time, the evaluation of the democratic dimension of European integration was limited to measuring the role of the EP, which was rightly considered to be at the core of the debate on the Communities’ democratic deficit. A turning point has been the creation of a European citizenship. This transformed what was predominantly an economically focused treaty – that establishing an European Economic Community – to one that had significant political a­ spirations, leading to the adjective ‘economic’ being dropped. The inclusion of a Title on democratic principles in the Lisbon Treaty may therefore appear as the completion of a long-awaited process. Representative democracy is now firmly complemented by participatory democracy, while, as demonstrated in other chapters in this volume, non-electoral channels are considered almost as important as electoral ones. Another significant argument concerning the development of EU democracy pertains to the relationship between citizens and institutions as embodied by the notion of the ‘republic’. Historically, this notion was for centuries used to refer to democracy itself and was considered as an alternative to monarchy, but is nowadays only referred to in the context of sovereign states. Yet, the EU is also a ‘republic’ in the original, Latin meaning of the word if it is understood as res publica or public good: a public sphere where some public goods are shared among the citizens.17 14 Opinion 1/17, 30 April 2019, paras 109–10. 15 Case 6-64, Flaminio Costa v ENEL, 15 July 1964, para 3. 16 Case 138/79, SA Roquette Frères v Council of the European Communities, 29 October 1980, para 33. The same formula is recurrent in ECJ case law, eg, Case C-392/95, Parliament v Council, 10 June 1997, para 14. 17 S Collignon (ed), The Governance of European Public Goods: Towards a Republican Paradigm of European Integration (Cham, Palgrave Macmillan, 2017) 43; C Morini, Dialogo e Partecipazione nella Governance dell’Unione Europea (Bari, Cacucci Editore, 2020) 60.

38  Susanna Cafaro Even if the existence of a European public sphere remains controversial,18 the existence of many European public goods and their direct correlation with individual beneficiaries is an assumption that cannot be questioned. Article 3 TEU lists several tangible and intangible public goods guaranteed or regulated within the European legal order: peace; freedom, security and justice; a high level of protection and improvement of the quality of the environment; technological advancement; cultural heritage; internal market; freedom of movement; a common currency; and price stability. European citizenship itself may be defined as an immaterial good too – a basket of rights, duties and values. Within this reasoning, the populus of the ‘European Republic’ would be made up of all the citizens of the EU, who share the same rights, including the right to participate in the democratic life of the Union. The Treaty of Lisbon indirectly legitimises this assumption by stating that citizenship in the EU translates into a catalogue of rights and duties. Therefore, the Union’s system ‘of its kind’ may be considered democratic in two ways: (i) as a form of governance which integrates representative and participatory democracy at the national and EU levels; and (ii) as a form of governance which promotes and guarantees shared goals and values, and regulates a number of public goods. In this context, citizen participation represents a distinctive democratic feature of EU governance, foreseen by the Treaties and evidenced in the opportunities for citizens to build relations and engage in dialogue with EU institutions, particularly the EP and the Commission. Citizens may indeed have a significant impact on the definition of the EU political agenda as a matter of public opinionforming and, to a lesser extent, through the channels of participatory democracy which may accompany various EU decision-making processes.

IV.  The Contribution of the Lisbon Treaty to Defining the European Political Formula The role of citizens in EU governance, reaffirmed in post-Lisbon Articles 9–11 TEU, seeks to establish a direct link between European citizenship and EU democracy. It is only with this Treaty revision that citizenship became directly related to the European political formula and to the European democratic principles. Citizenship is now part of the conceptual frame which the EU uses to define itself. Yet, these Treaty provisions codify the notions already present in the case law. Unsurprisingly, the opening article of the TEU avoids defining the EU as a democracy (or even as a republic), thus confirming its traditional reticence towards terminological choices that could suggest an evolution towards statehood and marking a clear difference with national constitutions. This opening sentence 18 O Baisnée, ‘The European Public Sphere Does Not Exist (At Least it’s Worth Wondering …)’ (2007) 22(4) European Journal of Communication 493–503.

The European Politeia  39 is perfectly in line with the vision so dear to the German Federal Constitutional Court depicting the Member States as ‘masters of the treaty’, a view deeply rooted in international law. Under Article 1 TEU, ‘the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called “the Union”, on which the Member States confer competences to attain objectives they have in common’ (capitals in original). This sentence is, at least, an understatement compared with the constitutional language of the post-Lisbon Articles 10 and 11 TEU. Even before then, it was difficult to dispute the Union’s commitment to a series of democratic values enshrined in Article 2 TEU, revised several times with the intention of increasing and specifying a common heritage of values: respect for human dignity, freedom, democracy, equality, the rule of law, respect for human rights, including the rights of persons belonging to minorities, as well as pluralism, non-discrimination, tolerance, justice, solidarity, and equality between women and men. Yet, the turning point in the citizens-EU relationship was the insertion into the TEU of Title II entitled ‘Provisions relating to democratic principles’ (Articles 9–12 TEU) and more specifically of Article 10 TEU, which grounds the Union in representative democracy. This served to confer on European citizenship a clear political role in legitimising EU political institutions: directly through the EP and indirectly through the Council and the European Council, where Member States are represented (Article 10(2) TEU). This codifies a two-level governance, which becomes multilevel governance through the reference in Article 4(2) TEU to the states’ ‘fundamental structures, political and constitutional, inclusive of regional and local self-government’. This complex architecture is meant to encourage participation at all levels, for which purpose ‘[e]very citizen shall have the right to participate in the democratic life of the Union’ and ‘[d]ecisions shall be taken as openly and as closely as possible to the citizen’ (Article 10(3) TEU). However, its incompleteness is demonstrated by the absence of real European political parties that represent citizens’ interests.19 Political groups in the EP are merely an embryonic form of political parties, although they are gaining influence in the EU public sphere. The legitimacy of the European Commission, too, is indirectly built on citizenship, as its President is appointed by the European Council ‘[t]aking into account the elections to the European Parliament’ and then ‘elected by the European Parliament by a majority of its component members’, while the other Commission members are ‘subject as a body to a vote of consent by the European Parliament’ and then ‘appointed by the European Council’.20

19 I Ingravallo, ‘Il (Modesto) Contributo dei Partiti Politici Europei alla Definizione del Profilo Democratico Rappresentativo dell’Unione Europea’, Blog of AISDUE (L’Associazione Italiana degli Studiosi di Diritto dell’Unione Europea), 1 October 2019, www.aisdue.eu/ingravallo-il-modesto-contributo-deipartiti-politici-europei-alla-definizione-del-profilo-democratico-rappresentativo-dellunione-europea. 20 Article 17(7) TEU.

40  Susanna Cafaro A sign of the TEU’s modernity lies in the introduction of participation rights in Article 11 TEU, both as individual and collective rights. Most of them were in place even before the Lisbon Treaty in the form of broad consultations carried out by the European Commission on White and Green Papers.21 Yet, the choice of framing them as the general duty for 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’ is the expression of a mature vision of democracy in which the role of citizens goes well beyond the electoral appointment every five years.22 The real novelty in Article 11 TEU is the European Citizens’ Initiative (ECI), allowing one million citizens who are nationals of a significant number of Member States to invite the Commission to submit a legislative proposal within the framework of its powers.23 Although this instrument was created to enhance participatory democracy and improve legitimacy in the EU, the ECI is a hybrid mechanism of democratic participation: it is not a genuine right of initiative as this remains firmly in the hands of the Commission; nevertheless, it is more significant than a petition to the EP as it entitles citizens to make legislative and regulatory suggestion in different policy areas. In this sense, the ECI can be considered a ‘pre-initiative right’. However, this right provides precise participation rights and allows citizens to raise issues not yet present on the Commission’s political agenda or on which a consultation process has not yet begun, thus obliging the Commission to take a position on these issues. As some of the previous ECIs have addressed socially and ethically important issues (eg, social rights, embryo rights, animal rights, solidarity issues, environmental protection, education, pluralism of the media and sustainable development), it could be argued that the ECI covers a space of needs and aspirations which are widely perceived, but which would be hard to channel through the Commission’s services.

V.  Is there a European Demos in the Making? The recognition in the EU Treaties of the peoples of the Member States is a corollary of the lack of autonomous recognition of a European people by any official EU document. According to some of the legal scholarship, this is due to the absence of a ‘sense of social cohesion, shared destiny and collective self-identity’,24 or the lack in the EU of a subjective perception of a single ‘peoplehood’ (or demos), as there is 21 For more on citizen consultations, see ch 10 by Paolo Zicchittu in this volume. 22 A Alemanno, ‘Europe’s Democracy Challenge: Citizen Participation in and beyond Elections’ (2020) 21(S1) German Law Journal 35–40. 23 See more on the ECI in ch 11 by Mario Mendez and ch 12 by Jasmin Hiry-Lesch in this volume. 24 See the continuing validity of the reflections offered in JHH Weiler et al, ‘European Democracy and its Critique’ (1995) 18(3) West European Politics 4–39, 10.

The European Politeia  41 neither sufficient social cohesion nor a sense of shared destiny and collective identity that would generate loyalty towards the Union itself. This is the well-known ‘no-demos thesis’.25 Moreover, there is an important aspect of European citizenship that could be used empirically to reinforce both the no-demos and the ‘demoicracy’ arguments: namely, the fact that there is no autonomous process of acquiring and losing it. Far from being merely an administrative mechanism, the acquisition of citizenship reflects important choices on how to integrate individuals into the social fabric and on the content of the rights derived from that citizenship. The relationship between the individual and the territory of the state where he or she belongs is part of the citizenship equation, but only if this link is recognised by national law as being genuine and sufficiently strong, the latter capable of being defined very differently from one state to another. Unsurprisingly, the ECJ has often emphasised the importance of national procedures for acquiring citizenship as well as the seriousness of the reasons that can lead to its deprivation, exactly because the latter entails the loss of European citizenship.26 Yet, while the notion of a demos is widely debated, so is the very existence of a European identity. The Lisbon Treaty seems to have added a layer of complexity to the debate about European identity by guaranteeing in Article 4(2) TEU that ‘[t]he Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’ (emphasis added). Even if the Treaties do not define the notion of ‘national identity’,27 it is possible to assume that it can be considered an element that is vital to underlining the importance of the existing differences among the Member States. This notion aims to strengthen the idea – summarised in the EU’s ‘united in diversity’ motto – that the existing differences in relation to culture, language and traditions are an added value of EU integration. In this sense, the ‘European model’ stands in contrast with what is generally defined as the ‘melting pot model’ that characterises the US. 25 J Baquero Cruz, ‘The Legacy of the Maastricht Urteil and the Pluralist Movement’ (2008) 14(4) European Law Journal 389–422; A Peters, ‘European Democracy after the 2003 Convention’ (2004) 41(1) CML Rev 37–85. 26 See the seminal Rottman case (Case C-135/08, Janko Rottman v Freistaat Bayern, 2 March 2010), in which the ECJ has already clarified that each Member State has the competence to regulate the conditions for acquisition and loss of nationality, while having to have due regard to EU law. In the Tjebbes case (Case C-221/17, MG Tjebbes and Others v Minister van Buitenlandse Zaken, 12 March 2019), the ECJ specified that the required assessment should have regard to the person’s interest (applying the principle of proportionality), the Member State’s interest (whose competence is undeniable) and the EU interest (by considering the possible loss of the EU citizenship). 27 On the potential impact of Article 4(2) TEU, see G di Federico, ‘The Potential of Article 4(2) TEU in the Solution of Constitutional Clashes Based on Alleged Violations of National Identity and the Quest for Adequate (Judicial) Standards’ (2019) 25(3) European Public Law 347–80. As this author underlines, the reference to national identity is not new in the Treaties, as it first appeared in Article F in the Maastricht Treaty, but was significantly expanded in the Lisbon Traty (and before it by the Convention drafting the so-called Constitutional Treaty), such that ‘with the Lisbon Treaty the identity clause is fully justiciable’ (ibid 355).

42  Susanna Cafaro The latter is the result of a completely different goal – building a society that absorbs and homogenises heterogeneous cultural elements through a ‘melting together’ – which ultimately aims at building an American identity. The ­historical and contextual differences are certainly very relevant and help to explain such divergent choices made by the EU and the US. In the US, the construction of a demos was seen as the objective of integrating in a given territory migratory waves of various origins. In Europe, however, the objective is the construction of a legal and political space of collaboration and peaceful coexistence between the different peoples, each of which have their own identity. Article 4(2) TEU can be understood both as something more and as something less than a national identity clause. It is something less than that, because it merely defines an identity of a constitutional nature28 and refers to the Member States’ fundamental constitutional structures. It is something more than that because it gives national supreme courts a judicial remedy to protect national fundamental interests, or at least national legal peculiarities. However, the first decade of the ECJ’s application of Article 4(2) TEU shows great caution because although due attention was paid to the arguments for invoking this clause, the latter was not applied as an autonomous remedy. Article 4(2) TEU can therefore be regarded as a ‘constitutional device to defuse constitutional clashes generated by the real or apparent collision between, on the one side, the need to ensure the autonomy and the effet utile of EU law and, on the other side, the need to protect the fundamental structures and essential functions of the Member States’.29 Furthermore, some constitutional courts – the German Federal Constitutional Court being paradigmatic of this approach – still rely on national constitutions to erect embankments against the overflow of European law and policies.30 However, reaffirming the importance of national identities, both as constitutional and as cultural identities, does not exclude the existence or the progressive strengthening of a European identity. Multiple identities are possible and in a system of multilevel governance such as the EU, they might even seem commonplace. Still, the notion of European identity remains a weak one. It is true that, since 1992, European citizenship has only been a set of additional rights, a status added to national citizenships – itself barely visible if not embodied in the format of a passport. The key to the progressive construction of a sense of belonging lies 28 As is noted in G van der Schyff, ‘The Constitutional Relationship between the European Union and Its Member States: The Role of National Identity in Article 4(2) TEU’ (2012) 37(5) European Law Review 563–83, ‘national identity in art. 4(2) TEU becomes a valuable asset as it mandates the constitutional individuality of each Member State to be factored in by the European Union in a spirit of dialogue’ (at 583). For this author, even if the primacy of EU law remains undisputed, the provision is precious as it promotes a ‘search for accommodation in a shared constitutional space, which implies an exchange based on sincerity, tolerance and acceptance of the other’ (at 568). In support of this interpretation, the author refers to LFM Besselink, ‘National and Constitutional Identity before and after Lisbon’ (2010) 6(3) Utrecht Law Review 36–49. 29 Di Federico (n 26). 30 Konstadinides (n 3). In this respect, the BVerfG’s judgment of the Second Senate of 5 May 2020 (2 BvR 859/15) was particularly significant.

The European Politeia  43 precisely in participatory democracy, understood as active citizenship. However, the construction of an identity akin to nationality is not among the aims of EU law. In my opinion, a supranational governance system whose very purpose is to overcome borders and prevent clashes among nations is not intended to evolve into a single European nation, as it cannot be national and supranational at the same time. The very essence of its being supranational is in its respect for the diversity and peaceful coexistence of the different peoples (and thus nations) in the filigree of the Treaties, which are aimed at an ‘ever closer union’ and not at the cancellation of differences. Moreover, the so-called ‘demos problem’ may be addressed from an entirely different perspective: one could consider a demos not as a precondition for building a democratic governance system, but instead as a potential byproduct of it. In history, a people or demos sometimes comes first: a community sharing collective identity reaches its independence and forges the constitutional tools to manage itself independently. This process has sometimes been inverted: a governance system, whether democratic or not, encourages individuals to regard themselves as a community of destiny.31 There is therefore space and scope for building the missing European demos or, better, for witnessing its progressive evolution. This approach could provide significance to the goal of creating an ‘ever closer union’ stated in Article 1 TEU and a motivation for attempts to write a constitution for Europe, a process which, in Habermas’ words, would be ‘catalytic’.32 Indeed, it is precisely through democratic governance that it is possible gradually to build a public sphere, strengthen the role of European political parties, encourage the creation of European media, stimulate the participation of civil society and promote social cohesion.33 This change in perspective would encourage a different approach to EU democratic identity: instead of asking what is lacking for citizens to feel as part of a European people, the question could be one of the means by which Europeans could feel stronger commonality among them without losing the cultural diversity that characterises them. Other elements which would add value to the current legal construct of European citizenship concern duties and responsibilities. As most citizenships nowadays, European citizenship is more about rights than about duties. Many duties traditionally attributed to citizenship – such as the duty to pay taxes and to defend the country in the case of war, and a general duty of loyalty – are not connected with the European legal order as much as they are with national ones. Even at the national level, these duties are vanishing due to practical or historical reasons. On the one hand, the duty to contribute to national budgets through the payment of taxes is increasingly linked to residence, resulting in the hollowing-out 31 Italy offers a good example of this inverted process. Although its political unification was almost completed in 1861 (with the addition of Rome in 1870), citizens only later progressively gained awareness of themselves as a people, having previously had strong local identities. 32 J Habermas, ‘Why Europe Needs a Constitution’ (2001) 11 New Left Review 5–26. 33 Morini (n 16) 76.

44  Susanna Cafaro of the traditional maxim of ‘no taxation without representation’, because migrants often enjoy limited or no representation. On the other hand, military service is increasingly evolving into a paid profession.34 Nonetheless, responsibilities are as significant an element of social cohesion as is fiscal solidarity: the evolution of the EU’s ‘own resources’ legislation through the adoption of an ambitious plan of recovery from the COVID-19 pandemic called Next Generation EU can contribute to improving the relationship between European citizens and EU institutions. First, this plan is financed by the issuance of European bonds, so through a form of financial solidarity. Second, it pursues a systemic economic goal: the relaunching of the European economy through the enhancement of environmental and digital dimensions of the economy. Third, spending is addressed to different areas of the EU not on the basis of the size or importance of the states, but on the basis of the needs and losses suffered during the pandemic, and therefore in the interest of citizens. Finally, when the bonds reach maturity, they are to be repaid through the creation of new own resources of the Union, so through new European taxes. A further element of solidarity has been foreseen by the European Commission, as it has promised to deliver a European Unemployment Benefit Scheme.35 The dynamic character of European citizenship is further demonstrated by Article 25 TFEU, which commits the Commission to report to the EP, the Council and the European Economic and Social Committee every three years on the application of the provisions of Part II TFEU dedicated to ‘non-discrimination and citizenship of the Union’. Based on this report, the Council, acting unanimously after obtaining consent of the EP, may adopt provisions to strengthen or to add to the citizens’ rights. Such provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements. The latest self-reflection process in EU governance, the Conference on the Future of Europe (CoFoE), was launched as an open participatory platform in April 2021 and came to an end in May 2022.36 It first appeared in the Political Guidelines presented by Commission President Ursula von der Leyen on 16 July 2019, which cites the aim of bringing citizens together, including giving a significant role to young people, civil society and EU institutions as equal partners. The Conference included a multiplicity of channels through which citizens could make their voices heard. The first channel consisted of the citizens’ panels, which discussed a wide variety of policies and formulated recommendations. The panels were designed to be representative in terms of geographical origin, gender, age, socioeconomic background and/or the level of education. The second channel related to direct participation on the dedicated digital platform, allowing

34 See on this point D Kochenov, Citizenship (Cambridge MA, MIT Press, 2019) 21. 35 This idea was mentioned in the Four Presidents’ Report entitled ‘Towards a Genuine Economic and Monetary Union’ (December 2012). This goal is currently one of the responsibilities of Commissioner Paolo Gentiloni in the Von der Leyen Commission. 36 See more on the CoFoE in ch 8 by Maaike Geuens in this volume.

The European Politeia  45 citizens to express individual or collective positions. The third channel referred to the inclusion of citizens in the Conference’s plenary assemblies, enabling them to work together with representatives of EU institutions as well as with national and local authorities. This latest effort to shorten the distance between citizens and EU institutions goes in the direction of ‘demos in the making’. It is also an innovative one, highlighting the role of citizens more than ever before.37 Nonetheless, the outcomes of this Conference are not guaranteed as they will depend on the extent and visibility of participation and on the concrete outputs that it will be able to produce in the future. However, even if European citizenship could eventually evolve into a selfrecognising civic body, it could never become a demos in the traditional sense. The demoicracy model – a democratic governance system recognising and respecting the identity of the many demoi composing it – makes the EU a very special legal construct and a governance system ‘of its kind’ as an original creation.38 Finally, the lack of a European demos is not as important as is the citizens’ ability to participate in EU governance through non-electoral channels as an active politeia. The Union’s civic body, as a ‘community of law’,39 is not yet a traditional demos and – although progressively evolving towards cohesion through democratic participation – is unlikely ever to become one in the classic ‘national’ sense.

VI.  The Pros and Cons of a European Politeia without a European Demos Paradoxically, just as the EU embarked on progressive integration with significant symbolism – the flag and hymn in the 1980s, the creation of the Union and of European citizenship, the introduction of the single currency in 1992, the Charter of Fundamental Rights in 2000, the TEU Title on democratic principles in 2009 and, eventually, the CoFoE in 2021 – it appeared increasingly concerned about the respect for national cultural identities and exhibited strong centrifugal forces, such as Brexit, the Hungarian and Polish governments’ less than compliant attitude to the rule of law, and the difficulties in devising a fair system of managing the migration crisis.40 37 The innovation of the formula was inter alia pointed out in: A Alemanno, ‘Releasing Europe’s Democratic Genie’, Social Europe, 1 July 2021, https://socialeurope.eu/releasing-europes-democraticgenie. 38 F Cheneval and F Schimmelfennig, ‘The Case for Demoicracy in the European Union’ (2013) 51(2) Journal of Common Market Studies 334–50. 39 The term ‘community of law’ became popular in the 1960s thanks to the Commission’s first President Walter Hallstein and, later on, thanks to ECJ case law (see Case C-294/83, Parti écologiste ‘Les Verts’ v European Parliament, 23 April 1986). It stresses the role of the ‘rule of law’ principle as a foundation of the European Community and now of the EU. 40 The complex dialectic between EU citizenship and national citizenship, and the centrifugal and centripetal thrusts that can derive from them are well highlighted by Jo Shaw, who analyses, as case studies, both the events at the north-western (Brexit) and south-eastern (the Western Balkans’ accession process) borders of the Union. See Shaw (n 11).

46  Susanna Cafaro As Eurobarometer reports show, the EU, while formally democratic, is perceived as distant by most of its citizens.41 Its democratic formula, being sui generis, falls short of providing a sense of commonality and is difficult to communicate, ­causing many citizens not to understand exactly how it operates and through which democratic transmission chains they can have their voices heard. Yet, the tension between European integration and freedom from European constraints in the name of national identity seems to be immanent in the EU project, demonstrating that even if there is a (sometimes doubtful) commonality of goals among the Member States, these goals are not necessarily interpreted by all actors in the same way. In this sense, as a specific commitment undertaken within the EU legal order, the coexistence of a European citizenship (as a European politeia providing electoral and participatory democratic rights) and of national demoi (as collectives whose constitutional and cultural identities have to be preserved) allows us to frame the goal of ‘an ever closer union’ as a clear political compromise. Article 167 TFEU obliges the EU to ‘contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore’. This is a clear manifesto not for the Europe des patries (Europe of the nations) longed for by Charles de Gaulle, but certainly for the Europe of the peoples. Yet, the Treaty reference to common cultural heritage is in reality not very prominent. The most visual representation of it is the graphics of the euro banknotes, which depict bridges, arches and gateways, illustrate architectural styles, and represent different ages and styles common to the whole Europe – classical, romanesque, gothic, renaissance, baroque, art nouveau and modern. Although there are similar scholarly views that a common national or quasi-national identity is a not a necessary ingredient of transnational democracy,42 it seems that in addition to national and regional identities, a sense of commonality is indeed required.43 The process of mutual recognition among the European peoples and the progressive political selfrecognition of European citizens is not only a long-term one,44 but also one whose 41 According to a recent Eurobarometer report, some 48% of European citizens tend not to trust EU institutions, while for 19% of them, the EU conjures up a total ‘negative’ image (40% of them were ‘neutral’ about it, another 40% had a total ‘positive’ image and 1% selected ‘don’t know’). See European Commission, ‘Standard Eurobarometer 93–Summer 2020’, doc no 2262/STD93, October 2020, 121. 42 As Vesco Paskalev writes, ‘a common identity (or solidarity) is not a sine qua non for a transnational democracy. This is so if we take decision-making through inclusive and rational public deliberation to be the single foundational principle of modern democracy’. The author bases his theory of a transnational demoicracy on the mechanism of participation of national parliaments in the legislative process as described in Protocol 2 on the Application of the Principles of Subsidiarity and Proportionality attached to the Lisbon Treaty. See V Paskalev, ‘Lisbon Treaty and the Possibility of a European Network Demoi-Cracy’, EUI Working Papers 2009/20, 1. 43 This has nonetheless been successfully built through shared experiences as experimented by the so-called Erasmus generation, referring to some 9–10 million students who have benefited from different student exchange programmes since the scheme’s establishment in 1987 (see Council Decision [1987] OJ L166, 25 June 1987). 44 P Magnette, ‘How Can One Be European? Reflections on the Pillars of European Civic Identity’ (2007) 13(5) European Law Journal 664–79.

The European Politeia  47 evolution depends on the success of EU policies that foster citizens’ inclusion and participation. To this end, the effective promotion, through adequate communication channels, of all the available tools of participatory democracy in the EU could play a pivotal role. Splitting the concepts of citizenship and nationality, with the former existing both at national and European levels and the latter only at the national level, is a clear feature of an original political project and not one of an unfinished political project. This does not signify that European integration will not go further. If it does, it will do so respecting and guaranteeing the EU’s dual levels of legitimacy. The progressive creation of a European identity, stemming from increased civic participation and the development of a sense of belonging, is unlikely to entail any fading of national identity and belonging, just as national identity does not appear to have diminished strong local identities in many Member States. The choice to split citizenship and nationality has its own advantages. First, it does not conflict with national identity as guaranteed by the TEU and it promotes an integration model based on the coexistence of diversities. Second, it better responds both to the need to reassure the defenders of national sovereignty and thus reduce the risks of nationalist reactions, as well as to the need to address the fear, even if irrational, of losing national identities.45 Third, it prevents the emergence of European nationalism, which, quoting Albert Einstein, one could define as a form of ‘disease’ of nationality.46 As the European Coal and Steel Community (1951) and the European Economic Community (1957) owe their very existence to the goal of building lasting peace among European countries, it is not to be doubted that their founding fathers wanted not only to gather European states together within a legal order built on interdependence so as to limit new surges in nationalism, but also to prevent the emergence of pan-European nationalism, which itself would be similarly dangerous for achieving durable peace. For this reason, Article 21 TEU states that ‘[t]he Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement’. The ‘European democratic formula’ may inspire other unions around the world and may help individuals to transcend borders and accept multilevel governance as a natural solution to multilayered issues in different societies, eventually paving the way towards cosmopolitan political entities.47 To do so, the formula builds on core common values and on the respect for the many coexisting cultural identities. 45 As shown by Brexit, reducing the risk does not mean eliminating the risk. 46 Einstein famously said: ‘Nationalism is an infantile disease. It is the measles of mankind.’ He referred to nationalism as members of a nation seeing outsiders as potentially inferior. While the quote is not among his writings and appears to have been released in an interview, it is nonetheless echoed in his ‘My Credo’ (1932), where we can read his position: ‘I have a high regard for the individual and an insuperable distaste for violence and fanaticism. All these motives have made me a passionate pacifist and antimilitarist. I am against any chauvinism, even in the guise of mere patriotism.’ 47 See A von Bogdandy, ‘The European Lesson for International Democracy: The Significance of Articles 9–12 EU Treaty for International Organizations’ (2012) 23(2) European Journal of International Law 315–34; J Habermas, The Crisis of the European Union: A Response (Cambridge, Polity Press, 2012) 66.

48  Susanna Cafaro European demoicracy has extensively benefited from the principle of nondiscrimination as a cornerstone of the system linking the EU’s many peoples and the common citizenship. Achieving this link necessitates not only the breaking down of obstacles, but also the building of bridges. Like with free circulation of goods, once the obstacles have been eliminated, the institutions must work on common standards and interoperability within the system. The same applies to democracy in the multipeople polity that is the EU: once the different forms of discrimination are removed, there is a need to promote the existing channels and spaces for participatory democracy to build a common public sphere. This requires the utilisation of the abovementioned tools – such as a uniform electoral procedure for the EP, European political parties and the European media – which would help to create a European public sphere. This would in turn be reflected in an increased sense of responsibility among citizens in their capacity as electors and taxpayers, and in citizens’ active participation in EU decision-making processes, whether through the ECI or other EU participatory tools. Failing that, European citizenship is bound to remain an unappealing political experiment without any embedding in the awareness and feelings of its peoples. The split between the many peoples and a single citizenship – between demoi and politeia – does not prevent the construction of a sense of commonality in the EU. With the demoi harbouring centrifugal forces, seen in the demands by nationalist political parties for greater independence from the Union in almost all Member States, the goal of an ‘ever closer union’ refers primarily to the building of a stronger politeia: more civic participation, more solidarity and a greater sense of belonging not only to a shared political and institutional system, but also to an all-encompassing legal space which ties together the legal orders of Member States to the European one through supranational institutions and transnational cooperation among national authorities and multilevel governance, where plural constitutional identities find their recognition.48 The goal of ‘an ever-closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen’ cannot be dismissed as mere rhetoric, since it appears four times in the Treaties: in the preambles to the TEU, the TFEU and the Charter, and in Article 1 TEU. This goal is yet to be realised. The references to the openness of decision-making and its closeness to citizens show how relevant the civic dimension is in this endeavour.

VII.  Concluding Remarks Europe lives the oxymoron of being a ‘Union’ with plural identities, which is a natural consequence of its history and a genetic element of its founding pacts. 48 See a deep analysis of the notion of European legal space and its being so much wider than EU legal order in A von Bogdandy, ‘European Law beyond “Ever Closer Union”: Repositioning the Concept, its Thrust and the ECJ’s Comparative Methodology’ (2016) 22(4) European Law Journal 519–38.

The European Politeia  49 The result is a politeia made up of demoi, as the Treaties clearly express. This plurality matches the policy formula of multilevel governance, composed of two levels of legitimacy outlined in Article 10 TEU, which are enriched by the regional and local dimensions referred to in Article 4 TEU and represented by the Committee of the Regions as foreseen in Article 13(4) TEU. Yet, one should not necessarily regret the lost vision of the EU’s founding fathers, who all spoke of the long-term goal of building the United States of Europe. A new vision, combining a civic community with cultural and institutional pluralism, is likely more fitting for the age of globalisation and interdependence.49 Citizens, if aware of their European rights of active citizenship, will be the main actors in the creation of the European public space. However, they need support by the institutions and by their own political representatives at all levels, to fill with meaning a politeia whose raison d’etre is in the dialectic relationship between institutions and citizens. To achieve this, citizens need to overcome the magnified, albeit not completely false, perception of technocracy, which is justified in some areas, such as monetary policy, but which in other areas can expose the inadequacy of EU politics. They also need to make effective use of all the participatory tools, whether those expressly provided for by the Treaties or those being devised outside the margins of the Treaties. For their part, national political elites would help to improve the EU’s cohesion by abandoning the noxious narrative of dissociation. The external constraint posed by the Union has far too often been used by national leaders to attribute blame for difficult political choices to the EU, as if these constraints are a product of much else other than their own actions. The latter is an irresponsible approach and a way of delegitimising unpopular decisions, which can fuel nationalism and Euroscepticism. As an Italian and European citizen, I was highly impressed when Mario Draghi, in his first and subsequent speeches in the Italian Parliament as the head of the Italian government (February 2021), replaced the usual ‘Europe has decided’ with ‘we in Europe have decided’: a small but significant step forward in recognising a common sense of belonging and participation in the European democratic space.

49 See D Innerarity, ‘Does Europe Need a Demos to Be Truly Democratic?’, LSE ‘Europe in Question’ Discussion Paper No 77, 1 July 2014.

50

3 Understanding the Unstable Frames of Citizen Participation in the EU The Field Effect, Public Sphere and Governance Functions LUIS BOUZA GARCÍA

I. Introduction The Lisbon Treaty introduced Article 11 of the Treaty on European Union (TEU) creating different mechanisms for the European Union (EU)’s interaction with citizens, civil society and representative associations, including the European Citizens’ Initiative (ECI), which enables one million European citizens to ask the European Commission to launch new legislation. This Treaty article was drafted by the Convention on the Future of Europe under the heading of participatory democracy, although this notion is not mentioned as such in the Lisbon Treaty because it was removed in the process of ridding the Treaty Establishing a Constitution for Europe of the constitutional regalia such as the common anthem, flag and currency. Whereas Article 11 TEU does not shine in terms of its conceptual clarity, it does reflect a policy of engagement with civil society at the EU level from the mid-1990s to the late 2000s. It institutionalises an agenda that combines expectations, first, that the engagement of interested constituencies contributes to EU output legitimacy by balancing different interests and channelling quality information into the policy-making process; and, second, that neo-pluralist procedural rules1 and online consultation tools can enhance direct input from civil society organisations (CSOs) and large constituencies of individual citizens. However, the diversity of references to civil society, stakeholders and citizens in Article 11 TEU reveals that, beyond the apparent 20-year continuity in the openness of EU 1 S Smismans, ‘European Civil Society: Shaped by Discourses and Institutional Interests’ (2003) 9(4) European Law Journal 473.

52  Luis Bouza García policy making to society, a series of struggles for defining the legitimate players and goals of engagement were under way. Indeed, Article 11 TEU was promoted by a coalition of CSOs seeking to establish a ‘civil dialogue’ on EU policies between European CSOs and EU institutions, whereas, in the aforementioned process of institutionalisation, the Commission instead focused on the tools addressing larger constituencies without introducing new tools for Brussels-based organisations. The best evidence of these changing frames of democratic governance is the adoption of new tools of citizen engagement in the Conference on the Future of Europe (CoFoE), such as citizens’ panels and assemblies.2 Existing assessments of the effects of EU participatory tools are mixed. On the one hand, a decade of assessments of the opening up of the EU agenda via online tools shows a strong variance in the range of actors involved, depending on the method of consultation chosen.3 While open online consultations show a higher degree of actor diversity,4 they have been prone to territorial imbalances5 and do not of themselves prevent the domination of stronger interests.6 On the other hand, evaluations of the contribution of participation to direct legitimacy are also very nuanced. Sceptical approaches emphasise over-reliance on a transnational civil society that is strongly disconnected from grassroots processes,7 while optimistic approaches highlight the ability of well-organised transnational groups8 to act as transmission belts.9 Others consider that the most significant effect of these participatory arrangements is the introduction of participatory democracy as a principle to be further elaborated by practice and experimentation.10 However, the aim of this chapter is neither to assess the rebalancing of the original objectives of Article 11 TEU nor to reconceptualise what European civil society is. Instead, it analyses the different conceptions of how organised citizen participation contributes to the shaping of EU democracy and of how the institutionalisation of civil society participation contributes to legitimacy. It does so by discussing how different theoretical approaches conceive the functions that

2 See more on the Conference on the Future of Europe in ch 8 by Maaike Geuens in this volume. 3 B Fraussen et al, ‘Conceptualizing Consultation Approaches: Identifying Combinations of Consultation Tools and Analyzing Their Implications for Stakeholder Diversity’ (2020) 53 Policy Sciences 473. 4 AS Binderkrantz et al, ‘Countering Bias? The EU Commission’s Consultation with Interest Groups’ (2021) 28 Journal of European Public Policy 469. 5 C Quittkat, ‘The European Commission’s Online Consultations: A Success Story?’ (2011) 43 Journal of Common Market Studies 653. 6 Fraussen et al (n 3). 7 B Kohler-Koch and C Quittkat, De-mystification of Participatory Democracy: EU Governance and Civil Society (Oxford, Oxford University Press, 2013); A Kutay, NGOs, Civil Society and Structural Changes (Cham, Palgrave Macmillan, 2021). 8 A Albareda and C Braun, ‘Organizing Transmission Belts: The Effect of Organizational Design on Interest Group Access to EU Policy‐Making’ (2019) 57(3) Journal of Common Market Studies 468. 9 J Steffek and K Hahn (eds), Evaluating Transnational NGOs: Legitimacy, Accountability, Representation (Basingstoke, Palgrave Macmillan, 2010). 10 A Alemanno and J Organ (eds), Citizen Participation in Democratic Europe: What Next for the EU? (Colchester, ECPR Press/Lanham, MD, Rowman & Littlefield, 2021).

Understanding the Unstable Frames of Citizen Participation in the EU  53 civil society plays in the EU through the opportunities of institutionalised participation. Most discussions of EU participatory mechanisms tend to focus on the institutional dimensions of participation, such as procedural rights, efficacy and the balance of interests.11 However, these institutional approaches tend to overlook what political and social actors see as the main goal of their involvement in participatory opportunities and what they use them for. This chapter analyses these transformations by combining three theoretical perspectives which are rooted in political sociology and, more specifically, in the sociological approach to the role of civil society in the EU. These are the field theories in the Bourdieu tradition, Foucault-inspired governmentality approaches and Habermasian public sphere conceptions of civil society. These approaches are selected because of their particular relevance for assessing the contribution of civil society to the aggregation of interests in a democratic process. While the field approaches show that the functions of civil society are strongly influenced by their structural relations to institutions and other organisations,12 the governmentality approaches view the legitimacy of civil society from the perspective of their ability to redefine the boundaries of the neoliberal commodification of political and social processes,13 and the public sphere approaches stress the importance of critical discussion of the EU in the public spheres.14 Since the political sociology of European civil society is a relatively under-researched field,15 this chapter builds on it by explaining civil society’s struggles for shared meaning and access, and by discussing how this relates to the above-mentioned institutional approaches. This is done notwithstanding the important differences between the three approaches regarding the main functions of civil society in the EU and the different ways in which they evaluate their contribution to legitimacy. This chapter argues that the existing participatory arrangements are the result of different and potentially contradictory streams of change that combine to transform EU institutions’ interactions with civil society, albeit within the same 11 Fraussen et al (n 3); Albareda and Braun (n 8); A Bunea, ‘Designing Stakeholder Consultations: Reinforcing or Alleviating Bias in the European Union System of Governance?’ (2017) 56 European Journal of Political Research 46; A Alemanno, ‘Levelling the EU Participatory Playing Field: A Legal and Policy Analysis of the Commission’s Public Consultations in Light of the Principle of Political Equality’ (2020) 26 European Law Journal 114. 12 N Kauppi and H-J Trenz, ‘(De)Politicisation: Shifting Dynamics in an Emerging European Political Field and Public Sphere’ in C Wiesner (ed), Rethinking Politicisation in Politics, Sociology and International Relations (Cham, Palgrave Macmillan, 2021) 153. 13 L Lo Schiavo, ‘Governance, Civil Society, Governmentality. The “Foucauldian Moment” in the Globalization Debate: Theoretical Perspectives’ (2014) 4 International Journal of Humanities and Social Science 181; A Kutay, Governance and European Civil Society: Governmentality, Discourse and NGOs (Abingdon, Routledge, 2014). 14 Steffek and Hahn (n 9); S Guerra, ‘Eurosceptic Voices: Beyond Party Systems, across Civil Society’ in M Caiani and S Guerra (eds), Euroscepticism, Democracy and the Media (London, Palgrave Macmillan, 2017) 21. 15 See the exceptions in Kutay (n 13); S Kalm and H Johansson (eds), EU Civil Society: Patterns of Cooperation, Competition and Conflict (Basingstoke, Palgrave Macmillan, 2015); J Lindellee and R Scaramuzzino, ‘Can EU Civil Society Elites Burst the Brussels Bubble? Civil Society Leaders’ Career Trajectories’ (2020) 8 Politics and Governance 86.

54  Luis Bouza García discourse of participation. In this sense, civil society activism and EU institutions’ changing bureaucratic practices, goals and public discourses on legitimacy and civil society have all exerted different pressures at different times to configure the current regime of civil society consultation and participation. Against this background, the chapter develops the argument as follows. The next section (section II) analyses transformations in the forms of citizen participation in EU democratic governance as transformations in the opportunity structures for CSOs. Opportunity structures created by EU-level participatory mechanisms create a clear division in civil society: between Brussels insiders, composed mostly of EU umbrella CSOs, and outsiders, composed of social movement organisations and national groups interested in EU affairs.16 The chapter then analyses the struggles for meaning and access through the lenses of the three aforementioned sociological approaches: the field, governmentality and public sphere approaches (section III). The chapter concludes (section IV) that, despite constant references to civil society and participation since the early 2000s, there has been a process of transformation of the normative goals of participation, with notable effects on the opportunities for civil society to participate in policy processes.

II.  The Changing Structures of Opportunity for Civil Society in the EU Article 11 TEU was promoted by a coalition of leading citizens’ interest groups in the fields of social rights, environmental issues and international cooperation with the expectation that the recognition of the principle of consultation in Article 11(2)–(3) TEU would grant them secure access to EU institutions.17 They did so hoping to unify consultation practices across different Directorates-General of the Commission and other EU institutions, and to secure access for themselves, while making it harder for outsiders to do the same. However, the Lisbon Treaty has not succeeded in turning civil dialogue participation into a substantive citizens’ right.18 Although the inclusion of an article on participatory tools in the Treaty could be seen as a success for the aforementioned coalition, the EU has subsequently placed greater emphasis on pluralistic forms of interaction, targeting large publics and stakeholders – such as open consultations, transparency measures and citizens’ initiatives – rather than organised civil society.

16 A Oleart and L Bouza García, ‘Democracy at Stake: Multipositional Actors and Politicization in the EU Civil Society Field’ (2018) 56 Journal of Common Market Studies 870; D della Porta and L Parks, ‘Social Movements, the European Crisis, and EU Political Opportunities’ (2018) 16 Comparative European Politics 85; Bunea (n 11). 17 L Bouza García, Participatory Democracy and Civil Society in the EU Agenda-Setting and Institutionalisation (Basingstoke, Palgrave Macmillan, 2015). 18 V Cuesta López, ‘The Lisbon Treaty’s Provisions on Democratic Principles: A Legal Framework for Participatory Democracy’ (2010) 16(1) European Public Law 123, 138; Alemanno (n 11).

Understanding the Unstable Frames of Citizen Participation in the EU  55

A.  Civil Society Dialogue from Accreditation to Openness: Communication, Transparency and Better Law-Making Despite the recognition of civil society dialogue in the Treaty, mechanisms for dialogue with civil society have not been unified. Instead, the EU has created new mechanisms for citizen participation in the policy process. Consultation mechanisms with civil society are regulated by the consultation standards of 2002,19 the transparency reforms of 2006, 2011 and 2017, and, since 2006, increasingly through better regulation principles, reorienting consultation away from narrow discussions with selected CSOs towards open online consultations addressed to both organised stakeholders and individuals. Furthermore, since the early 2010s, the EU has organised public deliberation with individual citizens through panels and assemblies within the Europe for Citizens Programme, through national debates on the Future of Europe, and through activities within the CoFoE. Making participation more open was a salient issue in the making of EU transparency initiatives. In recent years, the Commission has challenged corporatist tendencies through the increased use of open online consultations.20 Different driving forces have been involved in this process of disintermediation of participation. First, the Commission attempted to reach interested citizens directly in the wake of the difficulties of many European CSOs to act as ‘transmission belts’ of their members and tried to turn participation venues into opportunities for communication. Second, there has been a shift from focused consultation towards an open model aimed at achieving better regulation, transparency and greater deliberation on EU policy-making21 by attracting outsider actors that are usually not involved in exclusive civil dialogues.22 The European Transparency Initiative was the decisive moment in the Commission’s move away from the corporatist aspect of the previous consultation standards. Following the White Paper on Governance, the Commission explored the idea of adopting advanced partnerships with some organisations and, until 2006, it operated consultations using the CONECCS database which ‘restricted entry to those groups which could meet criteria of geographic representativeness, and in particular members in at least three member/candidate states’.23 The main characteristic of the transparency register is that it removed references to representativeness24 that characterised the previous approach,

19 European Commission, ‘Towards a Reinforced Culture of Consultation and Dialogue – General Principles and Minimum Standards for Consultation of Interested Parties by the Commission’ COM (2002) 704, 11 December 2002. 20 Binderkrantz et al (n 4); Fraussen et al (n 3). 21 J Greenwood, Interest Representation in the European Union (London, Palgrave Macmillan, 2017). 22 Binderkrantz et al (n 4). 23 Greenwood (n 21) 212. 24 Understood as an ability to speak for a meaningful constituency through an explicit mandate.

56  Luis Bouza García favouring what some authors see as a ‘laissez-faire’ system that does not guarantee ‘equal inclusion and responsiveness in order to strive for fair and equal justification processes among all concerns’.25 The Commission stresses that all interests can be involved in a system without access barriers.26 However, this does not ensure a balance of influence opportunities. This is not only because online consultation processes were imbalanced in favour of business groups and interests from Northern Europe when they were launched,27 but also because business interests still dominate online fora in comparison with focused consultations.28 The Commission’s move towards an open system can also be explained by its concerns about its own legitimacy, because it itself underlines that ‘[t]he Commission will avoid consultation processes which could give the impression that “Brussels is only talking to Brussels”’.29 The better law-making package and transparency initiatives consolidate the move away from semi-corporatist arrangements based on de facto accreditation systems towards the increased use of open consultation and the abandonment of the principle of organisational representativeness.30 This has favoured a neopluralist approach, which has to some extent marginalised the original movers of Article 11 TEU. This new approach decreases the emphasis on civil society’s contribution to input legitimacy and increases the emphasis on the creation of a transparent regulatory environment carried out in the first years of the Barroso Commission (2004–06).31 The 2005 Green Paper on the European Transparency Initiative reframes consultation in the context of increasing output legitimacy: Wide consultation allows involvement of interested parties in the policy-shaping process. It is an essential tool for improving the quality of the Commission’s legislative proposals. The Commission’s minimum standards form a key part of the Better Lawmaking action plan, the primary objective of which is to improve the quality of the EU legislation. (Emphasis in original)32

This confirms the adoption of a neo-pluralist model that does not assume that some CSOs have specific legitimacy which they can transfer to the EU, as the transmission-belt theory previously assumed.33 Instead, consultations with civil society and business and impact assessment began being conceived as a means of

25 D Friedrich, Democratic Participation and Civil Society in the European Union (Manchester, Manchester University Press, 2011) 93. 26 N Pérez-Solórzano Borragán and S Smismans, ‘Representativeness: A Tool to Structure Interest Intermediation in the European Union?’ (2012) 50 Journal of Common Market Studies 403, 418. 27 Quittkat (n 5). 28 Fraussen et al (n 3). 29 European Commission (n 19). 30 Pérez-Solórzano Borragán and Smismans (n 26). 31 M Cini, ‘European Commission Reform and the Origins of the European Transparency Initiative’ (2008) 15 Journal of European Public Policy 743, 750. 32 European Commission, ‘Green Paper: European Transparency Initiative’ COM (2006) 194, 3 May 2006, 11. 33 Steffek and Hahn (n 9).

Understanding the Unstable Frames of Citizen Participation in the EU  57 creating a level playing field for interest representation that can contribute to better policy outcomes: [A] reinforced application will focus, in particular on providing better feedback, a more coordinated approach to consultation and the need for ensuring plurality of views and interests expressed in consultations. This approach will help improve the quality of the Commission’s impact assessments, thereby contributing to the implementation of the Commission’s ‘better regulation’ policy. 34

The rationale of the new strategy is that all those affected by a decision must be allowed to have a voice, but that their contribution is not to the legitimacy of the policy-making process, but to achieving a discussion that considers the issue in a more complex way. Greenwood pointed out the deliberative overtones of the code of conduct included in the transparency register by which organisations commit themselves to contributing to policy discussions by providing accurate data.35 This review suggests that the implementation of the agenda on civil dialogue with the very organisations that have promoted the institutionalisation of participation before and during the Convention has failed.36 The EU recognised this by adopting a non-binding document setting minimal standards for consultation,37 and a Treaty article that has not recognised exclusive dialogue with CSOs representing citizens’ interests. The policy initiatives adopted since the Lisbon Treaty have thus moved away from the agenda on civil dialogue towards a regime of open consultation which seeks to create a level playing field where all interests can be heard subject to the procedural rules on transparency. Importantly, this de facto change in the agenda, albeit with a stable discursive reference to participation, implies a redistribution of participatory opportunities. This has made it easier for stakeholders and individual citizens who are not involved in CSOs to have a chance to express their views on EU policies, while denying privileged access to existing Brussels insiders. Whether this has made some of these insiders change their strategy by mobilising these citizens that the EU intends to empower is analysed in the next sub-section.

B.  The Effects of Implementing the ECI The other relevant evolution is the adoption of the Regulation on the ECI in February 2011 and its entry into force in June 2012. The idea of a mechanism allowing citizens to invite legislative action at the EU level was brought to the

34 European Commission, ‘Communication from the Commission: Follow-up to the Green Paper “European Transparency Initiative”’ COM (2007) 127, 21 March 2007, 6–7. 35 Greenwood (n 21) 226. 36 Among the most active organisations were the Social Platform (social policies), Green 10 (environment) and Concord (international cooperation). 37 European Commission (n 19).

58  Luis Bouza García Convention by a coalition of European organisations led by the Institute for Referenda and Initiative (IRI) Europe and Mehr Demokratie,38 whereas the abovementioned sector-leading CSOs which promoted civil dialogue before and during the campaign did not take part in this initiative. The Commission’s rapid action on the ECI following the entry into force of the Lisbon Treaty in November 2009 merits attention. On the one hand, it means that five years after the Convention, EU institutions still assumed that participation mechanisms were a viable strategy for creating links with citizens. This confirms the stability of the strategy of using participatory tools as a strategy for EU legitimisation. On the other hand, it also confirms that that EU priorities concerning the organisation of participatory democracy have changed. Whereas the Commission took no new initiatives to improve dialogue with CSOs, one of the first actions it took under the new Treaty was to publish a Green Paper on the ECI.39 The main reason behind this may be the fact that the ECI has a potential to empower citizens directly, whereas dialogue with European CSOs hardly reaches beyond Brussels. However, the view that the ECI represents a radical shift from interaction with organised civil society to the direct empowerment of individual citizens is misleading. The ECI requires the collection of signatures of one million individuals, and in all systems where similar mechanisms exist – such as Switzerland and California – the success of these agenda-setting tools requires action by strong organisations to organise the signature campaign and, more importantly, to subsequently engage in legislative and regulatory lobbying. While Article 11(4) TEU does not mention the promoters of ECIs, the ECI Regulation does not recognise legal persons as valid organisers in an attempt to avoid the ECI being ‘hijacked by lobbies’. However, in comparable national regulations, legal persons are indeed seen as important actors in following up on the policy process that may result from an initiative.40 Yet, this has not prevented major CSOs, such as the European Trade Union Confederation or Greenpeace, from providing organisation and funding to successful campaigns. Even though the ECI does not directly relate to the Commission’s neo-pluralist agenda, it reinforces the dynamics of greater access to the EU agenda for CSOs which are less present in Brussels. A successful ECI requires promoters to reach at least one million supporters and cooperate with national CSOs in order to reach more citizens. Indeed, almost all ECIs that have reached the one millionsignature threshold have resulted from cooperation between pan-European promoters and one-country movements or organisations.41 Likewise, this has led 38 J de Clerck Sachsse, ‘Civil Society and Democracy in the EU: The Paradox of the European Citizens’ Initiative’ (2012) 13 Perspectives on European Politics and Society 299. 39 European Commission, ‘Green Paper on a European Citizens’ Initiative’ COM (2009) 622, 11 November 2009. 40 Cuesta López (n 18). 41 The ‘Water and Sanitation are a Human Right!’ ECI was promoted by extensive European civil society, such as the European Environment Bureau, the European Trade Union Confederation and the Social Platform in close cooperation with German public service trade unions. The ‘Stop Vivisection’ ECI was strongly supported in Italy, whereas the ‘One of Us’ ECI was supported by emerging

Understanding the Unstable Frames of Citizen Participation in the EU  59 national CSOs to cooperate with other national and European organisations in order to try to ‘upload’ their own policy preferences and create pan-European networks. This also implies that the ECI increases competition between CSOs trying to access the EU, whereby they use the ECI to challenge incumbent groups and establish their own positions and claims.42 As a lobbying tool for outsiders, the ECI is mainly used by those who have inside access to policy-makers, but who challenge the existing forms of interaction with civil society, or by those who use it as a means of external influence and follow up on the signature campaign.43 The ECIs on the right to water and against glyphosate are good examples of this: they were promoted by two important transnational civil society networks (trade unions and Greenpeace) which have continued their campaign through inside lobbying long after the Commission responded to the ECI.44 The successive reforms of the ECI Regulation, as demonstrated in Chapters 11 and 12 in this volume, did not change the nature of the instrument. They have made the ECI more ‘user-friendly’, simplifying the process by further enhancing digital signature collection and improving the Commission’s support to promoters through translation and legal advice. However, some legal analyses suggest that the EU has reached the limit of using institutional reforms to revise the ECI and that any future lack of success of this tool must no longer be attributed to the lack of user-friendliness, but rather to its constitutional limitations45 and the obstacles of civil society action in the problematic European public sphere.46

III.  Why Do Changes in Participation Opportunities Matter? There is a consensus that opportunities for participation in EU policy-making are created by EU institutions to try and improve the Union’s legitimacy.47 The Commission started the practice of dialogue with external parties and supported CSO dialogue, the Convention included this principle in the Treaty, and the CoFoE

pan-EU anti-abortion networks and the Catholic Church. See an extended analysis of this national– transnational link in M Weisskircher, ‘The European Citizens’ Initiative: Mobilization Strategies and Consequences’ (2020) 68 Political Studies 797; Oleart and Bouza García (n 16); L Bouza García and J Greenwood, ‘The European Citizens’ Initiative: A New Sphere of EU Politics?’ (2014) 3 Interest Groups & Advocacy 246. 42 Oleart and Bouza García (n 16). 43 ibid. 44 E Longo, ‘The European Citizens’ Initiative: Too Much Democracy for EU Polity?’ (2019) 20 German Law Journal 181, 198. 45 See ibid on the Commission’s monopoly of legislative initiative. 46 A Parol, ‘The European Citizens’ Initiative Reform: Does it Matter?’ (2020) 40 Review of European and Comparative Law 67. 47 S Saurugger, ‘The Social Construction of the Participatory Turn: The Emergence of a Norm in the European Union’ (2010) 49 European Journal of Political Research 471.

60  Luis Bouza García created citizens’ panels and assemblies. However, this is not done in a vacuum: the very act of defining a tool for participation is a form of defining a relationship with society. Each variation in participatory tools transforms the relationship between institutions and European societies by empowering some actors and sidelining others. Participatory tools are therefore also discourses48 that depict how EU institutions conceive of their relationship with European societies. This relational approach requires analysing the society side of participation and this should be done from the perspective of the goals that civil society seeks to achieve from this relationship as a pre-requisite to understanding the latter’s ability to contribute to legitimacy. The mere existence of participatory opportunities does not mean that civil society uses them. Participating in consultations, ECIs or citizen assemblies carries different costs for civil society in terms of resources (staff time), internal political tensions (disagreement among members), external frictions (disagreement with funders and other civil society groups) and reputation exposure (being associated with legislation that they disagree with). Thus, the involvement of CSOs must be understood as an exchange. From the point of view of legitimacy, there are different conceptions of how the interaction between CSOs and EU institutions creates legitimacy. Procedural conceptions emphasise that the guiding principle is openness and that opportunities for participation are open to all actors under the same circumstances. This implies that all concerned parties have opportunities to be involved and, if they do, the policy process is more transparent, better balanced and open to legitimate influence. However, relational approaches focus on how participation articulates legitimation relationships between the EU and different social groups.49

A.  The Field of European Civil Society Participation By promoting open online consultations and the ECI instead of exclusive civil dialogue, the EU seems to disempower the Brussels-based insider CSOs that shaped the policy of consultation in the early 2000s in favour of outsider CSOs and individual citizens. This conflicts with the fact that these same insider CSOs remain the main recipients of funding from EU institutions.50 They also retain a claim of access to EU policy-making as legitimate representatives of civil society in Brussels, for which reason most of them have engaged in a new platform called Civil Society Europe. Therefore, even if these CSOs were only partially successful in institutionalising exclusive access to the EU, they remain insiders among the organisations claiming to speak for civil society in Brussels. 48 Kutay (n 7) 183. 49 Kauppi and Trenz (n 12) 164. 50 Civil Society Europe: The European Coordination of Civil Society Organisations, ‘Fact Sheet on NGO Funding by the EU’ (2020), https://civilsocietyeurope.eu/wp-content/uploads/2020/01/CSE-FactSheet-on-NGO-funding-by-the-EU.pdf.

Understanding the Unstable Frames of Citizen Participation in the EU  61 Field theory approaches define a field as a well-defined area of social life in which actors come to share basic assumptions about what is at stake in their interactions. In order to conceptualise the struggle over mechanisms of participation, we follow Neil Fligstein’s and Doug McAdam’s understanding of social fields as institutionalised rules for participation and competition over the stakes of the field.51 Such rules shape the competition over the objects of struggle and although they do not always need to be sanctioned by external or public actors, the recognition by the state (or in this case the EU) is usually the moment when a field is stabilised in the sense that rules of contention and the identity of participants become recognisable and regular. The object of competition is then to define the rules on access for third parties (including but not limited to CSOs) to EU policy-makers.52 What can this approach contribute to the discussion of legitimacy? In principle, field theorists take no position on this question, since field structures and actors’ positions are seen as a matter of power distribution. However, struggles in social fields are also struggles about social status.53 Such status is in fact constantly open to contestation because of the lack of a settled answer in the debate on legitimate government in the EU, which ensures a ‘constant struggle … to delimit and define European politics, its legitimate attributes, processes, and players’.54 In other words, in the EU every struggle for power and status requires a definition of legitimacy, and every struggle over legitimate forms of participation involves a challenge to existing status positions. As a result of the link between status and legitimacy, the contribution of insider and outsider organisations to legitimacy will result from their structural position in the field, and both of these kinds of organisations can contribute different forms of legitimacy to the EU. However, from the perspective of the establishment of diverse coalitions and the reaching of compromise between different types of interests, the link between status and access would appear more problematic, since in an established field, there would be relatively little contact between insiders and outsiders. In particular, from the perspective of field theorists, it seems that insider organisations – the members of Civil Society Europe – tend to interact with each other and are thus more prone to consensus. On the other hand, the organisations using the ECI or other forms of more politicised campaigning are likely to find themselves in positions of lesser influence and with greater difficulties in terms of accessing EU institutions and insider organisations. Although they may create relatively large coalitions, such as that which led the ‘Stop TTIP’ ECI, they often interact with other outsider organisations – usually national groups interested in EU affairs or EU transnational organisations – and thus do not have opportunities to regularly exchange 51 N Fligstein and D McAdam, A Theory of Fields (Oxford, Oxford University Press, 2012) 88–89. 52 See an extended discussion of the stakes of cooperation and competition in the field of European civil society in Kalm and Johansson (n 15). 53 Kauppi and Trenz (n 12) 162. 54 ibid 172.

62  Luis Bouza García views or strike compromises. The relatively high costs of insider lobbying strategies in Brussels and the ECI’s weak agenda impact may be turning outsider groups towards using the existing opportunities for protest politics, where they have more incentives to adopt uncompromising positions than to search for compromise.

B.  Opportunities for Civil Society Participation as a Form of Governmentality Inspired by the work of Foucault on biopolitics, governmentality approaches have sprung up in the international relations literature in order to conceptualise the effect of governing without the existence of an agreed sovereign power.55 These approaches build on Foucault’s understanding of liberalism as a form of managing society via the market, and consequently understand neoliberalism not as a simple rebalancing of the market functions at the expense of the state, but rather as a project putting the state at the service of a radical redefinition of the boundaries of the state, the market and society. Civil society plays an ambiguous role in the governmentality approaches. On the one hand, it has the potential to bring ‘politics’ back in, where processes of politicisation are understood as ways to challenge the commodification of social and political processes.56 On the other hand, it contributes to the processes of making the ‘rationality of governance conceivable and the global political space governable’.57 Governmentality authors criticise cosmopolitan theorists by pointing out that global or transnational civil society lacks the spontaneity and grassroots connections that are required to challenge the depoliticisation processes mentioned above,58 and that most of those claiming to speak for civil society in transnational arenas are actually the offsprings of the governmentality networks and spaces rather than those able to oppose them. As such, the critics of global civil society hence argue that non-governmental organisations (NGOs) reinforce the governmentality logics in three ways: by contributing to the depoliticisation of governance; by portraying themselves as experts in a subject or as empowered representatives59 rather than as activists of a cause; and by emphasising their ability to work within the spaces provided by international institutions.60

55 W Larner and W Walters (eds), Global Governmentality: Governing International Spaces (London, Routledge, 2004). 56 Lo Schiavo (n 13) 193–94. 57 ibid 191. 58 Kutay (n 7) 199–202. 59 ibid. 60 R Lipschutz, ‘Global Civil Society and Global Governmentality: Or, the Search for Politics and the State amidst the Capillaries of Social Power’ in M Barnett and R Duvall (eds), Power in Global Governance (Cambridge, Cambridge University Press, 2005) 229.

Understanding the Unstable Frames of Citizen Participation in the EU  63 The governmentality approaches are in some respects applicable to the EU, especially when it comes to EU governance via indicators and knowledge,61 and the reorientation of social policies towards the inclusion of excluded citizens and communities in the market.62 However, little attention has been given to the relevance of governmentality approaches to EU participatory practices.63 However, these approaches could fruitfully be used to conceptualise a common stream of criticism of EU participatory mechanisms. While several authors point out that European civil society is becoming increasingly professionalised,64 others conceive civil society’s representativeness in terms of its ability to stand for causes65 rather than in terms of its ability to channel the voices of their constituencies. More recent findings suggest that good and professional internal organisation is necessary in order for NGOs to be able to act as transmission belts.66 As a result, their main form of collective action at the EU level consists of participation in specialised governance fora as specialists able to provide expert data and analyses67 rather than as activists contributing to the critical discussion of the policy objectives concerned and opposing their depoliticisation. Thus, at first sight, the governmentality approaches could serve to conceptualise the insider-outsider cleavage in civil society participation. In this sense, organisations involved in civil dialogue cannot fulfil any other function than to contribute to the governmentalisation of the EU, whereas those intending to oppose governmentalisation will be those able to politicise the EU. The latter tend to be outsider organisations since, as discussed above, the register of insider organisations and their institutional opportunities make it difficult to ‘bring politics back in’. However, it is highly unlikely that outsider groups can achieve the politicisation of the EU by using the existing participatory opportunities. The tools that outsider organisations can use more effectively – including the ECI and online consultations – provide limited opportunities to produce the kind of constitutive contestation expected by governmentality theorists.68 The critics of governmentality indeed hold that, beyond the claim that the EU needs to become a public sphere, it is only through critical discussion of the processes of depoliticisation, technification and marketisation that such a public sphere can fulfil the functions

61 M Åkerman et al, ‘The Power of Indicators in Making European States Governable in the Europe 2020 Strategy’ in R Heiskala and J Aro (eds), Policy Design in the European Union: An Empire of Shopkeepers in the Making? (Cham, Palgrave Macmillan, 2018) 111. 62 R Dale, ‘Forms of Governance, Governmentality and the EU’s Open Method of Coordination’ in Larner and Walters (n 55) 174. 63 Kutay (n 7). 64 F Heylen et al, ‘Do Professionals Take Over? Professionalisation and Membership Influence in Civil Society Organisations’ (2020) 31 Voluntas 1226. 65 V Buth, ‘Speak to Me Only with Thine Ayes? The Representativeness of Professional EU Advocacy Groups’ (PhD dissertation, University of East Anglia, 2012). 66 Albareda and Braun (n 8). 67 Kutay (n 7) 139–40. 68 Lipschutz (n 60).

64  Luis Bouza García of a civil society if it is to avoid being an extension of the institutional governmentality processes.69 Since the increasing politicisation of EU affairs is happening mostly at the national level, the opportunities for debate and participation are essentially a function of national public debates on the EU. From this perspective, governmentality approaches carry little potential for enhancing EU legitimacy if civil society is prone to bargaining and expertisebased negotiation. Instead, governmentality critics see insider CSO involvement in participatory mechanisms as a way to colonise civil society’s ability to challenge and re-articulate politics through the pursuit of institutional and bureaucratic objectives.70 However, governmentality critics of CSO involvement71 in transnational governance also see the potential for the emergence of a genuine grassroots civil society through the contestation of EU policies across public spaces. This does not necessarily make this criticism a Eurosceptic one, but it tends to see the lack of genuine expressions of societal debate on EU integration as a problem for legitimacy.

C.  European Civil Society and the Public Sphere One of the most significant developments in the research on civil society and the European public sphere is the politicisation of public discussions of the EU, which is understood as giving rise to increased polarisation, increased number of actors involved in the discussion, and increased political salience of these discussions.72 Civil society has not been alien to this process. On the one hand, as suggested in the previous section, civil society actors not usually involved in EU consultation mechanisms – social movement organisations, national CSOs and transnational cause entrepreneurs – have been among the main actors of the processes of contestation of European politics. On the other hand, as argued in this section, processes of politicisation and contestation happening outside of the official consultation mechanisms have enabled participants in these processes to reach out to larger constituencies. This has resulted in a competition for attention or a ‘“politics of politicisation” [that] fuse[s] together status politics and attention politics’.73 In other words, the ability to draw public attention to EU policy processes is now rewarded with political influence more than when participatory democracy was recognised. This is why among the competing conceptions of civil society, the notion of a civil society rooted in a public sphere, owing to its inclusiveness and teleological

69 Lo Schiavo (n 13) 191. 70 Lipschutz (n 60). 71 Kutay (n 13); Lo Schiavo (n 13); Lipschutz (n 60). 72 P de Wilde et al, ‘Introduction: The Differentiated Politicisation of European Governance’ (2016) 39(1) West European Politics 3. 73 Kauppi and Trenz (n 12) 163.

Understanding the Unstable Frames of Citizen Participation in the EU  65 orientation, seems to have prevailed at the EU level74 both in the academic and policy-making fields. Civil society in the EU is thus defined by its ability to contribute to public deliberation rather than by its ability to represent members or substantively contribute to the policy-making process.75 The question is to what extent did an increasingly politicised European public sphere relate to the processes of opening up of participatory mechanisms to larger constituencies discussed so far. Whereas the Commission expected civil dialogue in the early 2000s to contribute to the development of a European public sphere,76 this has been progressively replaced by direct citizen involvement in EU governance or by opportunities for citizens to directly respond to online consultations. However, the neo-pluralist scheme places strong expectations on two particular elements of transnational communication: the first is that the transparency register relies on an active public in order to succeed in overseeing interest group activity; and the second is that the ECI enables organisations capable of mobilising a segmented European public to put an issue on the EU agenda. This contrasts with the approach of organisations with insider access, such as the main organisations dealing with social policy issues or social partners who can employ direct lobbying tactics. ECI promoters compete in the same field as civil dialogue participants: their initiatives address a range of traditional civil society issues – in particular, environment protection, liberties and justice77 – and they bring new outsider, semiperipheral78 and national actors79 into the policy fields concerned. This means that ECI promoters often compete with other organisations for the Commission’s attention. The Commission is thus faced with the dilemma of listening to the demands of the promoters of a successful ECI or to other, potentially more representative incumbents in the policy area. As ECIs become more contentious in their subject matter,80 the Commission will face dilemmas that pit ECI promoters – for instance, those leading on the ‘One of Us’ initiative on the legal protection of foetuses – against the more institutionalised participants in the dialogue with the EU, such as religious organisations. The dilemma between institutionalisation and impact on the public spheres is emphasised by the manner in which the ECI is used. Notably, the ECI has tended to be used by organisations which have so far not become involved in EU

74 B Kohler-Koch and C Quittkat, ‘What is Civil Society and Who Represents Civil Society in the EU? Results of an Online Survey among Civil Society Experts’ (2009) 28 Policy and Society 11, 15. 75 See a discussion of what professional organisations require to convey their members’ demands in Albareda and Braun (n 8). 76 European Commission, ‘The Commission’s Contribution to the Period of Reflection and beyond: Plan D for Democracy, Dialogue and Debate’ COM (2005) 494, 13 October 2005. 77 Oleart and Bouza García (n 16). 78 ibid. 79 Weisskircher (n 41). 80 Parol (n 46).

66  Luis Bouza García consultation processes, but which have an interest in European politics and an ability to mobilise citizens.81 An important reason why the ECI is attractive to these organisations is that it allows them to proactively engage in agenda setting by putting forward their own proposals and policy frameworks, without needing to participate in Commission-driven consultations. This is particularly relevant for those organisations that prefer not to participate in the consultation processes because they are critical of the EU, the contents of a policy proposal or the proposal’s framing. Previous research has systematically suggested that, in the first decade of the ECI’s existence, organisations critical of EU developments have used this tool to bring contentious issues to EU politics.82 Therefore, while the potential of the ECI as a tool of involvement in EU politics is diminished by its institutional weakness, it is by contrast acquiring significance as a tool for establishing coalitions and mobilising grassroots civil society through opposition to insiders. This function is significant when one considers the implications for the ability of civil society to foster compromises and build coalitions beyond a single constituency. Unlike what the governmentality literature ignores and what the field approach considers as a domination phenomenon, recent research on new protest movements and other cultural war phenomena are combining signs of their outsider nature in Brussels with a degree of empowerment resulting from their ability to generate contestation and dissent.83 The institutional weaknesses of the ECI and of protest politics in terms of their influence over EU agenda setting do not preclude the fact that their use is increasingly relevant at the EU level. Their relevance is reflected both in the increased concern of EU institutions to gather the public’s evaluation of their work and in the increased politicisation of the EU. This means that although the ability of organisations to mobilise the public does not necessarily make them more influential in Brussels, their efforts to do so are increasingly rewarded through increased ­visibility and influence in the broader civil society field.

IV.  Conclusion: Beyond Insiders and Outsiders This chapter has shown that behind the apparently constant reference to participatory democracy by EU institutions as the rationale for citizens’ input in policy-making since the early 2000s, there has been a constant process of reorientation of the normative goals of participation, with notable effects on the opportunities for civil society. These transformations in goals and opportunities cannot be explained without reference to the social struggle for access to EU

81 This is well illustrated by the ‘Stop TTIP’ campaign: most of its promoters had not been involved in EU politics, but were able to obtain a large number of signatures. 82 Bouza García and Greenwood (n 41); Oleart and Bouza García (n 16); Parol (n 46). 83 Oleart and Bouza García (n 16); della Porta and Parks (n 16).

Understanding the Unstable Frames of Citizen Participation in the EU  67 policy-making and for the recognition of different abilities such as expertise, the ability to channel members’ demands, and the ability to reach out to large publics. This chapter has argued that the introduction of new participatory mechanisms over more than a decade – such as open online consultations, the ECI and, more recently, citizens’ panels and juries – have resulted in clearly recognisable cleavages and patterns of competition between established organisations and newcomers. These mechanisms, along with the transparency register, are all part of a progressive enlargement of the target publics of participation. Whereas this process of enlargement should have empowered new actors, all of this has happened without fundamentally challenging the insider status of the CSOs that have promoted the institutionalisation of participation. The latter CSOs remain the primary recipients of funding from EU institutions and retain a claim to the status of legitimate representatives of civil society in Brussels through the Civil Society Europe platform. Because of the importance of social struggles as an explanation for the changing opportunity structures for civil society, the chapter has relied on three sociological theories summarised below to understand how the aforementioned struggle for access and recognition has shaped the debates on the ways in which participation contributes to legitimacy. Field theory provides an explanation for the dynamics of competition between insiders and outsiders, and for the importance of institutionalised norms for the settlement of competition between insiders and outsiders. However, the settlement of the principle of participation does not end competition, which becomes a form of jockeying for the recognition and reward of different types of capital (expertise, representation and mobilisation) that different CSOs bring to the EU. In this sense, field approaches conceive of competition for status as inextricably linked to the transformation of the legitimate forms of involvement in European politics. Governmentality approaches also conceive of the link between political rationality and legitimacy, but consider it in a more cleaved way. Whereas field theorists conceive of a more or less constant ‘jockeying for position’ between insiders and outsiders with corresponding legitimacy effects, governmentality approaches consider that the legitimacy potential of civil society is rooted in its ability to resist and contest the processes of governmentalisation. Hence, most forms of civil society participation are seen as a form of colonisation of civil society by managerial institutional logics. This results in a trade-off between legitimacy and influence for CSOs which can hardly reconcile their involvement in institutionalised discussion and in the public sphere at the same time. European public sphere theories evaluate participatory tools by examining their ability to reach out beyond institutional publics and foster general discussions of EU policies. The main transformation since the institutionalisation of participatory tools has been the politicisation of the EU, which causes participation tools to engender contention and eventually contestation rather than consensus and assent. At the same time, the EU is increasingly promoting – and therefore rewarding in field theory terms – tools of participation that have an impact upon the public sphere. In contrast with governmentality theories, this means that institutionalised

68  Luis Bouza García tools may promote forms of contestation and dissensus that still result in legitimacy for the EU. However, whereas this may be true for tools such as the ECI and eventually citizens’ assemblies, other forms of enlargement of participation, like online consultations, have a weaker potential for contestation and communication. The field of civil society is no longer dominated only by organisations sharing an insider collective action register. Whereas these groups remain dominant, their form of action is increasingly challenged by organisations able to mobilise dissent as an important form of capital reward. Whereas the governmentality approaches have neglected EU participatory opportunities because of their characterisation as a form of governmentality, field approaches and public sphere conceptions see the relevance of these participatory opportunities as being dependent on the use that actors make of them. The challenge which the promotion of open consultations poses for insider CSOs is significant for the debate on the legitimacy of the EU as follows. For the theoretical approaches considering that the EU suffers from an opposition deficit, this challenge may be relevant because it incentivises the adoption of adversarial forms of collective action, which reward mobilisation capacity with policy influence. In parallel, those considering that the EU suffers from a populist challenge may see such a challenge reinforced by outsider organisations. As a general conclusion, the increasing diversification in the tools available to civil society to access EU policy-making in the context of growing dissent is an invitation to analysts to reconsider the nature of the cleavages between insider and outsider organisations. The jury is still out on how these transformations in participatory tools empower or disempower citizens directly. This chapter has demonstrated that the growing openness of these tools does not necessarily disempower organised civil society in favour of direct participation; rather, it diversifies the number and types of organisations interested in the EU. Importantly, this evolution has two beneficial results for citizens. First, the ability of organisations to empower ­citizens by fostering their involvement in a consultation or an ECI is better rewarded now than 20 years ago. Second, a more open and diversified field of participation provides stronger opportunities for current outsiders and newly established organisations to be involved in EU policies, albeit more likely in relation to a single issue or campaign. The challenge for civil society participation remains in terms of the ability to follow up on campaigns or initiatives based on direct citizen mobilisation across the policy-making process. This lays the ground for new coalitions between past insiders and new challengers, thus keeping the dynamics of competition and cooperation alive.

part ii Citizenship Beyond Elections

70

4 The Right to Petition, EU Citizens and the European Parliament Rise of the Triad? HENRI DE WAELE

I. Introduction The story of the individual in European Union (EU) law bears more than a faint resemblance to the heroic tales of the Greco-Roman era, told and retold through the ages. It offers a gripping account of incremental empowerment, usually linked to a series of rulings from the European Court of Justice in the 1960s and 1970s, reaching a zenith in the 1990s with the installation and expansion of Union citizenship.1 Roughly in parallel to this trajectory, the legal position of the European Parliament (EP) also underwent a gradual reinforcement, further strengthening the influence of citizens through their elected representatives. As Chapter 1 in this volume contends, every national of an EU Member State is nowadays heartily invited to play a part in EU democracy by acting as a policy entrepreneur, value promoter or lobbyist. Arguably, the inception point of the ascendancy of citizens’ rights lies somewhat earlier than the traditional iconography would have us believe. Citizens have in fact enjoyed the possibility of bringing topics directly to the attention of the supranational institutions for quite some time already, and in a variety of ways. In the 1950s, it was the Common Assembly of the European Coal and Steel Community that declared itself competent to receive and examine individual requests, but the attention of the High Authority and the Council of Ministers

1 See, eg, J Shaw, ‘The Many Pasts and Futures of Citizenship in the European Union’ (1997) 22 European Law Review 554–72; JHH Weiler, ‘To Be a European Citizen: Eros and Civilization’ in JHH Weiler, The Constitution of Europe “Do the Clothes Have an Emperor” and Other Essays on European Integration (Cambridge, Cambridge University Press, 1999) 324–57; D Kochenov (ed), EU Citizenship and Federalism (Cambridge, Cambridge University Press, 2017); S de Vries et al (eds), Civil Rights and EU Citizenship (Cheltenham, Edward Elgar, 2018).

72  Henri de Waele could equally be drawn to a particular matter via letters addressed to them, written in any of the official languages.2 Intriguingly, the true origins of this set-up date back to classical antiquity, where the nexus between the ruler and the ruled was partly embodied in the privilege of every Roman citizen to appeal to the emperor.3 Moreover, in the EU context, we may consider the long history of open consultation (Green Papers/White Papers), right up to the twenty-first century’s nouvelle vague of interactive online platforms, forums and surveys.4 Notwithstanding the countless modern additions, the right to submit petitions to the EP continues to encapsulate the most immediate ‘right to be heard’ within the European arsenal of participatory democratic instruments, constituting a classic asset in the EU’s multilevel governance architecture. However, we should bear in mind that this is an intentionally, and often intensely, egotistical tool. Citizens act primarily in their own interests instead of in the interests of a wider community – let alone those of a would-be European demos. Thus, the submission of a petition does not necessarily represent genuine participation in the policy-making process; occasionally, it can even be the exact antithesis of that.5 There is nonetheless nothing intrinsically wrong with the practice, since the way in which the instrument of petition is designed allows for different forms of deployment, as can be seen in democratic systems all over the world.6 Another feature that distinguishes petitions from other participatory rights lies in their ‘yearning’ nature. Whilst a universally accepted definition is lacking, etymologically the term stretches back to the Latin verb petere, which is translatable as ‘pursuing’ or ‘desiring’, rather than the casual posing of an innocuous or trivial question. The initiator will therefore probably not be content either with just providing input, and nor will he or she be receptive to any possible feedback. A certain demand has been made and is to be met, otherwise dissatisfaction would unavoidably ensue. In crude legalese, petitioning revolves around the wish to obtain a non-judicial remedy in response to a request or a complaint pertaining to the conduct of public offices. In Eurospeak, petitions may also proffer observations on the application of EU law, or a plea for the EP to express itself on a specific matter.7 Codification has occurred in what are currently Articles 20, 24 and 227 of the Treaty on the

2 F Piodi, The Citizen’s Appeal to the European Parliament: Petitions 1958–1979 (Luxembourg, Publications Office of the European Union, 2009) 7. 3 M Beard, SPQR: A History of Ancient Rome (London, Profile Books, 2015) 463–64. 4 See, eg, V Cuesta Lopez, ‘The Lisbon Treaty’s Provisions on Democratic Principles: A Legal Framework for Participatory Democracy’ (2010) 16 European Public Law 123–38, 131. See also ch 10 by Paolo Zicchittu in this volume. 5 The same, of course, holds for the sundry lobbies, which can be even more successful. See among the voluminous literature R van Schendelen, Machiavelli in Brussels (Amsterdam, Amsterdam University Press, 2002). 6 See, eg, D Korinek, Das Petitionsrecht im Demokratischen Rechtsstaats (Tübingen, Mohr Siebeck, 1977). 7 See www.europarl.europa.eu/petitions/en/home.

The Right to Petition, EU Citizens and the European Parliament  73 Functioning of the European Union (TFEU) alongside Article 44 of the Charter of Fundamental Rights, entitling citizens and natural or legal persons registered in one of the Member States. The only two requirements under these provisions are for the petition to come within the Union’s field of activity, and for it to concern a matter that affects the petitioner directly. Certainly, petitions could be regarded as a splendid tool for bottom-up detections of breaches of EU law. Moreover, they are alleged to hold a tremendous potential for democratic enhancement.8 Indeed, on paper, the right of petition is bound to score highly on the three axes of legitimacy: the individual determines the message (input); the procedure is spectacularly simple (throughput); and the result should be approximately in line with the type of request lodged (output).9 In practice, the attractiveness of petitions and their progeny appears to have grown exponentially, in Europe as much as elsewhere.10 Today, the right to petition is recognised in every EU country, with some (eg, Spain, France, Germany, Italy, Romania and Czechia) even elevating it to a fundamental or constitutional rank. Although the concrete manifestations differ, citizens are at a minimum enabled to deposit a formal letter with their parliamentarians.11 In the Union itself, as we will notice, the frequency of the exercise of the right to petition the EP has slowly increased over the course of half a century, without its contents undergoing drastic changes.12 This is but one facet calling for investigation, preferably coupled with an inquiry into its efficacy, if only to compensate for the limited amount of research that has been devoted to the thématique so far.13 This chapter offers a contemporary analysis of this underexplored instrument, seeking to unpick the general dynamics and test its actual worth, partially relying on empirical data. First, the chapter maps the institutional context, sketching the relevant technical aspects and procedural embedding, before moving on to inspect its practical operation and (perceived) bottlenecks (section II). It then engages in a quantitative and a qualitative study of the right’s real-time deployment in order to discern the main trends and patterns in recent years (sections III and IV).

8 V Schmidt, Democracy in Europe: The EU and National Polities (Oxford, Oxford University Press, 2006) 267. 9 V Schmidt, ‘Democracy and Legitimacy in the European Union Revisited: Input, Output, and “Throughput”’ (2013) 61 Political Studies 2–22, 3. In this chapter, legitimacy is conceived as ‘the perceived right to rule’, aligning with R Flathman, ‘Legitimacy’ in RE Goodin et al (eds), A Companion to Political Philosophy (Vol 2) (Oxford, Blackwell Publishing, 2007) 678–84, 678. 10 U Preuß, ‘Associative Rights (The Rights to the Freedoms of Petition, Assembly and Association)’ in M Rosenfeld and A Sajó (eds), Oxford Handbook of Comparative Constitutional Law (Oxford, Oxford University Press, 2012) 949–66, 949–51. 11 See, eg, M Crespo Allen, Le Droit de Pétition dans les Pays de l’Union Européenne (Luxembourg, Publications Office of the European Union, 2001). 12 In the last two decades, the EU has annually been receiving ten times the total number of petitions submitted in the entire 1958–79 era. cf Piodi (n 2) 15, juxtaposed with the further details provided in section III below. 13 Among the few, albeit dated, scholarly works is H Surrel, ‘Le “Droit de Pétition” au Parlement Européen’ (1990) 355 Revue de l’Union Européenne 219–34.

74  Henri de Waele This ultimately allows for a holistic assessment of the contribution that petitions can make to the entrenchment of European participatory democracy, and of the magnitude of their legitimacy-enhancing effects (section V).

II.  The Institutional Context A.  Technical-Procedural Foundations In the EU, the submission and processing of petitions is meant to take place in accordance with the Rules of Procedure of the Parliament (RoP), especially Rules 226–230 and Annex VI, section XX.14 The Parliament’s Committee on Petitions (PETI), currently composed of 45 members including one chair and four vice-chairs, serves as the central conduit and reflection forum.15 Since 2014, a web portal has been operational from where petitioners may launch their action and track the status of any submission. Working through email or old-fashioned paper-copy submissions remains a valid alternative. Identifying oneself properly and inserting a (digital) signature is mandatory, entailing that anonymous petitioning is impermissible. Submissions are registered in the order in which they are received by the Documents Reception and Referrals Unit of the EP, which assigns them a unique ID number.16 Petitions can be dealt with via a written procedure, boiling down to the Secretariat of PETI verifying the petition’s admissibility, before proposing the follow-up that it deems suitable. If the Committee members do not object, the Secretariat’s proposal is automatically approved.17 No rules set a specific ­timeline, but after registration, the decision normally arrives within approximately three months. Once they are considered admissible, petitions can still be referred to another EP committee. When it pursues the matter itself, PETI may choose to welcome petitioners in person so as to examine the dossier in their presence and benefit from ad hoc clarifications, in joint sessions with other EP committees where this is useful. In principle, these meetings are open to the public and streamed via the PETI website.18

14 See www.europarl.europa.eu/doceo/document/RULES-9-2020-02-03-TOC_EN.html. See also the Guidelines of the Committee on Petitions, December 2015 (updated in January 2018), Doc No PE575.044v05-00. 15 See www.europarl.europa.eu/committees/en/peti/home/members. 16 RoP, Rule 226, respectively paras 1, 2 and 6. 17 ibid Rule 226, para 10. If the Committee chooses to examine the file but fails to reach a consensus on the petition’s admissibility, it shall be declared admissible at the request of at least one third of the PETI members. Inadmissible petitions are filed, with petitioners being informed, and alternative means of redress recommended (Rule 226, para 11). 18 ibid Rule 227, para 1; Rule 121, para 3.

The Right to Petition, EU Citizens and the European Parliament  75 Hereafter, the committee in which the petition is substantively discussed can decide to table a motion for a resolution, subject to the agreement of the Parliament’s Conference of Presidents. Where a relevant legislative measure is in the process of being adopted, the Parliament might propose amendments to address the matter raised by the petitioner. The EP might also call on the Commission to propose a revision of EU legislation that is already in force. Instead of or in conjunction with this, PETI can ask the EP President to forward its opinions or recommendations to the Commission, the Council or the Member State concerned, request the views of the Commission or of other EP committees, host a workshop, organise a fact-finding visit or compile an own-initiative report. In order to identify a suitable remedy, it may directly ask for assistance and information from the Council, Permanent Representatives of the Member States, or national authorities.19 Each petitioner has the right to receive a reply on the admissibility decision within a reasonable period of time. Moreover, petitioners are always to be notified of the decision taken by the Committee and of the underlying motives. Citizens other than the petitioner may choose to add their support for new submissions or join petitions already deemed admissible, which can be done via the web portal. Once consideration of an admissible petition has been concluded, the chair of PETI makes a proposal for closure, agreed upon by consensus or voted through by a simple majority. When it is officially declared closed, the petitioner is informed accordingly.20

B.  Practical Operation and (Perceived) Bottlenecks As indicated above, in technical-procedural terms, petitions can be followed up in several ways. Whereas the efficacy of the process is analysed below with the aid of empirical data, the institutional context may also be appraised on its own merits, pinpointing possible shortcomings that could exert a negative influence on citizens’ experiences and/or the instrument’s functioning. As a standing committee of notable size, the place of PETI within the EP does not appear overly vulnerable, occupying a position equivalent to similar organs and bodies at the domestic level.21 The aforementioned Secretariat conducts itself very diligently, allowing for swift handling (eg, by bundling petitions on interconnected themes). The Committee benefits from ample resources, including the research expertise of the Policy Department for Citizens’ Rights and Constitutional Affairs used for undertaking studies, briefings and workshops, with which excellent working relations are said to have been established.22 PETI cooperates no 19 ibid Rule 227, paras 2, 3, 5 and 6. 20 ibid Rule 227, paras 4, 7 and 8. 21 cf Preuß (n 10); Crespo Allen (n 11). 22 EP, ‘Achievements of the Committee on Petitions during the 2014–2019 Parliamentary Term and Challenges for the Future’ (authored by J Heezen and O Marzocchi), Doc No PE 621.917, July 2019, 11.

76  Henri de Waele less intensively with the EP’s Legal Service, a staff member of which attends all Committee meetings, providing hands-on advice and representing the Parliament as a whole vis-a-vis the other actors involved if a dossier so requires.23 As will be described further below, both the Committee and its Secretariat interpret the criterion of ‘being directly affected’ broadly so that obstacles hardly present themselves as long as a petition addresses a topic that comes within ‘the Union’s field of activity’.24 There are still numerous submissions that are declared inadmissible, yet this seems to suggest a lack of familiarity with the EU’s mission and competences rather than a solvable defect.25 When contemplating the relative strengths and weaknesses of the petition process, it is important to realise that we are neither talking about a judicial body nor about an entity with autonomous enforcement powers. The petitions mechanism and PETI are meant to be complementary to other forums, just like they are in domestic settings, where it sometimes simply makes more sense to contact the executive branch or the ombudsperson. However, in contrast, easy access to the parliamentary process granted by the right to petition allows for scrutiny of the facts and open debates within the EU context no less than elsewhere.26 It is difficult to assert on the basis of objective and comparative benchmarks whether the right to petition in the EU can boast sufficient visibility or whether it falls short in this respect.27 To be sure, the instrument could undoubtedly benefit from extra attention and potential users could be made more aware of its existence, but the same is likely to be true of its counterparts in the Member States. The petition process displays reasonable transparency in that the Committee publishes an annual report, wherein it provides a meticulous overview of its deliberations on petitions and of the measures subsequently adopted, including those by other institutions, bodies and agencies.28 PETI maintains close relations with the Commission, which facilitates a satisfactory reply to many petitions. We might label it a nigh-permanent dialogue, stretching from hearings of Commissioner-designates to annual exchanges of views, and from requests for information to the posing of oral and written questions. There are structural links with the Commission’s Secretariat-General, which is entrusted with coordinating the transmission of queries from PETI to the relevant Directorate-General(s) or Service(s). Commission staff members may participate in PETI meetings to elaborate on previously delivered advice.29

23 ibid 12. 24 Article 227 TFEU. 25 S Russack, ‘Pathways for Citizens to Engage in EU Policymaking’, CEPS Policy Insights 2018/14, 8. 26 EP, Resolution of 13 February 2019 on the Outcome of the Committee on Petitions’ Deliberations during 2018, Doc No 2018/2280(INI), recital G. 27 cf PETI, ‘Report on the Deliberations of the Committee on Petitions during 2019’, Doc No 2020/2044(INI), recital E. 28 RoP, Rule 227, para 7. 29 ibid Rule 227, para 5.

The Right to Petition, EU Citizens and the European Parliament  77 Where needed and feasible, the Commission ordinarily endeavours to reach a solution by entering into a dialogue with the competent authorities, not refraining from initiating an infraction procedure as ultimum remedium.30 A recent study commissioned by PETI illustrates three key sources of discontent: the poor quality of some Commission responses; the excessive restraint in exercising its discretionary power to take action; and limited clarity on how petitions are handled internally.31 The interplay with the Council has been less pronounced. PETI meetings are attended by staff members from the Council’s Secretariat only incidentally, but hitherto the depth of collaboration remains unhelpfully limited.32 This is neither entirely surprising in light of the technical-procedural set-up outlined above, nor does it negate the possibility of calling upon Member States and requesting their services in other ways. The Committee has developed deep and meaningful ties with the European Ombudsman, inter alia in cases of gross negligence by EU institutions.33 Similarly constructive here is the fact that PETI is a member of the European Network of Ombudsmen, which includes the EU office as well as national and regional counterparts, enabling exchanges on specific dossiers and ‘pincer movements’. There exists a useful nexus between the Committee and the SOLVIT network, a web of offices across the Member States that offer citizens hands-on advice on European legal issues, which allows for quick liaison with resident experts in the relevant countries where necessary. PETI has nevertheless strongly supported the adaptation of the European Ombudsman’s Statute so as to reinforce its powers and independence, indicating that the current means of supervision and redress are not yet optimal.34 Another commissioned EP study underlined the desirability of greater commitment by its myriad partners and interlocutors.35 Simultaneously, the multiplicity of venues that EU citizens are able to approach with their individual or collective requests, complaints and alleged breaches of EU law appears bewildering. Although the fact that the online portal for the submission of petitions, after its latest overhaul, attempts to point petitioners towards more viable alternative channels is a step in

30 EP (n 22) 6. 31 EP, Study ‘Inter-institutional Relations in the Treatment of Petitions: The Role of the Commission’ (authored by M Moulac and M Ballasteros), Doc No PE 659.507, April 2021. 32 Russack (n 25) 13; EP (n 31) 28. 33 RoP, Annex XX, para 3. This may be considered ironic because the Parliament was for quite a while very adverse to the creation of the office of the Ombudsman, as it was perceived as a direct threat to the petitions system. See EP, Study ‘The European Parliament and the Establishment of a European Ombudsman: Twenty Years of Debate, 1974–1995’ (authored by J-P Jarry), Doc No PE 538.885, August 2015. 34 EP, Resolution of 12 February 2019 on a Draft Regulation of the European Parliament Laying Down the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties (Statute of the European Ombudsman) and Repealing Decision 94/262/ECSC, EC, Euratom, Doc No 2018/2080(INL). 35 EP (n 22) 31.

78  Henri de Waele the right direction, this is unlikely to be enough to avoid confusion altogether or minimise the risk that citizens get stuck at a dead end without an effective remedy to their problem.

III.  The Actual Use of Petitions: A Quantitative Survey Whilst a succinct exploration of the institutional context reveals no major imperfections but only minor glitches, the analytical spotlight now turns to the manner in which petitions are deployed in political reality. As hinted at above, petitions often pertain to the application of EU law, thus forming a valuable tool for the Commission, which lacks general investigative powers to find out about infringements of EU law. In terms of subject matter, petitions are known to span an incredibly vast gamut, ranging from animal welfare, children’s rights, the environment, social policy, transparency, conflicts of interest, free movement and migration to international agreements. In order to accurately grasp the bigger picture, the available statistics on the actual use of petitions deserve closer inspection and a fuller breakdown. Table 4.1 makes clear that the petitions’ popularity has fluctuated slightly over the five years between 2016 and 2020, the most recent period for which certified data are available at the time of writing. Over time, in spite of incidental spikes, the curve is relatively flat. For reference and by way of random comparison, in 2003, a total of 1,315 petitions were submitted.36 Table 4.1  Petitions submitted, 2016–20 Year

Total number of petitions submitted

2020

1,510

2019

1,357

2018

1,220

2017

1,271

2016

1,381

Source: https://www.europarl.europa.eu/petitions/en/show-petitions.

As Table 4.2 highlights, for the first and last years of this interval period (2016 and 2020), about a third of the petitions submitted were declared inadmissible, which again represents a stable situation from a longitudinal perspective. 36 PETI, ‘Report on the Deliberations of the Committee on Petitions during 2019’, 2020/2044(INI), 17 June 2020, 12. Two anomalous years recorded much larger numbers of petitions received (2,891 in 2013 and 2,715 in 2014), as discussed in H de Waele, ‘Union Citizens and the European Parliament: Perception, Accessibility, Visibility and Appreciation’ in P Minderhoud et al (eds), Caught in between Borders: Citizens, Migrants and Humans (Nijmegen, Wolf Legal Publishers, 2019) 175–82, 178–79.

The Right to Petition, EU Citizens and the European Parliament  79 Table 4.2  Admissibility of petitions in 2020 and 2016 Admissibility of petitions Positive decision Negative decision

Number in 2020

Percentage in 2020

Number in 2016

Percentage in 2016

1,125

65.8%

975

65.9%

385

34.2%

406

33.8%

Source: https://www.europarl.europa.eu/petitions/en/show-petitions.

In PETI’s periodic reports, the follow-up given to petitions that were deemed admissible is categorised in a somewhat minimalistic fashion. The three categories distinguished are forwarded to the Commission, forwarded to other bodies to obtain their opinion, and sent to other bodies for information purposes only. Table 4.3 demonstrates that the Committee habitually requests input from elsewhere on about half of the submissions, with the other half being forwarded without asking for feedback.37 Table 4.3  Outcome of petitions in 2020 and 2016 Number in 2020

Percentage in 2020

Number in 2016

Percentage in 2016

Sent to Commission for an opinion

794

52.9%

676

46.3%

Sent to other bodies for an opinion

44

2.9%

39

2.7%

Sent to other bodies for information

663

44.1%

746

51.1%

Outcome of petitions

Source: PETI annual report 2016 and draft report 2020.38

As regards the ‘target’ of petitions, Table 4.4 shows that the majority take aim at the EU itself (raising EU-wide issues or calling for EU-wide action). A comparison between the numbers and percentages of the petitions submitted in 2020 and 2016 makes it clear that the list of countries from which petitions originated has fluctuated severely. For instance, Italy went from being a front-runner in 2016 to being a laggard in 2020, while the reverse holds for the UK (ranking fifth in 2016 with 142 petitions, but slipping to eighth in 2020 with 38 petitions). Examining the figures in PETI’s individual annual reports provides an even more mixed picture, making it difficult to establish any causal inferences. What we do observe is that the largest Member States in terms of population size commonly take pride of place, even if France was a mysterious absentee in the top 10 in 2020 (with only 21 petitions in 2020, while ranking eighth in 2016 with 60 petitions).

37 It should be noted that the totals for 2020 and 2016 do not entirely match those in the admissibility section (Table 4.2), because even inadmissible petitions can be forwarded. 38 PETI, ‘Report on the Activities of the Committee on Petitions 2016’, Doc No 2017/2222(INI); PETI, ‘Draft Report on the Activities of the Committee on Petitions 2020’, Doc No 2021/2019(INI).

80  Henri de Waele Table 4.4  Target of petitions in 2020 and 2016 Petition target entity

Number of petitions in 2020

Percentage in 2020

Number of petitions in 2016

Percentage in 2016

EU

642

33.1%

403

25.7%

Spain

283

14.6%

157

8.2%

Germany

172

8.9%

209

10.9%

Poland

89

4.6%

66

3.4%

Italy

69

3.6%

329

17.1%

Romania Other

56

2.9%

91

449

32.3%

314

4.7% 30%

Source: PETI annual report 2016; draft annual report 2020.39

A potentially questionable conflation concerns the origin of the petitions (see Table 4.5) because in the official statistics this is tied to and determined by the nationality of the petitioner. That a petition originates in a certain country does not automatically mean that the person submitting the petition is one of its nationals. We nonetheless witness an almost identical line-up here as in Table 4.4, which contains a definite logic: the attention of petitioners will after all most often be drawn by rules and occurrences close to home. Intriguingly, in 2020 the main countries of origin commanded a much smaller share of the total than in 2016, whilst many more Italian petitions were submitted in 2016 than in 2020. Conversely, in 2016 the UK still ranked fourth with 138 petitions, falling to ninth place in 2020 with 38 petitions despite Brexit. Again, the contrast between the two reference years may well be due to coincidental factors, and attempting to pinpoint the causes without an exhaustive inquiry would only invite speculation. We can anyhow confirm the strong continuity of the ranking in the top 3, even though the ­countries concerned have repeatedly changed places in the past five years. Table 4.5  Origins of petitions in 2020 and 2016 Nationality of the petitioner

Number of petitions in 2020

Percentage in 2020

Number of petitions in 2016

Percentage in 2016

Germany

404

13.8%

298

18.9%

Spain

368

12.5%

180

11.4%

Italy

127

4.3%

376

23.9%

Poland

105

3.6%

77

4.9%

89

3.0%

97

6.2%

483

62.8%

275

34.7%

Romania Other nationalities

Source: PETI annual report 2016; draft annual report 2020.40

39 The results in the final row were amalgamated and the percentages were recalculated by the author. 40 The results in the final row were amalgamated and the percentages were recalculated by the author.

The Right to Petition, EU Citizens and the European Parliament  81 The main petition themes in 2016 and 2020 are given in Table 4.6. This shows a relatively high place for ‘health’ in 2020, doubling in absolute numbers compared to 2016 as a corollary of the COVID-19 pandemic. The same goes for the frontrunner theme in 2020, ‘fundamental rights’, which is a corollary of the restrictions that have been imposed by numerous national governments, including the curtailing of free movement across the EU.41 This theme has remained fairly stable in the top 3, quite possibly due to the Brexit process raising multiple questions that would fit under this heading.42 Overviews from other years inside and outside of the period studied demonstrate that the internal market, transport and social affairs incidentally reach higher positions, only to recede again without ever falling out of the top 10. The critically minded cannot help noting that the formal classification adhered to by PETI seems to evince a measure of arbitrariness. After all, from an EU law perspective, various social and internal market rights nowadays possess a fundamental status too, but have been relegated to eponymous boxes instead. The same goes for straddling topics, like ‘employment’ and ‘justice’, which are also difficult to consider as wholly isolated categories.43 Table 4.6  Themes of petitions, 2020 and 2016 Number in 2020

Percentage in 2020

Number in 2016

Percentage in 2016

Fundamental rights

268

11.1%

178

7.0%

Health

221

9.2%

111

4.4%

Environment

200

8.3%

158

6.2%

Justice

151

6.3%

179

7.1%

Education and culture

104

4.3%

47

1.9%

Petition themes

Source: PETI annual report 2016; draft annual report 2020.

From the collected data, the major leap in importance of the ‘health’ theme emerges as the most remarkable discrepancy between the two reference years. Apart from the other minor contrasts flagged above, no radical shifts are noticeable: in terms of popularity, addressees and users, the trend is rather one of plus ça change, plus c’est la même chose. This neither signifies that things are going ‘totally right’, nor that they are going ‘totally wrong’. Ostensibly, the repeated reform of the p ­ etition web portal, carried out to render it more user-friendly, has not had a massive

41 As acknowledged in PETI’s Draft Report for 2020, 17. 42 EP, Study ‘The Impact of Brexit in Relation to the Right to Petition and on the Competences, Responsibilities and Activities of the Committee on Petitions’ (authored by E Spaventa), Doc No PE 583.154, June 2017. 43 Vice versa, the theme of ‘disabilities’ in which PETI feigns to take a paramount interest, is consciously grouped under ‘fundamental rights’, whereas the files could just as well touch on employment, justice, migration or the internal market.

82  Henri de Waele impact on the frequency of its actual use by petitioners.44 The same goes for a phenomenon like Brexit on the scoreboards of the petitions’ origins, with the UK not standing out in the way that might have been expected. Consequently, having analysed the evolution of the right of petition from a quantitative perspective, the overwhelming impression is that of an instrument ‘going steady’.

IV.  Actual Use: A Qualitative Survey In order to fully appraise the efficacy of petitions, it is essential to engage in a qualitative survey, interrogating in greater depth the admissibility dimension and the follow-up in specific cases, as well as the petitioners’ satisfaction with the outcome. Since it is beyond the scope of this chapter to perform such a study in an exhaustive fashion, the samples discussed in this section, which are extracted from a combination of primary and secondary sources, are not meant to be representative. Nevertheless, they do assist in throwing the foregoing assessments into sharper relief.45 A selection of petitions was made by focusing on the last decade (2010–20), spread across the years, with a focus on the topics that stood out in terms of popularity. Moreover, as will be explained, the files chosen pertain to either macro-, meso- or micro-level problems, aiming to shed light on different aspects of the petitioning procedure, PETI’s approach and the actual results.

A.  Confiscation of Documents in Austria This case, revolving around petition 1673/200,46 offers invaluable insight into PETI’s admissibility assessment, while at the same time exposing how even frivolous complainants are treated fairly on the supranational plane – if need be taking the process all the way up to the European Court of Justice. The applicant, an Austrian national, complained that the national authorities in his country had illegally confiscated a series of documents and publications in the 1980s. His claim for damages before the Finanzprokurator having been unsuccessful, he lodged an appeal before the European Court of Human Rights (ECtHR) in 2007, which was rejected in April 2009. The petitioner now requested that the EP enjoin the European Commission and any other competent body to clarify the motives for the dismissal of the ECtHR appeal, and the action that was to be expected from the Austrian authorities to compensate him for the harm inflicted. PETI dismissed the case for going beyond the EU’s competence, making it clear that the EP could 44 cf PETI, ‘Report on the Deliberations of the Committee on Petitions during 2019’, Doc No 2020/2044(INI), 23–24. 45 See also de Waele (n 36) 178. 46 Facts derived from Case T-160/10, J v Parliament, ECLI:EU:T:2012:503; Case T-160/10 AJ, J v Parliament, ECLI:EU:T:2011:95; and Case C-550/12 P, J v Parliament, ECLI:EU:C:2013:760.

The Right to Petition, EU Citizens and the European Parliament  83 not pronounce on decisions reached by the courts of the Member States, let alone annul them. The applicant considered this motivation unsatisfactory and took the matter to the General Court, where an interim request for subsidised legal aid was granted. The case was dismissed by the General Court’s Sixth Chamber in 2012, declaring that PETI had acted correctly: its decision had been adequately motivated and the matter at stake indeed fell outside the scope of EU law, with a special eye on Article 51 of the Charter of Fundamental Rights.47

B.  The Querulous EP Civil Servant The next case, related to petition 1188/2010,48 neatly illustrates how disgruntled petitioners, when opting for litigation, may in due course run into the limits of judicial review. The petition was initiated by a former civil servant employed by the EP who had contested a performance assessment from 2005. This challenge led to a finding of maladministration by the European Ombudsman three years later. In 2010, he submitted a petition in which he asked the EP to give full effect to the Ombudsman’s conclusions. The Chair of PETI replied that the Committee was unable to deal with the petition’s substance and forwarded the request to the Parliament’s Director-General for Human Resources, thus closing the file. In 2011, the applicant sought the annulment of this PETI decision before the General Court, alleging that the Committee had unlawfully refrained from examining the merits of the petition. Applying established precedent, the General Court declared the action inadmissible, holding that the decision of the Committee did not produce binding effects of such a kind as to affect the petitioner’s legal position. The applicant then appealed before the Court of Justice, which ruled in 2014 that when a petition is declared admissible, PETI enjoys a broad discretion as to how it should be dealt with. According to the latter Court, decisions on the nature of the followup given to petitions are not amenable to judicial review, regardless of whether the PETI or other EP organs take any measure themselves, or whether the dossier is forwarded to another EU body or institution.

C.  Babies Stolen in Spain Petitions 1772/2012 and 1790/201249 underline the flexible and forthcoming attitude of PETI, even towards delicate topics which prima facie exhibit only tenuous 47 Paragraph 1 thereof stipulates that: ‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union … with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.’ 48 Facts derived from Case T-186/11, Peter Schönberger v Parliament, ECLI:EU:T:2013:111; and C-261/13 P, Peter Schönberger v Parliament, ECLI:EU:C:2014:2423. 49 Petition No 1772/2012 by Ana Peso Haro on the theft of a newborn at a hospital in Spain and the failure of authorities to properly investigate the case; Petition No 1790/2012 by Ascensión Barbero

84  Henri de Waele connections to EU law. They concerned two Spanish women whose babies were stolen at birth by hospital personnel. Once the Franco era came to an end, numerous such tragedies surfaced in Spain, the authorities being suspected of committing or condoning crimes against humanity. The bereaved turned to PETI, which decided to take up the gauntlet despite doubts over whether the issue touched upon a field of EU activity. The relaying of the matter to the European Commission culminated in the latter’s rejection to pursue the case further. PETI then resorted to a trusted alternative avenue and organised a fact-finding visit to Spain in 2017, meeting with the General Prosecutor of the State, the Minister of Justice and the parliamentary Justice Committee. After a presentation by the petitioners at the EP, Members of the European Parliament (MEPs) put pressure on the Spanish government.50 This supranational involvement is likely to have been one of the factors that heightened the sense of urgency, driving forward the adoption of a new ‘proposición de ley’ on babies stolen during the Franco dictatorship, which was approved unanimously by the Spanish Congress in early 2020.51

D.  Irish Lives Lost at Sea This dossier, pertaining to petition No 1938/2012, shows how invoking the right to petition, even where the subject matter comes across as hyper-individualistic in nature, may eventually produce the desired results, although the patience of the petitioner was severely tried in the process.52 In 2001, the Irish government introduced a scheme for providing compensation to families or people who had accidentally lost fishing boats between 1980 and 1990 due to tonnage quotas. In 1981, a vessel was tragically lost during a storm at sea, seeing two fishermen perish, and a surviving relative, wishing to continue the family tradition, applied for their quota. The application was rejected by the authorities for tardiness reasons. The applicant then complained to the Irish Ombudsman, who saw herself faced with serious maladministration, and found the victims eligible for monetary compensation.53 However, the competent authorities dragged their feet, inducing the family to petition the EP in 2012. Upon PETI’s request, the Commission scrutinised the dossier, but did not consider it opportune to launch an infringement procedure. Notwithstanding the particularity of the file, PETI did

Sánchez on the theft of a newborn at a hospital in Spain and the failure of authorities to properly ­investigate the case. 50 EP, ‘Stolen Babies: MEPs Urge Spain to Solve All Alleged Cases’, Doc No 2017/1121/IPR88505, www.europarl.europa.eu/news/en/press-room/20171121IPR88505/stolen-babies-meps-urge-spainto-solve-all-alleged-cases. 51 Proposición de Ley 122/000039 sobre bebés robados en el Estado español, Congreso de los Diputados, XIV Legislatura, No 65-1, 6 March 2020. 52 Petition No 1938/2012 by Danny Byrne on discrimination by the Irish authorities in implementing the Lost at Sea Scheme. 53 Special Report by the Irish Ombudsman, Lost at Sea Scheme, December 2009, www.ombudsman. ie/publications/reports/lost-at-sea/index.xml.

The Right to Petition, EU Citizens and the European Parliament  85 not relent, demanding clarifications at the domestic level. In 2017, the competent Irish m ­ inister pledged to look into the matter, taking account of the grievances transmitted by the Committee. One year later, the minister decided to exercise his discretionary power to award a fair sum to the widow of the petitioner’s father.54

E.  TTIP and FATCA Mindful of the growing relevance of the domain, it is instructive to reflect on the varying outcomes of petitions that have revolved around external affairs and (proposed) international agreements. Moreover, concerning their objectives, these two petitions could be said to resemble the instrument of actio popularis. From 2013 onwards, PETI saw itself confronted with an array of petitions on the Transatlantic Trade and Investment Partnership (TTIP), one of them from a Belgian national, alleging violations of some of the central tenets of EU law and governance, inter alia the precautionary principle.55 PETI responded by formulating recommendations, which were subsequently relayed to the EP Committee on International Trade.56 While the pressure from PETI has surely not been decisive, it is noteworthy that the Commission and the Council have since adjusted the EU’s international negotiation strategy and have begun publishing guidelines and interim papers with welcome regularity. Similarly critical petitions were lodged against the US Foreign Account Tax Compliance Act (FATCA), one, for instance, by a French national who alleged an infringement of EU rights and the unlawful imposition of extraterritorial obligations.57 The whole batch was judged admissible in 2018, leading to a detailed study of the application of this piece of US legislation, and a referral to the Commission and the Council. Additional examination of the petitions took place in the EP plenary by means of oral questions, underscoring the quandary in which countless ‘incidental Americans’ and other citizens with dual nationality found themselves. On this basis, the Parliament adopted a resolution on the adverse effects of the legislation.58 The problématique is still unresolved at the time of writing, with questions from MEPs on FATCA’s compatibility with the EU’s General Data Protection Regulation not prompting further action by the Commission.59 54 E McMenamy, ‘Family Which Lost Father and Son in Sea Tragedy to Receive €250,000 Compo – 15 Years after They Died’, Irish Mirror, 2 May 2018, www.irishmirror.ie/news/irish-news/health-news/ family-lost-father-son-sea-12467845. 55 Petition No 0033/2015 by Arnaud Keymolen on TTIP and CETA. 56 PETI, Opinion on Recommendations to the European Commission on the negotiations for the Transatlantic Trade and Investment Partnership, Doc No 2014/2228(INI). 57 Petition No 1088/2016 by J.R. on the US Foreign Account Tax Compliance Act’s alleged infringement of EU rights and the extraterritorial effects of US laws in the EU. 58 EP, Resolution of 5 July 2018 on the Adverse Effects of the US Foreign Account Tax Compliance Act (FATCA) on EU Citizens and in Particular ‘Accidental Americans’, Doc No P8_TA(2018)0316. 59 Question to the Commission for written answer from Sophie in’ t Veld (Renew), 22 September 2020, Doc No E-005165/2020 (answered by Mr Reynders); Question to the Commission for written answer from Engin Eroglu (Renew), 21 October 2020, Doc No E-005716/2020 (answered by Ms McGuinness).

86  Henri de Waele

F.  Clarity on Schengen Border Controls One of the biggest challenges ever for the EU has been the COVID-19 pandemic, impeding its ordinary functioning, including that of the EP and PETI. In the spring of 2020, PETI’s coordinators decided to treat submissions related to the coronavirus with urgency, to take increasing recourse to written procedures and to start meeting remotely.60 The topics citizens raised fell into various brackets, ranging from the proportionality of lockdowns in light of EU law to the management of cancelled airline flights, and from collective procurement of protective equipment by the Member States to the accelerated distribution of vaccines. One of the many pertinent files, flowing from Petition No 0653/2020, essentially lambasted the return of border controls in the Schengen Area.61 Above all, the ire of the applicant, a Belgian national, was caused by the ambiguity as to what counted as an acceptable ground for leaving and entering other EU countries. He asked for clarity on the proper interpretation of the Schengen Borders Code and for a plan to revitalise the free movement regime to be drafted. Spurred on by MEP Pascal Arimont, a hearing took place at the Parliament, as well as an exchange of views with a representative of the responsible Commission Directorate-General.62 In November, the Parliament adopted a resolution welcoming the guidance provided by the Commission and the common efforts it had undertaken together with the Member States, inviting them to enhance their coordination so as to avoid future repetitions, and encouraging the exemption of frontier workers from the restrictions.63 Obviously, it can hardly be attributed to this action alone that national governments did not relapse in their behaviour during the ‘second’ and ‘third’ waves of the pandemic; yet, with most borders no longer being shut so suddenly and rigorously, part of the petitioner’s wishes were fulfilled. Overall, this example shows how swiftly PETI is able to adapt to emergency circumstances, not hesitating to sink its teeth into legal problems with priority.

V.  Conclusion: Exploding the Myth(s) Generally speaking, participating in civil dialogue and consultation on the European plane tends to be reserved for collective actors, thanks to their having

60 From April to September 2020, all gatherings boiled down to two-hour sessions taking place in the premises of the Parliament, with remote participation of its members, the petitioners, and representatives of the Commission. 61 Petition No 0653/2020 by Lutz René Jusczyk, on behalf of the Open Borders Europe association, on the Schengen system and measures taken during the COVID-19 crisis. 62 See www.eppgroup.eu/how-we-make-it-happen/with-eu-countries/belgium/news/pascal-arimontprotect-our-border-regions. 63 EP, Resolution of 24 November 2020 on the Schengen System and Measures Taken during the COVID-19 crisis, Doc No P9_TA(2020)0315.

The Right to Petition, EU Citizens and the European Parliament  87 greater access to resources, expertise and information about EU affairs than the ordinary citizen.64 Instead, the right to petition evinces the force of the individual citizen as an actor at the EU level. When acting in the capacity of petitioner, EU citizenship is not just ‘destined to be’, but in fact already embodies ‘the fundamental status of nationals of the Member States’.65 In comparison, the vaunted European Citizens’ Initiative (ECI), made possible by the Treaty of Lisbon, requires an official organising committee, one million supporters, and adherence to tight conditions and deadlines.66 Arguably, then, petitions could not merely be regarded as the most significant individual effort to address EU affairs, but also as the most impressive means of individual empowerment that exists within the EU’s institutional framework. In comparison, the ECI amounts to a less workable participatory instrument, if only due to tougher thresholds.67 The quantitative insights presented above suggest that the establishment of the ECI did not dampen the popularity of petitions, perhaps inadvertently lending them extra visibility and attraction. The benevolence of the EP is demonstrated by PETI picking up on ECIs that fail to overcome the applicable numerical hurdles.68 Petitions have been conceived as a smooth and accessible medium for citizens to reach out to the ruling classes. Contrary to pessimistic assumptions, in the EU, the medium carries the potential of fortifying the position of the Parliament vis-avis other national and supranational actors. The case studies and the institutional context analysed in this chapter buttress these conclusions, which are supported by the generally fair judicial treatment of the petitioners dissatisfied with the reaction to their pleas.69 Indeed, in contrast to what sceptics may contend, PETI is rather effective in placing and keeping topics on the EU agenda that would otherwise be neglected, mobilising Member States or institutions on ‘orphan’ or ‘dormant’ issues no less than on those lying at the centre of the debate.70 The EP forms a vital link in the chain of EU participatory democracy and has in the last few decades undergone a meaningful strengthening.71 Therewith, the EP’s effectiveness in channelling petitioners’ interests ought to have been improving

64 Cuesta Lopez (n 4) 135. 65 Case C-184/99, Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, ECLI:EU:C:2001:458, para 31. 66 See more on the ECI in ch 11 by Mario Mendez and ch 12 by Jasmin Hiry-Lesch in this volume. 67 cf M Dougan, ‘What are We to Make of the Citizens’ Initiative?’ (2011) 48 CML Rev 1807–48, 1847. 68 RoP, Rule 230, para 2. 69 In contrast to one recent study, the present research has therefore not found empirical or theoretical support for the position that it has not succeeded in making an impact and engaging citizens, nor for the claim that the use has meaningfully declined over the past years. See N Vogiatzis, ‘The Past and Future of the Right to Petition the European Parliament’ (2021) 40 Yearbook of European Law 82–110. Curiously, its author also contends that ‘the European Ombudsman is perceived by citizens as more effective than the Petitions Committee’, without providing a source reference (at 103). 70 EP (n 22) 1. 71 See, eg, Cuesta Lopez (n 4) 123–24.

88  Henri de Waele too. Claims of a worrying disconnect between EU citizens and their Parliament appear exaggerated in light of the evidence discussed in this chapter. The absence of a giant surge in the number of petitions submitted in the last few years, in spite of pressing issues like Brexit and COVID-19, does give rise to the thought that the medium so far remains under-utilised. Moreover, since the Treaties deliberately constrain the EU’s fields of activity, the right to petition could, like the ECI, raise expectations that the Union will never be able to live up to.72 Beyond the data surveyed, one might believe that the growing visibility of the right to petition would incentivise its more frequent use in practice. Unfortunately, the well-intended overhauls of the petitions web portal have triggered no such momentum. From a strictly legal vantage point, it cannot be denied that petitions are a weak instrument: there are no guarantees whatsoever regarding the (type of) follow-up, and when favourable results are achieved, a causal relationship may be entirely lacking. The medium has thus not enabled the ever-mightier EP to do that much more for the average EU citizen.73 A crucial desideratum for enhancing the petitions’ efficacy lies in a stronger dedication by the EP’s interlocutors to address the concerns raised by the petitioners. The Commission in particular has been urged to engage with greater zeal when approached by PETI, to formulate its positions better and to share its views in a timely manner.74 In the Commission’s intransigence lies the rub, since a firmer commitment on its part might lead to more petitions being submitted, sparking a virtuous circle that could in turn, at least to some extent, shore up the legitimacy of the EU as a whole. However, based on our findings, misgivings about the EU’s wholesale inability to open up and accommodate public input are untenable. Though often overlooked, the right of petition has played a valuable role in bridging the gap with the tentative demos, showcasing how the EP, just like the Commission, can be genuinely responsive to smaller and larger stakeholder demands.75 Simultaneously, due to the way it is currently designed, the petition right alas cannot succeed in terms of radically boosting the EU’s credibility. Further efforts will be needed to secure a veritable ‘rise of the triad’, consisting of the Parliament and the Commission, as well as the EU citizenry. For the time being, the EU right of petition is as good as it gets, constituting a tool that takes its rightful place within the supranational framework of participatory democracy.

72 A Alemanno, ‘Europe’s Democracy Challenge: Citizen Participation in and beyond Elections’ (2020) 21 German Law Journal 35–40, 37. 73 On this count, one may concur with Vogiatzis (n 69) 102–04. 74 EP (n 31) 46–53. 75 cf A Judge and R Thomson, ‘The Responsiveness of Legislative Actors to Stakeholders’ Demands in the European Union’ (2019) 26 Journal of European Public Policy 676–95, 690.

5 Fostering Citizens’ Control Over and Participation in EU Democratic Life The Ever-Increasing Importance of the European Ombudsman MARCO INGLESE

I. Introduction To use the words of the Court of Justice of the European Communities, which later became the Court of Justice of the European Union (CJEU), in the landmark case Van Gend en Loos, the then European Economic Community ‘constitute[d] [a] new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only the Member States but also their nationals’ (emphasis added).1 So, already in 1963, long before the formal introduction of European citizenship, which took place 30 years later thanks to the entry into force of the Treaty of Maastricht in 1993, the paramount constitutional position of Member States’ nationals was expressly acknowledged. Nevertheless, it is a common (mis)assumption and a widespread feeling that decisions in the European Union (EU) are taken far away from national capitals by faceless bureaucrats, who impose the will of a handful of powerful states in a top-down fashion.2 Although a recent Standard Eurobarometer survey devoted to the topic of European citizenship concludes that ‘attitudes towards the EU remain positive and broadly stable’,3 a brief analysis of the data points to the overall

1 Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Netherlands Inland Revenue Administration, judgment of 5 February 1963. 2 See, eg, the new Italian trend of this disaffection in R Balfour and L Robustelli, ‘Why Did Italy Fall out of Love with Europe?’, IAI Commentaries No 19/48, July 2019, www.iai.it/en/pubblicazioni/ why-did-italy-fall-out-love-europe. 3 See ‘Abstract’ to the Standard Eurobarometer 95 – Spring 2021 – European Citizenship, https:// europa.eu/eurobarometer/surveys/detail/2532.

90  Marco Inglese impression that only approximately 50% of the citizens surveyed have this positive attitude towards the EU, while the remaining half are split between those who tend not to trust the EU and those who did not express their view. Be that as it may, the narrative according to which citizens are left behind and enjoy no role whatsoever, feeling deprived, or even devoid, of any meaningful power to control what happens in the EU has always been present.4 This narrative, which has loomed over the European integration process since its inception, could be considered to amount to a lack of democratic participation in the EU decision-making process.5 Before turning to the contribution of the European Ombudsman6 to addressing this problem, the latter’s different manifestations are presented below in order to illustrate the context in which such a contribution is made. The first attempt to address the alleged deficit of democratic participation was the direct election of the European Parliament (EP) by universal suffrage in 1979. Since then, EU citizens have had the right to vote for their representatives and, after the Treaty of Maastricht, to stand for elections themselves. This is now enshrined in Article 39 of the Charter of Fundamental Rights of the EU (hereinafter ‘the Charter’). However, the turnout in EP elections is generally lower than in national elections: for instance, in 2019 the turnout was only 50.66%.7 At the same time, political campaigns are often driven by domestic interests.8 Once again, therefore, citizens may feel deprived of any meaningful representation at the EU level. Although this is often considered to be a harsh claim, several reasons militate in favour of this argument. Indeed, despite Article 10(4) of the Treaty on European Union (TEU) providing that ‘[p]olitical parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union’, it is also true that European political parties coalesce in accordance with their members’ national political affinities. Furthermore, there is neither a uniform electoral procedure nor a general election day.9 One could counter-argue that there are several pan-European movements challenging this landscape (the European Movement International, the European Federalist Movement etc). However, these 4 That this narrative is often translated into Euroscepticism has been argued in F Nicoli, ‘Democratic Deficit and Its Counter-Movements: The Eurocentric-Eurosceptic Divide in Times of Functional Legitimacy’ in M Baldassari et al (eds), Anti-Europeanism: Critical Perspectives towards the European Union (Cham, Springer, 2020) 13–29. 5 See a seminal study in P Pescatore, ‘Les Exigences de la Démocratie et la Légitimité de la Communauté Européenne’ (1974) 10(5) Cahiers de Droit Européen 499. 6 When referring to the Ombudsman as a body, the pronoun ‘it’ will be used. Instead, when referring to the person holding the office of the Ombudsman, her or his personal name will be used. 7 EP, ‘2019 European Election Results’, www.europarl.europa.eu/election-results-2019/en/turnout. By way of comparison, the 2018 Italian general election saw a turnout of 72.94% for the Chamber of Deputies and 73.01% for the Senate of the Republic. Data taken from https://elezionistorico.interno. gov.it. 8 A Vuolo, ‘La Crisi Italiana e l’Elezione del Parlamento Europeo’ in B Caravita (ed), Le Elezioni del Parlamento Europeo (Turin, Giappichelli, 2019) 381–408. 9 Article 223 TFEU stipulates that, according to a special legislative procedure, the Council can lay down the necessary provisions for the election of EP members in accordance with a ‘uniform procedure’. This norm has been never used to date.

Fostering Citizens’ Control Over and Participation in EU Democratic Life  91 movements are often focused on a specific campaign or agenda rather than on the promotion of the EU’s broader interests and objectives. Similarly, the organising committees of the European Citizens’ Initiatives (ECIs) promote individual issues within the legal constraints of Article 11 TEU and Article 24 of the Treaty on the Functioning of the European Union (TFEU), which means that they cannot go beyond the competences attributed to the Commission.10 Over the last few years, the EU has been profoundly shaken by unprecedented crises, such as the sovereign debt crisis, the influx of migrants, rule of law backsliding in Hungary and Poland, fierce opposition to free trade agreements, Brexit and the COVID-19 pandemic. EU institutional responses to these crises should be carefully assessed both against the principle of conferral and against citizens’ expectations. On the one hand, the principle of conferral curtails the EU’s competences to what Member States have conferred upon it. In this sense, the EU appears to be slow and ineffective in combating rule of law backsliding not only because Article 7 TEU establishes a political rather than a legal mechanism, but also because actions for failure to fulfil an obligation according to Article 258 TFEU can only target individual pieces of conflicting national law, yet cannot force a systemic change in the Member States concerned.11 On the other hand, the citizens’ feelings that decisions are taken behind closed doors and that high-ranking EU officials keep benefiting from revolving doors – moving from one position to another without being accountable and with potential conflicts of interest – increase their dissatisfaction. For instance, former Commission President José Manuel Barroso became employed by Goldman Sachs just after the expiry of the then applicable cooling-off period of 18 months, generating concerns because, during the last part of his two-term mandate, he dealt with the Greek public debt crisis.12 It is difficult to ascertain whether citizens play any role in these institutional or quasi-institutional dynamics at the EU level. Finding an appropriate forum to discuss, and potentially challenge, the alleged lack of citizen participation is extremely hard for a number of reasons. First, litigation is expensive and limited by the Union’s constitutional set-up because the application and enforcement of EU law is partially entrusted to national judges through the preliminary ruling procedure (Article 267 TFEU).13 Second, the locus standi for individuals has always been 10 See, eg, the ECI entitled ‘Voters without Borders, Full Political Rights for EU Citizens’, which aimed to create a space for transnational politics and allow EU citizens to vote in their country of origin or in their country of residence. The deadline to gather one million statements of support was 11 June 2022, but the ECI did not reach this threshold, managing to collect only 8,780 such statements. 11 See, however, the literature arguing that Article 258 TFEU can be used to address systemic rule of law violations: KL Scheppele et al, ‘EU Values are Law, after All: Enforcing EU Values through Systemic Infringement Actions by the European Commission and the Member States of the European Union’ (2020) 39 Yearbook of European Law 3–120. 12 See the Decision and Recommendations of the European Ombudsman in the joint inquiry into complaints 194/2017/EA, 334/2017/EA, and 543/2017/EA on the European Commission’s handling of post-mandate employment of former Commissioners, a former Commission President and the role of its ‘Ethics Committee’, 20 July 2018. 13 See G Butler and U Sadl, ‘The Preliminaries of a Reference’ (2018) 43 European Law Review 120.

92  Marco Inglese a significant procedural constraint in bringing an action for annulment (Article 263 TFEU), which is usually limited to challenging the validity of a legal act having a direct and personal (adverse) impact on an individual.14 Moreover, although privileged applicants – the Member States, the EP, the Council and the Commission – do not need to show a potential interest to trigger Article 263 TFEU, they have often used this possibility to protect their political interests and, in the case of Member States, sovereign interests too.15 The willingness of these privileged actors to bring an action before the Court is also uncertain. Additionally, while failure to consult certain bodies during an ordinary legislative procedure, such as the Committee of the Regions and the European Economic and Social Committee, could amount to a Treaty violation and lead to the annulment of EU legislation,16 other forms of democratic participation do not enjoy the same level of judicial protection. Indeed, it does not seem that ‘broad consultations with parties concerned’, which the Commission is obliged to carry out under Article 11(3) TEU, are compulsory in the decision-making process.17 Third, actions for failure to fulfil an obligation (Article 258 TFEU) are not a judicial remedy available to citizens, because only the Commission enjoys the discretion to decide whether to commence such actions or not. Moreover, the aim of these actions is to ensure respect for EU law and not to empower citizens to be heard or make good any damage that they may have suffered. Be that as it may, to date, no judicial actions have been brought before the CJEU to guarantee citizens’ participation in and control over the EU decisionmaking process. Other options must therefore be explored. The European Ombudsman is a privileged actor empowered to address issues of maladministration. Since its introduction in the Treaty of Maastricht, the Ombudsman has contributed to shaping a new institutional culture, fostering citizens’ control and participation in EU democratic life. In this sense, the Ombudsman represents an outstanding forum giving a voice not only to EU citizens but also to third-country nationals resident in a Member State. The Ombudsman’s influence is praiseworthy for successfully cultivating an institutional milieu of citizen participation, which goes beyond its role of a mere watchdog of the right to good administration foreseen in Article 41 of the Charter.18 So, not only does the Ombudsman help to make good an alleged violation of the right 14 See, eg, CJEU, Inuit, Case C-583/11 P, judgment of 3 October 2013; CJEU, Montessori, Joined Cases C-622/16 P–C-624/16 P, judgment of 6 November 2018. 15 CJEU, Case C-84/94, United Kingdom of Great Britain and Northern Ireland v Council of the European Union, judgment of 12 November 1996; CJEU, Case C-377/98, Kingdom of the Netherlands v European Parliament and Council of the European Union, judgment of 9 October 2001; CJEU, Case C-377/16, Kingdom of Spain v European Parliament. 16 CJEU, Joined Cases 281, 283, 284, 285 and 287/85, Germany and Others v Commission, judgment of 9 July 1987. 17 See mutatis mutandis CJEU, Case C-928/19 P, European Federation of Public Service Unions v Commission, judgment of 2 September 2021. 18 See on this most recently A Wille and M Bovens, ‘Watching EU Watchdogs Assessing the Accountability Powers of the European Court of Auditors and the European Ombudsman’ (2020) 44(2) Journal of European Integration 183–206.

Fostering Citizens’ Control Over and Participation in EU Democratic Life  93 to good administration,19 but it also contributes to shaping it and fostering EU institutional accountability in the eyes of EU citizens and third-country nationals. In light of the above, this chapter analyses the Ombudsman’s role in fostering citizens’ control over, and participation in, the EU decision-making process. This is carried out as follows. First, particular emphasis is given, on the one hand, to how citizenship can shape EU democracy through the Ombudsman and vice versa, and, on the other hand, to how this can be depicted as a win-win situation. Second, it is posited that the Ombudsman can positively contribute to the creation of an ever closer union, as envisaged in the Preamble to the TEU. By doing so, this chapter approaches the right to good administration as a potential proxy for construing European citizenship and as a means of enhancing popular trust in EU institutions. Building on this, the analysis examines whether in the so-called ‘ombudsprudence’, there are elements favourable to reinforcing citizens’ control over, and participation in, the EU decision-making process. In conclusion, it is argued that the Ombudsman has become a key actor of the European integration process and that it has done so through a broad vision of its mission, which was originally only devoted to pursuing issues of maladministration, but which is slowly moving towards increasing and fostering citizenship rights. Ultimately, it is now time for the principle of mutual trust, originally devised by the CJEU to guarantee the free movement of goods in the absence of harmonisation measures,20 to start being considered as underpinning the relationship between citizenship and institutions. Indeed, despite citizen participation being upgraded in EU primary law, thereby leading to an improvement of the citizens’ involvement in the EU decision-making process, the ombudsprudence analysed in this chapter demonstrates that this should be accompanied by a genuine culture of good administration on the part of EU institutions.

II.  The European Ombudsman as a Guardian of the Right to Good Administration and European Citizenship: A Win-Win Situation The Ombudsman’s powers have been inspired by those of similar bodies in Scandinavian countries well before the EU was born.21 Tasked with the duty to 19 A Tsadiras, ‘The European Ombudsman’s Remedial Powers: An Empirical Analysis in Context’ (2013) 38 European Law Review 52. 20 CJEU, Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein, judgment of 20 February 1979. 21 H Gammeltoft-Hansen, ‘Trends Leading to the Establishment of a European Ombudsman’ in P Nikiforos Diamandouros (ed), The European Ombudsman: Origins, Establishment, Evolution (Luxembourg, Office for Official Publications of the European Communities, 2005); HCH Hofmann, ‘The Developing Role of the European Ombudsman’ in HCH Hofmann et al (eds), Accountability in the EU: The Role of the European Ombudsman (Cheltenham, Edward Elgar, 2017); P Leino, ‘The Wind

94  Marco Inglese hear and make good cases of alleged maladministration perpetrated by EU institutions, agencies and bodies, the Ombudsman has acquired a distinct position in the Union’s system of checks and balances as well as in its institutional framework.22 Regarding the former, this is because there is no locus standi for EU institutions to bring a case before the Ombudsman, and because the Ombudsman can ­trigger strategic inquiries ex officio.23 Regarding the latter, the Ombudsman does not feature on the list of EU institutions in Article 13 TEU. Yet, the Ombudsman has been building a fruitful dialogue with EU institutions through its recommendations and decisions. At the same time, the fact that the Ombudsman is not an EU institution could in principle entail that it cannot be targeted by an action for failure to act (Article 265 TFEU) or by an action for damages (Article 340 TFEU).24 The legal framework applicable to the Ombudsman’s institutional position is as follows. According to a joint reading of Article 24 TEU, Article 228 TFEU and Article 43 of the Charter, the Ombudsman can be approached by any individual irrespective of citizenship and by any legal entity residing or having its registered office in a Member State. Therefore, there is no distinction between EU citizens and third-country nationals as long as they can be victims of maladministration perpetrated by EU institutions, bodies and agencies, and this also applies to the latter’s external relations.25 The procedural conditions for lodging a complaint before the Ombudsman encompass the following elements: (a) the litigated issue has not been brought before any court of law; (b) an applicant has two years to lodge a complaint; and (c) the complaint must be preceded by the appropriate administrative steps between the complainant and the targeted institution.26 When acting in its judicial role, the CJEU is excluded from the Ombudsman’s is in the North: The First European Ombudsman (1995–2003)’ (2004) 10 European Public Law 333; A Peters, ‘The European Ombudsman and the European Constitution’ (2005) 42 CML Rev 697; J Söderman, ‘A Thousand and One Complaints: The European Ombudsman en Route’ (1997) 3 European Public Law 351. 22 See generally M Inglese and T Binder, ‘The European Ombudsman’ in D Levi-Faur et al (eds), Democratic Empowerment in the European Union (Cheltenham, Edward Elgar, 2018). 23 A Tsadiras, ‘Unravelling Ariadne’s Thread: The European Ombudsman’s Investigative Powers’ (2008) 45 CML Rev 757. 24 GC, Case T-209/00, Frank Lamberts v European Ombudsman, judgment of 10 April 2002; CJEU, Case C-234/02 P, European Ombudsman v Frank Lamberts, judgment of 23 March 2004; GC, Case T-217/11, Claire Staelen v European Ombudsman, judgment of 29 April 2015; CJEU, Case C-337/15 P, European Ombudsman v Claire Staelen, judgment of 4 April 2017. See also M Suksi, ‘Case C-234/02 P, European Ombudsman v Frank Lamberts’ (2005) 42 CML Rev 1765; N Vogiatzis, ‘The EU’s Liability Owing to the Conduct of the European Ombudsman Revisited: European Ombudsman v Staelen’ (2018) 55 CML Rev 1251. 25 See also M Inglese, ‘EU Agencies’ External Activities and the European Ombudsman’, in HCH Hofmann et al (eds), The External Dimension of EU Agencies and Bodies (Cheltenham, Edward Elgar, 2019). 26 See Article 2(4) of the Statute of the European Ombudsman: ‘A complaint shall be made within two years of the date on which the facts on which it is based came to the attention of the person lodging the complaint and must be preceded by the appropriate administrative approaches to the institutions and bodies concerned.’ See an earlier reflection on these matters in A Tsadiras, ‘Navigating through the Clashing Rocks: The Admissibility Conditions and the Ground for Inquiry into Complaints by the European Ombudsman’ (2007) 26 Yearbook of European Law 157.

Fostering Citizens’ Control Over and Participation in EU Democratic Life  95 jurisdiction. According to the Ombudsman’s Annual Report 2020, which was published in May 2021, a considerable amount of the ombudsprudence handed down to date regarding ex parte complaints pertains to access to documents and secrecy, as well as EU staff complaints against EU institutions, bodies and agencies in their capacity as employees.27 However, the Ombudsman can autonomously decide to initiate a strategic inquiry into alleged maladministration practices. These ex officio investigations have concerned various aspects, such as ECIs,28 the opaqueness of trilogue negotiations,29 the above-mentioned ‘revolving doors’ problem,30 fundamental rights protection in joint return operations,31 access to documents held by the Council’s preparatory bodies32 and so on. An investigation regarding how and by whom the Council Presidency is sponsored should also be placed among ex parte complaints.33 It is also important to note that these investigations concern maladministration by the full spectrum of EU institutions. However, whereas the Annual Report for 2020 indicates that the Commission is always the most targeted institution (210 inquiries, amounting to 56.8% of cases), the Council is either not present or is included in the ‘other’ category (41 inquiries, amounting to 11.1% of cases). This can be explained by two considerations. On the one hand, the Council is significantly less involved in dealing with citizens, thereby making it less exposed to potential issues of maladministration. On the other hand, it could be argued that citizens take the Council to the Ombudsman far less frequently because its members are indirectly accountable through national political and legal mechanisms. Nevertheless, in the 2020 Annual Report, the incumbent Ombudsman, Mrs Emily O’Reilly, pointed out that: ‘The Ombudsman has opened several inquiries aimed at improving the transparency of decision making, particularly by Member States in the Council … ensuring that citizens know what decisions governments are taking on their behalf in Brussels. The Ombudsman continues to encourage the Council to pursue its efforts to improve legislative transparency.’34

27 See https://www.ombudsman.europa.eu/en/annual/en/141317, published on 17 May 2021. This report presents 394 complaint-based inquiries, among which 96 (25%) concern transparency and accountability (eg, access to information and documents), 42 (11%) good management of personnel issues, 51 (13%) recruitment and 38 (10%) respect for fundamental rights. 28 Decision of the European Ombudsman closing her own-initiative inquiry OI/9/2013/TN concerning the European Commission, 4 March 2015. 29 Decision of the European Ombudsman setting out proposals following her strategic inquiry OI/8/2015/JAS concerning the transparency of trilogues, 12 July 2016. 30 Decision closing the inquiry based on complaints 2077/2012/TN and 1853/2013/TN concerning the European Commission’s handling of the ‘revolving doors’ phenomenon, 9 September 2016. 31 Decision of the European Ombudsman closing her own-initiative inquiry OI/9/2014/MHZ concerning the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), 4 May 2015. 32 Decision in strategic inquiry OI/2/2017/TE on the transparency of the Council legislative process, 15 May 2018. 33 Recommendation of the European Ombudsman in Case 1069/2019/MIG on sponsorship of the Presidency of the Council of the European Union, 6 January 2020. 34 ibid para 2.5.

96  Marco Inglese An important development in the Ombudsman’s role has been the codification of the right to good administration in the Charter. Indeed, in the absence of such codification, the first Ombudsman – Mr Jacob Söderman – had to fill in the gaps of the concept of maladministration by identifying conducts that amounted to maladministration. Article 41 of the Charter now provides a detailed list of rights that constitute the full spectrum of good administration: the right to be heard, the right of access to one’s file, and the duty to state reasons. Furthermore, every person has the right to have the EU make good any damage caused by its institutions. At the current stage of development, the use and interpretation of Article 41 of the Charter remains somewhat under-explored. Although the Charter right to good administration is certainly a parameter of validity of any EU legislation,35 its potential direct effect, either vertical or horizontal, has so far not been invoked.36 In this respect, the culture of good administration cultivated by the Ombudsman has inspired the adoption of the Code of Good Administrative Behaviour (this is examined further in section IV below). Yet while some authors doubt the status of Article 41 of the Charter as a fullfledged right and prefer to downgrade it to that of a mere principle,37 with the consequence of making it non-justiciable, this provision entitles citizens and every other individual present in the EU to an autonomous ground of review of every legal act that impacts their personal sphere and negatively affects their interests. In other words, irrespective of its status as a right or a principle, Article 41 of the Charter functions as a proxy which can be used by the Ombudsman to evaluate whether conduct can amount to maladministration. However, since the Ombudsman is not a judge and thus cannot annul a legal act, it can call on EU institutions to be respectful of good administration in their day-to-day practice, thereby improving their relationship with citizens. If the right to good administration informs the relationship between citizens and EU institutions, this cultivates an institutional environment that fosters mutual trust and one where the principles of sincere cooperation and institutional balance go hand in hand. In particular, the very fact that a citizen can lodge a complaint before the Ombudsman and that the Ombudsman can recommend to an EU institution to modify its behaviour – provided that an issue of maladministration has been proved – is significant insofar as citizens can indirectly influence institutions’ behaviour through a body that is not an institution. Moreover, a recent study has highlighted that the query process,

35 CJEU, Case C-263/19, T Systems, judgment of 14 May 2020; Case C-230/18, PI, judgment of 8 May 2019; Case C-419/14, Webmind, judgment of 17 December 2015; Joined Cases C-141/12 and C-372/12, YS, judgment of 17 July 2014; Case C-358/16, UBS Europe, judgment of 13 September 2018. 36 However, in LM (Case C-219/20 pending), the referring court posed the following question: ‘Must Article 6 of the European Convention on Human Rights and Article 41(1) and the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union be interpreted as precluding a provision of national law which provides for a mandatory five-year limitation period in the case of an offence committed as a result of negligence in administrative-offence proceedings?’ 37 R Bousta, ‘Who Said There is a “Right to Good Administration”? A Critical Analysis of Article 41 of the Charter of Fundamental Rights of the European Union’ (2013) 19 European Public Law 481.

Fostering Citizens’ Control Over and Participation in EU Democratic Life  97 according to which the national ombud office can send a query to the European Ombudsman, who, in turn, transfers it to the competent institution, can also be beneficial in terms of citizen participation.38 In particular, being modelled on the well-known preliminary reference procedure, the query system is a mechanism of non-judicial cooperation whose outcome, albeit non-binding, is extremely important. Indeed, it has been shown that the Commission’s replies can be helpful as a means of identifying potential maladministration practices in advance, while its flexibility contributes to the speediness of the procedure, thereby avoiding having to resort to court proceedings. Despite the setbacks discussed later on in this chapter, this could contribute to fostering a relationship based on mutual trust and the principle of good administration enshrined in Article 41 of the Charter. In this sense, one of the Ombudsman’s key contributions is the ex officio investigation on the transparency of trilogues, which is the focus of the following section.

III.  Fostering Citizens’ Participation The system of checks and balances in the EU’s institutional framework is rather different from those of its Member States.39 Indeed, whereas the EP enjoys broad powers in terms of controlling the Commission, ranging from the latter’s composition to the possibility of calling for its resignation,40 similar dynamics are lacking in the relationship between the EP and the other institutions. The democratically elected EP exercises control over the Commission through the motion of censure under Article 234 TFEU, but has no similar power in relation to the Council, let alone the European Council.41 Bearing in mind all the other limitations summarised in section I above, the question arises as to how citizens can control the functioning of EU institutions. Other than the channels of EU representative democracy, which are principally rooted in EP elections, those of participatory democracy also enable citizens to engage in EU governance in search of greater institutional

38 N Athanasiadou and N Vogiatzis, ‘The EU Queries: A Form of Extra-judicial Preliminary Reference in the Field of Maladministration?’ (2021) 22 German Law Journal 441. 39 See a general discussion in JP Jacqué, ‘The Principle of Institutional Balance’ (2004) 41 CML Rev 383; M Chamon, ‘The Institutional Balance, an Ill-Fated Principle of EU Law? (2015) 21 European Public Law 371. 40 See, however, the studies supporting the idea of entitling citizens directly to elect the President of the Commission: F Decker and J Sonnicksen, ‘An Alternative Approach to European Union Democratization: Re-examining the Direct Elections of the Commission President’ (2011) 46 Government and Opposition 168; MT Karaygit, ‘The Semi-presidential EU Governmental System as a Constitutional Design’ (2020) 67 International Relations 97; S Fabbrini, ‘The Dual Executive of the European Union: A Comparative Federalism’s Approach’, paper submitted at the 15th EUSA Biennial Conference, 4–6 May 2017. 41 Specifically, Article 15(6)(d) TEU only prescribes that the President of the European Council shall present a report to the EP after each of the meetings of the European Council, while according to Article 229 TFEU, both the Council and the European Council shall be heard by the Parliament.

98  Marco Inglese balance in the Union’s constitution.42 The involvement of the Ombudsman is critical in this respect. Although appointed by the EP, the Ombudsman is independent and performs its duties without receiving any instructions. As indicated above, while the Commission is the most targeted institution, followed by the EP, the most interesting cases concern the Council due to its intergovernmental character and the high degree of impact that it has on the outcomes of EU legislative processes. The Ombudsman launched a strategic inquiry into the transparency of the Council legislative process by stating that ‘in order for European citizens properly to exercise their democratic right to participate in the EU’s decision-making process, and hold those involved to account, legislative deliberations must be sufficiently transparent’.43 This is an important requirement given that the preparatory meetings are held behind closed doors, thereby jeopardising the right to participate.44 Also, Article 10(3) TEU requires that ‘every citizen shall have the right to participate in the democratic life of the Union’ and that ‘decisions shall be taken as openly and as closely as possible to the citizen’. Whereas the ‘closeness’ of decision-making to the citizens engages the principle of subsidiarity, transparency could be understood as a way to strengthen citizens’ democratic participation. In this respect, the Ombudsman criticised the Council’s failure to record the official positions expressed by Member States’ representatives in the Council’s Committee of Permanent Representatives (COREPER). This is crucial because, according to Article 10(2) TEU, Member States’ representatives in the Council of the European Union and the European Council are ‘democratically accountable either to their national Parliaments, or to their citizens’. So, there seems to exist a tenuous link between Article 10(2) and Article 10(3) TEU to the extent that the former does not make a direct connection with citizens as the latter seemingly requires. In order to address this, the Ombudsman put forward three recommendations: i) recording the identity of Member States’ representatives when they express their positions; ii) developing actions on how to search for LIMITE documents, that is, documents produced in the course of an EU legislative procedure; and iii) how to review the need for a LIMITE label. Finding that the Council has committed maladministration, the Ombudsman suggested a six-pack of measures: 1) conduct a review of how to make documents accessible; 2) adopt guidelines on the documents that should be produced by the Council’s preparatory bodies; 3) update the Council’s rules of procedure; 4) list all documents in a public register; 5) improve the searchability of documents; and 6) develop a webpage for each legislative proposal.

42 D Johnson, ‘Institutional Balance as Constitutional Dialogue: A Republican Paradigm for the EU’ in M Derlén and J Lindholm (eds), The Court of Justice of the European Union: Multidisciplinary Perspectives (Oxford, Hart Publishing, 2018) 115–40. 43 Decision in strategic inquiry OI/2/2017/TE on the transparency of the Council legislative process, 1. 44 D Curtin et al, ‘Transparency in the EU Council of Ministers: An Institutional Analysis’ (2014) 20 European Law Journal 1.

Fostering Citizens’ Control Over and Participation in EU Democratic Life  99 The Council did not respond. The Ombudsman then brought this matter before the EP through a special report.45 The EP rapidly backed the Ombudsman by adopting a resolution by a large majority.46 In it, the EP highlighted its own high level of transparency, recalled that according to Article 16(8) TEU the Council must meet in public when deliberating on draft legislative acts, and, consequently, condemned the Council’s failure to reply to the Ombudsman’s recommendations. At the time of writing, what the Council will do to take these recommendations and the EP’s resolution into account is unknown. Moreover, in April 2020, the Ombudsman declared dissatisfaction with the lack of transparency of the Council’s decision-making process in the field of fisheries.47 The Council’s potential response to this is equally unknown. Although these setbacks may be interpreted as rendering the Ombudsman powerless vis-a-vis the Council, before drawing such an inference, it is necessary to recall the institutional dynamics at play here. Indeed, while the Ombudsman is not an EU institution, it can refer instances of noncompliance with its decisions and recommendations to the EP. The relationship between the Ombudsman and the EP can therefore serve as a means of addressing such instances. However, the principle of sincere cooperation would militate in favour of the Council finding a way to comply with the Ombudsman’s recommendations, non-binding as they are. The Ombudsman has keenly been pursuing the agenda of promoting transparency in decision-making processes, which is why trilogues have also been an important target of its investigations. Trilogues are informal meetings whereby the Council’s and the EP’s officials, assisted by those of the Commission, seek to reach an agreement on a proposed text, which is to be subsequently voted on and adopted. The lack of transparency of trilogues, and the impossibility of having full access to the participating EU institutions’ internal documents, have already been the object of a harsh legal dispute, leading the General Court to order access to some parts of a trilogue document to be granted.48 Furthermore, considering the specific purposes of trilogues and the fact that Regulation 1049/2001 on Public Access to EU Documents49 stipulates that access can be denied for the sake of preserving a public interest, the Ombudsman is well aware that more transparency can paradoxically be deleterious when extremely delicate matters are at stake, such as those concerning military and anti-terrorism actions.50 This means 45 Special Report of the European Ombudsman in strategic inquiry OI/2/2017/TE on the transparency of the Council legislative process, 17 May 2018. 46 EP, Resolution of 17 January 2019 on the Ombudsman’s strategic inquiry OI/2/2017 on the transparency of legislative discussions in the preparatory bodies of the Council of the EU (2018/2096(INI)). 47 Decision in Case 640/2019/TE on the transparency of the Council of the EU’s decision-making process leading to the adoption of annual regulations setting fishing quotas, 29 April 2020. 48 GC, Case T-540/15, Emilio de Capitani v European Parliament, judgment of 22 March 2018. See more in ch 6 by Natasa Athanasiadou in this volume. 49 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, [2001] OJ L145/43. 50 Decision in Case 1029/2020/DL on the European External Action Service’s refusal to give public access to documents containing information on Member States’ troop contributions to EU missions

100  Marco Inglese that a balance needs to be struck between transparency, which enhances citizen participation, and secrecy, which hinders it. To address this, the Ombudsman has formulated the following eight proposals, which aim to ensure: a) the public availability of the calendar of trilogues; b) that the Council and the EP make their positions available before trilogues start; c) the publication of trilogue agendas; d) the availability of the four-column document containing the agreed text; e) that minutes are made public; f) the disclosure of the list of officials politically responsible for the decisions taken during trilogues; g) that a list of documents used during trilogues is made available; and h) the preparation of a joint database.51 Although one could counter-argue that targeting an informal meeting may go beyond the Ombudsman’s mandate and that the initial lack of cooperation of the Council was a sign of weakness, it is important to note that Mrs O’Reilly affirmed in the 2020 Annual Report that her recommendations, which were ‘overwhelmingly supported by the European Parliament and many national parliaments’, led to ‘small but concrete improvements’ because ‘the Council agreed to start proactively publishing progress reports on negotiations on draft laws, the Council mandate for negotiations with the European Parliament, and the calendar for trilogue meetings’.52 Thus, it seems that the soft influence of the various actors involved, including the Ombudsman, persuaded the Council to modify its behaviour. Another important strand of the Ombudsman’s activity in fostering citizens’ participation concerns its strategic inquiries into the Commission’s practices regarding ECIs. As will be detailed in Chapters 11 and 12 in this volume, ECI Regulation 211/2011 was replaced with ECI Regulation 788/2019, owing not only to the copious case law of the General Court and the European Court of Justice,53 but also, to some extent, to the Ombudsman’s strategic inquiries.54 In this regard, the Ombudsman suggested that the Commission should allow EU citizens to sign ECIs regardless of where they reside, to ameliorate the level of public debate, to involve the Parliament and the Council, and, most importantly, to explain more thoroughly and more intelligibly the reasons why an ECI has or has not been registered. The aforementioned analysis seems to confirm two conclusions. First, whereas both the Council and the Ombudsman have an indirect link with the representation and operations, 19 October 2020. See especially para 20 thereof: ‘Concerning the EEAS’s refusal to grant access to information about individual troop contributions by Member States, it should be noted that EU institutions enjoy wide discretion when determining whether the public interest as regards public security, defence and military matters, and international relations could be undermined by disclosing certain information.’ To support this argument, the Ombudsman’s decision recalls GC Case T-644/16, ClientEarth, judgment of 11 July 2018, paras 23–25. 51 Decision of the European Ombudsman in Case OI/8/2015/JAS setting out proposals following her strategic inquiry OI/8/2015/JAS concerning the transparency of trilogues, 12 July 2016. 52 European Ombudsman, ‘Annual Report 2020’, 17 May 2021, 15. 53 M Inglese, ‘Recent Trends in European Citizens’ Initiatives: The General Court Case Law and the Commission’s Practice’ (2018) 24 European Public Law 335. 54 European Ombudsman, Closing Note on the Strategic Initiative with the European Commission on the revision of the European Citizens’ Initiative (ECI) Regulation (SI/6/2017/KR), 28 May 2019.

Fostering Citizens’ Control Over and Participation in EU Democratic Life  101 of citizens – the former as a rule being composed of Member States’ sectoral ministers and the latter being appointed by the EP – their institutional dialogue has been informed by a dual attitude. While the Ombudsman deemed it crucial to investigate the Council’s law-making practice, the Council deemed it acceptable not to respond to the Ombudsman’s suggestions. This represents an unprecedented clash. Importantly, the fact that the Ombudsman is not an EU institution under Article 13 TEU does not imply that the relationship between the Ombudsman and the Council falls outside the scope of Article 4(3) TEU, which establishes the principle of sincere cooperation. Furthermore, the fact that the EP rapidly backed the Ombudsman’s report is a clear sign of institutional approval. In other words, although the Ombudsman’s recommendations are not legally binding and can be disregarded, the high rates of compliance reported in the Ombudsman’s annual reports (79% in 2019, 77% in 2018 and 81% in 2017) demonstrate that EU institutions as a rule comply with the Ombudsman’s decisions.55 A strict literal interpretation of the Ombudsman’s legal mandate would discourage such a proactive stance towards fostering citizens’ participation. Yet since the Ombudsman is a personalised body, much depends on the person in charge. So, while the first two Ombudsmen – Mr Jacob Söderman (1995–2003) and Mr Nikiforos Diamandouros (2003–13) – had to face the novelty of their office, prepare the statute and put flesh on the bones of the notion of maladministration, the subsequent holders of the office enjoyed more room for intervention, as shown by the dramatic increase in the number of strategic inquiries undertaken since Mrs O’Reilly took office. This could be considered as an indicator of a refocused agenda, which is decisively aimed not only at promoting EU institutions’ accountability to a greater extent than before, but also, relatedly, to improving the conditions under which citizens can participate in EU democratic governance.

IV.  Fostering Citizens’ Control Whereas the Treaties refer to citizens’ participation several times, its legal meaning is still unclear. Article 11 TEU affirms that ‘[t]he institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society’, while Article 15 TFEU confirms that ‘[i]n order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies shall conduct their work as openly as possible’ and that ‘[e]ach institution, body, office or agency shall ensure that its proceedings are transparent’. From these provisions, it could be inferred that transparency and openness 55 The 2020 Annual Report does not state the percentage of acceptance rate but affirms, at para 5.5.2, that ‘the EU institutions reacted positively to 93 out of the 118 proposals the Ombudsman made to correct or improve their administrative practices. Out of 17 institutions to which the Ombudsman made proposals, 10 complied fully with all solutions, suggestions and recommendations’. This amounts to approximately 79%.

102  Marco Inglese go hand in hand in order to allow control to be exercised over the said EU actors’ ­behaviour. Who is in charge of this control is a rather different issue. As stated in section I above, the Commission can control the Member States’ behaviour through the action for failure to fulfil an obligation (Article 258 TFEU) and EU institutions can control each other through the action for failure to act (Article 265 TFEU), while the action for annulment (Article 263 TFEU) can be used to control the legality of secondary EU law. Hence, the notion of control seems to be essentially attached to judicial dynamics, provided that procedural requirements are met. The importance of ex parte complaints in comparison to ex officio investigations should not be under-estimated, because consistent ombudsprudence has paved the way for the adoption by the Commission of the European Code of Good Administrative Behaviour on 13 September 2000.56 This Code, which has voluntarily been adopted by EU institutions, fleshes out the right to good administration enshrined in Article 41 of the Charter,57 setting out concrete practices to be adhered to by the institutions in their day-to-day relationship with citizens. It lists several principles to be respected by civil servants, such as those of integrity and objectivity, further spelt out inter alia in terms of fairness and courtesy. Lastly, Article 26 of the Code affirms that ‘[a]ny failure of an institution or official to comply with the principles set out in this Code may be the subject of a complaint to the European Ombudsman’, henceforth squaring the circle between the right to good administration and the right to lodge a complaint before the Ombudsman. Citizens’ control vis-a-vis EU institutions’ administrative behaviour has been shaped by the Ombudsman itself. Whereas the Code and Article 41 of the Charter are coeval, with the Charter later becoming legally binding, they both constitute a powerful theoretical tool for assessing the Ombudsman’s review of EU institutions’ maladministration. Yet, in practice, the situation is quite different. To date, there has only been one Ombudsman decision that makes explicit reference to the Code. Namely, in the Decision on the handling of information requests by EU delegations,58 an EU citizen sent a request for information to the EU Delegation to Peru and did so in the German language. The EU Delegation replied by asking for the request to be resubmitted in English or French, while the civil servant in charge of replying to the request failed to disclose his or her identity. After the Ombudsman’s intervention, the EU Delegation complied with the obligation set forth in the Code. Although this may seem a trivial example, it shows the culture of good administration which the Ombudsman is cultivating vis-a-vis EU institutions and bodies. This also confirms that individuals who get in touch with EU institutions and bodies can rely on the speedy intervention of the Ombudsman in order to exercise control over the alleged misconduct. 56 The Code can be found at www.ombudsman.europa.eu/en/publication/en/3510. 57 J Mendes, ‘Good Administration in EU Law and the European Code of Good Administrative Behaviour’ (2009) 9 EUI Working Paper Law 1–19. 58 Decision in Case 2209/2017/TN on the handling of information requests by EU Delegations, 4 September 2018.

Fostering Citizens’ Control Over and Participation in EU Democratic Life  103

V.  Concluding Remarks The role of the European Ombudsman in promoting an institutional environment that fosters the right to good administration for every individual who liaises with EU institutions is demonstrated by the high rates of compliance with the Ombudsman’s recommendations and decisions by the EU institutions, agencies and bodies targeted. The strategic inquiries conducted by the Ombudsman – among them those on the ‘revolving doors’ problem, respect for fundamental rights, secrecy in trilogues, and ECIs – coupled with the more and more incisive ombudsprudence on ex parte complaints jointly contribute to improving citizens’ control and participation in the EU decision-making process. Nowadays, there is hardly any aspect of the EU’s institutional life that has not been scrutinised by the Ombudsman. Additionally, although one can be sceptical that these high rates of compliance have any lasting institutional effects, it is also true that such compliance is a manifestation of the principle of sincere cooperation. This is even more significant because the Ombudsman is not an EU institution. Indeed, the Ombudsman’s authority is grounded on the persuasiveness of its recommendations, which need to be intelligible and well balanced to enable spontaneous compliance by their addressees. Yet, further empirical research is required to demonstrate beyond any reasonable doubt that the Ombudsman is fostering citizens’ control and participation in the EU legal order. The fact that Mrs O’Reilly was reappointed as the Ombudsman in December 2019 for another five-year term is a welcome development considering that she has demonstrated the willingness to use the full array of the Ombudsman’s powers, including the submission of special reports to the EP in the event that an EU institution refuses to reply to the Ombudsman’s requests or suggestions. In conclusion, if it is true that the European integration project has been following a non-linear path and has been confronting unforeseeable challenges, citizens should now find their place in the EU constitutional architecture. The Ombudsman has contributed to this process by enabling citizens to become more involved in EU democratic governance by confronting EU institutions and raising their awareness of the right to good administration, which is itself the key enabler of participation and control.

104

6 What Role for Citizens in Ongoing Legislative Processes? The Legal Implications for Transparency and Access to Documents NATASA ATHANASIADOU*

I. Introduction The European Union (EU) is founded on representative democracy (Article 10(1) of the Treaty on European Union (TEU)). However, participatory democracy is also enshrined in the EU Treaties, thus constituting a complementary source of democratic legitimacy.1 Citizens have the right to participate in the democratic life of the EU (Article 10(3) TEU). As a necessary precondition, decisions have to be taken as openly and as closely as possible to the citizen (Article 10(3) TEU). Ensuring the transparency of public governance serves the good functioning of both representative and participatory democracy. More specifically, representative democracy is based on citizens’ right to hold their representatives accountable for the political choices made on their behalf.2 Key political choices are formalised in EU legislation. Effective political accountability presupposes citizens’ ability to find out the considerations that underpin EU legislative action and how their representatives have influenced the final legislative texts.3 * This chapter is written in a private capacity and does not reflect the official position of the European Commission. 1 See on the scope of Article 10 TEU: J Mendes, ‘Participation and the Role of Law after Lisbon: A Legal View on Article 11 TEU’ (2011) 48 CML Rev 1849; V Cuesta Lopez, ‘The Lisbon Treaty’s Provisions on Democratic Principles: A Legal Framework for Participatory Democracy’ (2010) 16(1) European Public Law 123; A Kutay, ‘Limits of Participatory Democracy in European Governance’ (2015) 21 European Law Journal 803; F Mendez and M Mendez, ‘The Promise and Perils of Direct Democracy for the European Union’ (2017) 19 Cambridge Yearbook of European Legal Studies 48. 2 See the analysis of the different democratic theories in M Nettesheim, ‘Article 11 EUV’ in E Grabitz et al (eds), Das Recht der EU (Munich, CH Beck, 2017) para 1. 3 Joined Cases C-39/05 P and C-52/05 P, Sweden and Turco v Council of the European Union, judgment of 1 July 2008, EU:C:2008:374, para 46.

106  Natasa Athanasiadou Participatory democracy introduces certain rights for citizens to shape policy and decision-making.4 New technologies and the instant sharing of information and views on social media have changed the way in which the general public can express their opinions and exert pressure on their representatives in real time in an ongoing legislative procedure.5 However, in order for this to happen, citizens, representative associations and non-governmental organisations (NGOs) need the right information at the right time, which is before a political decision has been formalised and before a legislative text is set in stone. Effective citizen scrutiny and participation therefore presuppose transparency and timely access to information. At the same time, representative democracy also guarantees that elected representatives are empowered to take decisions on behalf of the whole of the population that they represent. Interest representatives and citizens have the right to express their views and be heard, but the final political choices lie in the hands of public office holders, who have to represent the general public interest and not just the voice of those that might have closer ties with the decision-makers. This democratic quest to serve the general public interest has led to the conceptualisation of a necessary ‘space to think’ for those who are involved in the process of negotiating and making political choices.6 The key question is how to strike the right balance between preserving the effectiveness of the EU legislative process and the necessary ‘space to think’ of EU institutions on the one hand, and ensuring transparency and effective citizen participation on the other. In two landmark judgments, ClientEarth and De Capitani,7 the Grand Chamber of the European Court of Justice (ECJ) and the General Court (GC), respectively, addressed the conditions for the exercise of the fundamental right of access to documents in ongoing legislative procedures, particularly in the stages of those procedures that are characterised by a certain opaqueness on the part of EU institutions.8 These specific stages concern the process of proposal-making by the European Commission and the so-called trilogues, tripartite negotiations between the European Parliament (EP), the 4 See F Sipala, ‘La Vie Démocratique de l’Union’ in G Amato et al (eds), Genèse et Destinée de la Constitution Européenne (Brussels, Bruylant, 2007) 367; M Dougan, ‘What are We to Make of the Citizens’ Initiative?’ (2011) 48 CML Rev 1807; A Alemanno and J Organ (eds), Citizen Participation in Democratic Europe: What Next for the EU? (Colchester, ECPR Press/Latham, MD, Rowman & Littlefield, 2021). 5 See also A Alemanno, ‘Unpacking the Principle of Openness in EU Law: Transparency, Participation and Democracy’ (2014) 39(1) European Law Review 72, 82. 6 Decision of the European Ombudsman setting out proposals following her strategic inquiry OI/8/2015/JAS concerning the transparency of trilogues, 12 July 2016, para 29. 7 Case T-540/15, De Capitani v European Parliament, judgment of 22 March 2018, EU:T:2018:167. 8 See the analyses in D Curtin and P Leino, ‘In Search of Transparency for EU Law-Making: Trilogues on the Cusp of Dawn’ (2017) 54(6) CML Rev 1673; D Wyatt, ‘Is the Commission a “Lawmaker”? On the Right of Initiative, Institutional Transparency and Public Participation in Decision-Making: ClientEarth’ (2019) 56(3) CML Rev 825; GJ Brandsma et al, ‘Inside the Black Box of Trilogues: Introduction to the Special Issue’ (2021) 28 Journal of European Public Policy 1; B Bodson, ‘To What Extent Can the CJEU Contribute to Increasing the EU Legislative Process’ Transparency?’ (2021) 9(1) Politics and Governance 272.

What Role for Citizens in Ongoing Legislative Processes?  107 Council and the Commission. In the past, the GC had acknowledged the right of EU institutions to a protected ‘space to think’, thus accepting limitations on access to documents in ongoing decision-making procedures that take place in preparation of a legislative act.9 The judgments in ClientEarth and De Capitani mark a change in the case law by strengthening the right of access to documents and citizen participation in institutional decision-making. These judgments have been met with enthusiasm in the literature and constitute important milestones for EU transparency.10 However, it is open to debate whether this new approach strikes the right balance between the principle of transparency on the one hand and the effectiveness of the decisionmaking process on the other. The aim of this chapter is to examine this balancing exercise. It is argued here that this recent case law delegitimises EU institutions’ use of non-disclosure of early drafts or compromises as a means of securing ‘protected space to think’ in the early stages of the EU legislative process. This means that there was no balancing exercise in the judgments’ outcome, but that transparency instead clearly outweighed any institutional considerations about the effectiveness of the decision-making process. This outcome was inevitable because of the way in which certain parts of the legislative process are structured and operate. As it is not the role of a court to make policy recommendations on how to improve the overall transparency of a process, but to solve a dispute, the ECJ and the GC could either ‘sacrifice’ or ‘save’ transparency. It was difficult to reach a middle ground, since they were requested to decide whether to uphold the refusal of access to documents or not. However, retaining some protected space to think is legitimate and necessary for the effectiveness of the decision-making process,11 although it should not be to the detriment of enabling transparency and effective citizen participation. This chapter therefore argues that the only way to reconcile the two interests is through the institutionalisation of proactive transparency. The legal analysis that follows is based on EU primary and secondary law provisions, recent Court of Justice of the European Union (CJEU) case law, recommendations of the European Ombudsman, publicly available institutional documents and the academic literature. The chapter also considers the evolving institutional practice and makes several policy recommendations with a view to answering this book’s overarching question of whether further institutionalisation of the transparency modalities of the EU legislative process is necessary to enable effective transnational citizen participation beyond representative means. Special

9 Joint Cases T-424/14 and T-425/14, ClientEarth v Commission, judgment of 13 November 2015, EU:T:2015:848. 10 M Hillebrandt and P Leino-Sandberg, ‘Administrative and Judicial Oversight of Trilogues’ (2021) 28 Journal of European Public Policy 53; Wyatt (n 9); M Jäkel, ‘Administrative Präponderanz und Legislative Transparenz in der Unionalen Sekundärrechtsetzung’ (2019) 21 Die Öffentliche Verwaltung 859; J von Achenbach, ‘Transparenz statt Öffentlichkeit und Demokratischer Repräsentation’ (2018) 24 Die Öffentliche Verwaltung 1025. 11 See this necessity questioned in Hillebrandt and Leino-Sandberg (n 10).

108  Natasa Athanasiadou attention is paid to enabling such participation by the general public and not only by organised interests and expert communities. The chapter is structured as follows. First, the legal framework on transparency and access to documents is introduced (section II). This is followed by the presentation of the ECJ’s ClientEarth judgment on transparency in proposal-making (section III) and the GC’s De Capitani judgment on transparency of trilogues (section IV). These judgments are then critically assessed, taking into account the European Ombudsman’s recommendations and recent institutional developments (section V). The chapter concludes with policy recommendations on how to balance some institutional space to think while ensuring effective transparency and citizen participation (section VI).

II.  The Legal Framework on Transparency and Access to Documents Transparency is a multidimensional concept, which, as mentioned in section I, appears in the EU Treaties as a recurring requirement, and is linked to various EU law principles and fundamental rights. Conceptually, transparency and citizen participation constitute the main facets of ‘open’ governance.12 The Treaty on the Functioning of the European Union (TFEU), which contains more detailed rules on the operation of EU institutions, bases the concept of ‘good governance’ on transparent procedures, citizen participation and rules enabling access to documents (Article 15(1) and (3)). The importance of the possibility of access to documents for the transparent functioning of the EU led to its construction as a fundamental right enshrined in the EU Charter of Fundamental Rights (Article 42). In its landmark judgment in Sweden and Turco v Council, the ECJ held that transparency ensured by a public authority in the process of adopting an EU measure, including the possibility of access to documents, contributes to that authority acquiring greater legitimacy and to ensuring that the authority is more accountable to citizens in a democratic system.13 Arguably, transparency should guarantee not only the possibility of access to documents through an application to the EU institutions (ie, ‘reactive transparency’), but should also involve an administration’s duty proactively to publish comprehensive information on its actions in an easily accessible way (ie, ‘proactive transparency’).14 The Treaties explicitly provide for the obligation of the EP and the Council to publish ‘documents 12 J Organ, ‘EU Citizen Participation, Openness and the European Citizens’ Initiative: The TTIP Legacy’ (2017) 54 CML Rev 1713. 13 Sweden and Turco v Council (n 3) para 45. 14 See D Curtin and A Meijer, ‘Does Transparency Strengthen Legitimacy?’ (2006) 11 Information Polity 109. See on the use of terminology Curtin and Leino (n 8), who use the terms ‘proactive’ and ‘passive’ transparency; and Alemanno (n 5) 77, who similarly uses the terms ‘active’ and ‘passive transparency’.

What Role for Citizens in Ongoing Legislative Processes?  109 relating to the legislative procedure’, under the terms laid down in secondary law (Article 15(3) TFEU). The fundamental right of access to ‘documents of the Union’s institutions, bodies, offices and agencies, whatever their medium’ is subject to limitations ‘on grounds of public and private interest’ (Article 15(3) TFEU), as laid down by Regulation (EC) 1049/2001.15 In its first article, this Regulation declares as its key purpose ensuring the widest possible access to documents and the easiest possible exercise of this right. In particular, as regards documents ‘drawn up or received in the course of a legislative procedure’, the Regulation provides that the institutions have to make them in principle directly accessible in their documents’ registries, subject to certain limitations that are the same as for the right to access to documents (Articles 2(4) and 12 of Regulation (EC) 1049/2001). Recital 6 of the Regulation states that wider access should be granted to legislative documents, while preserving the effectiveness of the institutions’ decision-making process. This recital therefore justifies some protected ‘space to think’ on the grounds of effectiveness. For their other documents, the institutions have to make them accessible to the public in electronic form or through a register as far as possible (Article 12(1) of Regulation (EC) 1049/2001). The Regulation thus renders the institutions’ obligations of ‘proactive transparency’ more specific. The effectiveness of the decision-making process is acknowledged as a legitimate ground to limit proactive transparency. Article 4 of this Regulation specifies the limitations of the right of access to documents, which are construed as ‘exceptions’ to the rule that, by default, access to a document should be granted. According to established case law, these exceptions are to be interpreted narrowly.16 Among these exceptions, the first sub-paragraph of Article 4(3) of the Regulation provides that access to a document, drawn up by an EU institution for internal use, which relates to a matter where the decision has not been taken by the institution, is to be refused if disclosure of that document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in its disclosure. As will be shown later in this chapter, this exception has been relied on by the Commission in order to refuse access to a draft impact assessment while the proposal-making process was still ongoing, and by the EP in order to restrict access to provisional compromise documents while inter-institutional negotiations were still ongoing. When EU institutions decide to refuse access to a document based on one of the enumerated exceptions, they often do not base their refusal on a specific and individual assessment of the document at stake, but on so-called general presumptions

15 Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43. 16 Case C-266/05 P, Sison v Council, judgment of 1 February 2007, EU:C:2007:75, para 63; Sweden and Turco v Council (n 3) para 36; and Case C-280/11 P, Council v Access Info Europe, judgment of 17 October 2013, EU:C:2013:671, para 30.

110  Natasa Athanasiadou concerning a certain category of documents. More specifically, the institutions rely on such general presumptions when it is reasonably foreseeable that disclosure of the type of document falling within that category would be liable to undermine the interest protected by the exception in question.17 However, according to the case law, such general presumptions must be interpreted and applied strictly, because they constitute an exception to the rule that the institutions should in principle carry out a specific and individual examination.18 The following sections examine how these provisions are to be applied in order to ensure transparency and the effective exercise of the right of access to documents. This is done, first, regarding the Commission’s process of preparing a legislative proposal and, second, regarding the process of legislative trilogues between the EP, the Council and the Commission.

III.  Transparency in ‘Proposal-Making’ In its landmark judgment in ClientEarth handed down in September 2018, the ECJ set the standards for transparency and access to documents in all processes that lead to the adoption of an EU legislative act. The case arose when an environmental NGO ClientEarth requested access to documents pertaining to two ongoing Commission’s impact assessments concerning environmental matters before the Commission made its proposals for a legislative act. The Commission refused access, explaining that disclosure, at that stage, would seriously undermine its ongoing decision-making process. More specifically, the Commission argued that disclosure would restrict its room for manoeuvre and reduce its ability to reach a compromise, and might create external pressure which could hinder this delicate process, during which an atmosphere of trust ought to prevail. The Commission referred to the Treaty provisions which guarantee its independent functioning (Article 17(1) TEU and the third sub-paragraph of Article 17(3) TEU).19 At first instance, the GC accepted the Commission’s justification based on the general presumption that the disclosure of internal documents would seriously undermine the Commission’s decision-making process, since it was still ongoing, and that there were no overriding reasons of public interest that would justify such disclosure.20 Following an appeal by ClientEarth, which was supported by the interventions of Finland and Sweden, the ECJ annulled the GC’s judgment. In its judgment, the ECJ first recalled that all exceptions to the rule on access to documents should be applied restrictively, since the aim of the Regulation is to 17 Sweden and Turco v Council (n 3) para 50; Case C-139/07 P, Commission v Technische Glaswerke Ilmenau, judgment of 29 June 2010, EU:C:2010:376, para 54; Council v Access Info Europe (n 17) para 72. 18 Case C-57/16 P, ClientEarth v European Commission, Judgment of 4 September 2018, EU:C:2018:660, para 80. 19 ibid para 13. 20 ClientEarth (n 18).

What Role for Citizens in Ongoing Legislative Processes?  111 ensure the widest access possible.21 The interpretation and application of exceptions should be even stricter in the case of legislative documents. On this point, the ECJ’s interpretation of the term ‘legislative document’ differed from that of the GC. According to the ECJ’s reasoning, the Commission, although not one of the co-legislators, is a key player in the legislative process, since its prerogative of legislative initiative allows it to determine whether the legislative process on a specific topic will be opened or not.22 The Commission’s impact assessments ‘form part of the basis for the EU legislative action’ and they are therefore, ‘in view of their purpose’, legislative documents within the meaning of the Regulation, which should in principle be made directly accessible by the Commission to the general public.23 The ECJ defined the term ‘legislative document’ based on a teleological interpretation of the document’s purpose and not based on the formal criterion that such a document is issued by one of the co-legislators. Furthermore, it added that the requested impact assessments pertained to environmental matters, where special rules enable greater access to information than in other policy fields.24 Therefore, according to the ECJ, the special nature of the requested documents – their being part of the legislative process and containing environmental information – requires an even stricter application of the existing exceptions to the right of access to documents. The ECJ also made it clear that disclosure of legislative documents cannot be denied on the grounds that a public consultation was held in the course of the proposal-making procedure, during which ClientEarth had an opportunity to participate.25 Indeed, having the possibility to participate in a consultation does not replace the right of access to documents.26 The ECJ particularly noted that while public consultations might be restricted to a certain circle of interest representatives,27 this is not the case with the right of access to documents. Based on these considerations, the ECJ did not leave much room for the Commission to rely on a ‘general presumption’ of non-disclosure in relation to such legislative and environmental documents. More specifically, the ECJ argued that the Commission’s independence cannot be endangered through early disclosure of its impact assessment, since transparency reinforces the perception of independence.28 It also rejected the Commission’s argument that disclosure of the impact assessment before the publication of the Commission’s proposal

21 ibid para 78. 22 ibid paras 86 ff. 23 ibid para 93. 24 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters to Community institutions and bodies [2006] OJ L264/13. 25 ClientEarth (n 18) para 94. 26 ibid. 27 ibid. 28 ibid para 104.

112  Natasa Athanasiadou would deprive it of the space necessary for deliberation and consensus building to take place without external pressure. According to the ECJ, the Commission is not obliged to respond – on the merits and in each individual case – to the input received from the public. The expression of views by citizens and other interested parties is an integral part of the EU’s democratic process and should not prevent the Commission from enjoying space for deliberation and independent assessment.29 Even the provisional nature of a document is not as such capable of triggering a general presumption of non-disclosure without any justification in relation to the specific context, since, according to the ECJ, the Regulation does not exclude provisional documents from its scope.30 After rejecting reliance on a general presumption of non-disclosure, the ECJ examined whether the Commission’s non-disclosure decision could be justified based on specific considerations. It concluded that the Commission did not sufficiently substantiate the specific, actual and reasonably foreseeable risk that would have undermined its decision-making process had it disclosed the provisional impact assessment at an early stage.31 The risk of attempts by external stakeholders to influence the decision-making process always exists; it is the Commission’s responsibility to prevent this from happening and to take into consideration all the interests involved.32 The ECJ also found that the Commission remained vague when arguing that the subject was of a sensitive nature and that there were possible diverging opinions among the Member States.33 Therefore, the ClientEarth judgment constitutes a milestone in the field of transparency as it marked the first time that the ECJ pronounced itself on the definition of ‘legislative document’ and addressed the complex legal question of access to provisional documents in the context of an ongoing proposal-making procedure by the Commission. The key arguments of ClientEarth are also found in the GC’s De Capitani judgment, which was about transparency and access to documents in the context of ongoing trilogues. It is noteworthy that the GC’s judgment in De Capitani was issued on 22 March 2018, some five months before the ECJ’s judgment in ClientEarth was issued on 4 September 2018. However, the hearing and the publication of the Opinion of Advocate General Yves Bot in ClientEarth had already taken place in 2017. Therefore, it seems possible that the GC could already anticipate the ECJ’s ClientEarth judgment and this could also explain the new era that the De Capitani judgment marks vis-a-vis the previous GC case law, in particular the first instance judgment in ClientEarth,34 which the ECJ annulled.



29 ibid

paras 107–09. para 111. 31 ibid paras 121 ff. 32 ibid para 124. 33 ibid para 126. 34 ClientEarth (n 9). 30 ibid

What Role for Citizens in Ongoing Legislative Processes?  113

IV.  Transparency in Ongoing Trilogues A.  Setting the Scene Negotiations between EU institutions on legislative proposals generally take the form of trilogues. For any given file, each institution designates its negotiators and defines its negotiating mandate. Trilogues may be organised at any stage of the legislative procedure (first, second or third reading).35 Any provisional agreement reached in trilogues is informal and has to be formally approved by the EP and the Council. The use of trilogues, although not formally foreseen by the Treaties, has in practice become the default way of reaching consensus among the co-legislators,36 with the presence of the Commission as facilitator.37 These tripartite negotiations take place in camera38 and thus constitute a derogation from the Treaty requirements of openness and transparency in the EU legislative process. Indeed, pursuant to Article 15(2) TFEU, both the EP and the Council should meet in public when considering and voting on a draft legislative act. Given that trilogues circumvent this clear Treaty requirement, there has been a persistent quest by various stakeholders and academics for greater transparency of these informal inter-institutional meetings, which in essence prepare the EP’s and the Council’s votes on an EU legislative text.39 In the Interinstitutional Agreement on Better Law-Making of 2016, the EP, the Council and the Commission committed, among other things, to ensure the transparency of EU legislative procedures, including an appropriate handling of trilateral negotiations.40 In particular, they committed to improve communication to the public during the entire legislative cycle and to jointly announce the successful outcome of these negotiations once they have reached agreement, namely through joint press conferences or other appropriate means. In order to facilitate the traceability of the various steps in the legislative process, the three institutions also committed to establish a joint database on the state of play of legislative files.41 In a Resolution on public access to documents, adopted just a few days after the conclusion of this Inter-institutional Agreement, the EP stressed the importance and effectiveness of trilogues and aimed to find a middle ground, whereby all key

35 See www.europarl.europa.eu/olp/en/interinstitutional-negotiations; De Capitani (n 7) para 68. 36 EP, Activity Report: Developments and Trends of the Ordinary Legislative Procedure, 1 July 2014– 1 July 2019 (8th parliamentary term), www.europarl.europa.eu/cmsdata/198024/activity-report-20142019_en.pdf. 37 See the qualification of the Commission as ‘facilitator’ in trilogue negotiations in the Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making [2016] OJ L123/1, para 32. 38 EP (n 36) 1. 39 See, eg, Curtin and Leino (n 8); Brandsma et al (n 8); Hillebrandt and Leino-Sandberg (n 11). 40 Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making [2016] OJ L123, 12 May, 1–14, para 28. 41 ibid para 29.

114  Natasa Athanasiadou trilogue documents are made public, while at the same time preserving a ‘space to think’ for the co-legislators.42 The Resolution did not specify the exact timing of making trilogue documents public, precisely in order to allow the institutions a degree of discretion in deciding this. In July 2016, just a couple of months after the Inter-institutional Agreement and the aforementioned EP Resolution, the European Ombudsman, in the context of a strategic inquiry, made specific recommendations regarding the transparency of trilogues, while acknowledging the need to ensure some institutional ‘space to think’.43 The Ombudsman proposed that before trilogue negotiations begin, both co-legislators should proactively make their positions on the Commission proposal available and provide the public with the main points for inter-institutional discussion. The Ombudsman argued in favour of making the key information and documents public directly and not to merely allow access to documents, so as to counter any fear that certain interest groups enjoy a greater degree of information about trilogue negotiations, thus ensuring a ‘level playing field’.44 However, as regards disclosure of the so-called ‘four-column’ documents, which are used during inter-institutional negotiations, the Ombudsman showed some flexibility. A ‘four-column’ document combines the initial positions of the three institutions (set out in the first three columns) with the compromise text as it evolves during the discussions (set out in the fourth column). The Ombudsman argued that in relation to evolving compromise texts, the interest in well-functioning negotiations temporarily outweighs the interest in transparency for as long as the trilogue is ongoing.45 This argument was substantiated by the so-called ‘nothing is agreed until everything is agreed’ negotiating principle. Often, a concession may be made by one co-legislator on one part of the draft in the expectation that concessions may be made by the other co-legislator at a later stage. However, such early concessions may be withdrawn or amended depending upon the outcome of the later stages of negotiations. If negotiators know that the evolving negotiating text might go public, they might refrain from making any serious concessions early on in the process.46 The Ombudsman therefore acknowledged that early disclosure could potentially damage the negotiation process and accepted the possibility of publishing ‘four-column’ documents as soon as the final agreement has been reached.47 In order to reach this conclusion, the Ombudsman stressed that representative democracies, such as the EU, should give elected representatives the responsibility and mandate to negotiate the content of legislation on 42 EP, Resolution of 28 April 2016 on public access to documents (Rule 116(7)) for the years 2014–2015, Doc No P8_TA(2016)0202, point 27. 43 Decision of the European Ombudsman setting out proposals following her strategic inquiry OI/8/2015/JAS concerning the transparency of trilogues, 12 July 2016. 44 ibid para 25. 45 ibid para 54. 46 ibid. 47 See this conclusion by the European Ombudsman criticised in Hillebrandt and Leino-Sandberg (n 10).

What Role for Citizens in Ongoing Legislative Processes?  115 behalf of citizens. For this to function properly, elected representatives must have some space to negotiate.48

B.  The Landmark Judgment in De Capitani Approximately two years after the Ombudsman’s strategic inquiry, the GC delivered its landmark judgment in De Capitani, going beyond the Ombudsman’s recommendations and opening the path towards access to negotiating documents even before the finalisation of the trilogue.49 A transparency activist and former civil servant of the EP, Mr Emilio de Capitani, made a request for access to the ‘four-column’ documents of ongoing trilogues in the area of freedom, security and justice. The EP identified seven ongoing trilogues in this area and granted access to five out of the seven ‘four-column’ documents requested. However, as regards the two remaining trilogues – both on the functioning of Europol – the EP granted access to three out of the four columns, which means that it disclosed the initial position of each institution, but not the provisional compromise text in the fourth column. Mr de Capitani then lodged an action for annulment before the GC, which was successful. Before the GC, the Council and the Commission intervened in favour of the EP. All three institutions therefore shared a common position concerning access to provisional trilogue documents. In its judgment, the GC first recalled the established case law that the application of the exception laid down in the first sub-paragraph of Article 4(3) of Regulation 1049/2001 requires that it be established that access to the documents requested was likely to specifically and actually undermine the protection of a given institution’s decision-making process, the likelihood of this risk having to be reasonably foreseeable and not purely hypothetical.50 The GC also clarified that this cannot be interpreted as requiring the institutions to submit ‘evidence’ to establish the existence of such a risk. It is sufficient if the contested decision contains ‘tangible elements’, and the existence of ‘objective reasons’ in particular, on the basis of which it could be reasonably foreseen that the decision-making process would be undermined if the documents were disclosed.51 Subsequently, the GC examined whether a ‘reasonably foreseeable and not purely hypothetical risk’ of undermining the decision-making process was established in this case and did so based on three considerations: (a) the general presumption regarding the category of documents, as previously analysed in ClientEarth; (b) the specific considerations concerning the documents at hand; and (c) general considerations concerning ongoing trilogues. 48 ibid para 29. 49 De Capitani (n 7). 50 Case T-471/08, Toland v Parliament, judgment of 7 June 2011, EU:T:2011:252, para 70; De Capitani (n 7) para 63. 51 De Capitani (n 7) para 65.

116  Natasa Athanasiadou Regarding the general presumption, the GC rejected the possibility of such a risk arising in relation to ‘four-column’ documents, even while a trilogue is still ongoing. This conclusion is based on the principles of openness and transparency that underpin the legislative process, as required by the Treaties, which explicitly lay down that the EP and the Council must meet in public when considering and voting on a legislative act (Article 15(2) TFEU).52 The GC also recalled that the ECJ had so far accepted a general presumption only regarding ongoing judicial or administrative procedures, such as the review of mergers or state aid, but never in relation to a legislative procedure.53 According to the GC, invoking the effectiveness and integrity of the legislative process is not justified as such to bend the transparency requirement that underlies the legislative process.54 When it comes to specific considerations, the EP argued that the policies on the management and storage of data held by Europol, as well as the rules on the composition of the Europol management board, are of a particularly ‘sensitive nature’: it would have been difficult to disclose the compromise before it had been finalised. The GC rejected the EP’s reasoning ruling that ‘sensitive’ does not mean politically difficult. Abstract and general matters of a regulatory nature cannot qualify as sensitive.55 Concerning the general considerations invoked by the EP, the GC found this to be tantamount to invoking a general presumption regarding the category of documents drawn up under similar circumstances.56 This was indeed confirmed by the ECJ in ClientEarth.57 The GC therefore created an artificial distinction between a general presumption and general considerations, which interrupts the logical sequence of the legal reasoning. That said, the GC examined three general considerations. First, the EP’s central general consideration concerned the provisional character of a ‘four-column’ document while the trilogue is still ongoing and that disclosure of multiple versions of the document could create confusion among the public. This was rejected by the GC because Regulation 1049/2001 does not differentiate between provisional and non-provisional documents, and because the risk of confusion can be addressed by making it clear to the recipients of the documents that they are of a provisional nature.58 Second, the EP also argued that disclosing provisional documents may lead to increased external pressure and a loss of trust between the institutions participating in the trilogue. On these two general considerations, the GC held that the EP had submitted no ‘tangible evidence’ to substantiate the risk of external pressure 52 ibid para 77. 53 ibid para 82. 54 ibid para 83. 55 ibid paras 89 ff. 56 J Mendes, ‘The Principle of Transparency and Access to Documents in the EU’, University of Luxembourg Law Working Paper No 2020-004, 20 March 2020. 57 ClientEarth (n 18) para 120. 58 ibid paras 100–02.

What Role for Citizens in Ongoing Legislative Processes?  117 that would go beyond what is normally expected and that of undermining loyal cooperation between the institutions.59 It is important to note that although the GC reaffirmed that the threshold to substantiate the risk of undermining the decision-making process does not require submitting ‘evidence’, but only some ‘tangible elements’,60 in its legal reasoning, the GC indeed required ‘evidence’.61 Third, the EP invoked the necessity for some protected ‘space to think’ while inter-institutional negotiations are ongoing. The GC rejected this argument by recalling that, according to an EP Resolution of 2011,62 trilogues constitute a ‘substantial phase of the legislative’ procedure and they therefore cannot be assimilated to a separate space to think.63 However, while acknowledging that trilogues are part of the legislative process and thus their transparency is necessary, the GC accepted that the institutions retain the possibility of a free exchange of views (orally) before inserting the compromise text into the ‘four-column’ document. The GC did not question the fact that trilogue documents are not made publicly available, but could only be disclosed following a request for access to documents.64 By accepting this, the GC in essence separated the legislative process into two parts: a fully transparent public part, whereby the EP and the Council deliberate in public and offer direct access to the relevant legislative documents; and a preparatory part, whereby the three institutions have some space to deliberate orally and in a protected space, while the evolving compromise text does not have to be proactively published, but may be disclosed upon request. The timing of the disclosure may not be deferred until the end of the trilogue, since trilogues often last many months and therefore, according to the GC, the public cannot be kept in the dark for so long.65 Furthermore, the GC noted that, for the time being, there were no adequate alternative means to mitigate the lack of transparency, since no detailed and uniform minutes of trilogue meetings are published as a general practice.66 From the De Capitani judgment, it can be concluded that when institutions refuse the disclosure of legislative documents, they cannot rely on a general presumption of non-disclosure and have to rigorously justify their decision based on well-substantiated specific arguments. However, the justification threshold has been set so high that it is very difficult to construct any real-life examples where non-disclosure would be possible. The EP chose not to appeal against the judgment, thus accepting the new threshold for transparency and relying on its legacy.

59 ibid paras 99 and 104. 60 ibid para 65. 61 ibid paras 99 and 103. 62 EP, Resolution of 14 September 2011 on public access to documents (Rule 104(7)) for the years 2011–2013, Doc No P7_TA(2014)0203, para 29. 63 De Capitani (n 7) para 105. 64 ibid para 106. 65 ibid para 107. 66 ibid para 108.

118  Natasa Athanasiadou

V.  Critical Assessment and Outlook The analysis of the landmark judgments in ClientEarth and De Capitani demonstrates the importance of transparency for the good functioning of democracy in the EU. The general public has to be kept informed throughout the EU legislative process either through publication of legislative documents (ie, ‘proactive transparency’) or at least through access to documents upon request (ie, ‘reactive transparency’). All the institutions involved, as well as the European Ombudsman, have agreed on the necessity to disclose to the general public all key documents that form the basis for the development of legislation. The contentious point in the cases examined was the timing of disclosure. The EP, the Council and the Commission have been reluctant to disclose documents which are of a provisional nature and which are still evolving during an ongoing decision-making process. The institutions’ key argument in favour of provisional non-disclosure has been that while negotiations are still ongoing, they need some space to think free from external pressure, in particular regarding politically sensitive matters. The European Ombudsman accepted this argument in the case of compromise texts evolving during trilogue negotiations. Yet the EU Courts – both the ECJ concerning the Commission’s proposal-making and the GC concerning trilogues – have stressed the importance of keeping the public informed while the decision-making process is still ongoing, and thus before decisions are set in stone and before the point at which citizens can no longer shape them. This is especially important where the decision-making process takes a long time. The GC’s interpretation of the institutions’ obligation to ensure transparency – even regarding provisional documents while the decision-making-process is still ongoing – shows a perception of the relationship between representative and participatory democracy that is different from that adopted by the European Ombudsman. The latter justified the necessity to maintain some protected space to think for policy-makers based on the essence of the functioning of representative democracy, which consists of deliberations and compromises among political actors. In light of this, citizens and interest representatives cannot have the same information and means to shape the outcome as if they were sitting at the negotiating table. However, the GC strikes the balance between representative and participatory democracy differently. According to its reasoning, disclosing how compromise texts evolve in negotiations among EU institutions’ negotiators, and allowing the general public and interest representatives to express their views, is part of how democracy functions. The political actors involved are responsible for the final decision and for representing all interests, rather than only those interests that exert most pressure on the decision-makers. This conclusion applies to all phases of the legislative process. Indeed, the GC ruled that this high transparency requirement that is inherent in the legislative process not only concerns the formal legislative process, when the co-legislators publicly deliberate and vote on the Commission proposal, but that it also refers to any preparatory phases, such as the process of proposal-making by the

What Role for Citizens in Ongoing Legislative Processes?  119 Commission and the informal trilogue negotiations. Documents produced in the processes that lead to the adoption of a legislative act also fall under the same high transparency requirement. However, it should be recalled that the Treaties require the EP and the Council to ensure the publication of documents relating to the legislative procedures under the terms laid down by secondary EU law (Article 15(3) TFEU). In order to reconcile this Treaty provision with the ECJ’s and the GC’s teleological interpretation of the notion of legislative documents – which includes documents produced by the Commission in the context of the proposal-making procedure and any other document that forms the basis of the legislative process, such as trilogue documents – two categories of legislative documents emerge. Certain key legislative documents, which may also be called legislative documents stricto sensu, have to be made public by the co-legislators. Other legislative documents, which can be considered legislative documents lato sensu, should be made available at least upon request for access to documents. The exceptions allowing non-disclosure, provided for by secondary EU law, have to be interpreted particularly strictly in the case of both categories of legislative documents (stricto sensu and lato sensu). Both the ECJ and the GC see no room for ‘general presumptions’ that could justify the non-disclosure of a whole category of legislative documents. No category may be covered by a presumption of non-disclosure, be it based on the status of the document (final or provisional), the phase of the legislative process (early or advanced) or the political sensitivity of its subject matter. Non-disclosure could be justified only by invoking specific considerations demonstrating, in a reasonably foreseeable and not merely hypothetical way, that the decision-making process would otherwise be undermined. The threshold required to substantiate the risk of undermining the decision-making process was defined inconsistently by the GC. This is because the GC noted that institutions do not need to submit ‘evidence’, but only ‘tangible elements’, while later dismissing their arguments requiring ‘tangible evidence’.67 It is hard to imagine what type of evidence institutions could have brought forward in order to sufficiently substantiate their argument that the atmosphere of trust among institutions would have been undermined by the early disclosure of nonfinal concessions and compromises.68 Given this very high threshold set by the case law, preparatory or provisional documents produced during the legislative process should by default be disclosed upon request for access to documents. The question here is whether there is still some ‘institutional space to think and deliberate’ left. The GC in De Capitani affirmed that there is still space for oral deliberations before the provisional compromise takes the form of a (provisional) document. This creates the

67 Compare para 65 with paras 99 and 104 of De Capitani (n 7). 68 See also G Rugge, ‘Trilogues and Access to Documents: De Capitani v. Parliament’ (2019) 56 CML Rev 253.

120  Natasa Athanasiadou risk of EU institutions deciding to keep all politically sensitive points at the level of oral discussion and in the form of informal notes that could not qualify as a ‘document’, in order to avoid having to grant disclosure.69 Indeed, apart from oral discussions and informal notes, the examined case law leaves a very thin, almost non-existent margin for the non-disclosure of documents, including even early drafts and compromises drawn up in the course of the legislative process. The tension between transparency and effectiveness of the decision-making process was solved in favour of transparency, but without finding some middle ground in balancing the two interests.70 Both the ECJ in ClientEarth and the GC in De Capitani failed to find any other means of transparency and citizen participation that could mitigate the non-disclosure of the documents concerned. However, the GC left open the possibility to accept non-disclosure of a provisional draft as long as there are adequate means of ensuring transparency and keeping the general public informed about progress in trilogues.71 Maintaining some institutional space to think serves the effectiveness of the decision-making process, a need explicitly acknowledged in Regulation 1049/2001 on access to documents. This was the very reason for introducing trilogues in the first place.72 The European Ombudsman reaffirmed this need in her decision of 11 October 2021 regarding access to Council documents in the context of trilogue negotiations on motor vehicle emissions.73 The Ombudsman acknowledged the Council’s prerogative not to disclose the part of the documents that contained its negotiating strategy with the EP; indeed, releasing this strategy while the negotiations were still ongoing could seriously undermine the Council’s negotiating position. An option that could be explored in order to maintain some institutional space to think, while ensuring the necessary transparency and means to enable citizen participation, is to invest in proactive transparency. A useful parallel in this respect can be drawn with Brexit negotiations. In these negotiations, the Commission was proactively publishing the outcome of each negotiating round and disclosing relevant draft documents which were under discussion with its UK counterparts, while at the same time reporting on the progress of negotiations in press conferences.74 This level of transparency went beyond earlier 69 See on this risk ibid 254; A Hoppe, ‘The Devil is in the Process: An Analysis of the Impact of Negotiation Processes in Trilogues on EU Legislation’ (PhD thesis, Utrecht University, 2020) 237; European Economic and Social Committee, Study ‘Investigation of Informal Trilogue Negotiations since the Lisbon Treaty’ (authored by M Kluger Dionigi and C Koop), July 2017, 83; Bodson (n 8) 278. 70 See n 10 above for the argument that maintaining any ‘space to think’ for inter-institutional deliberations is not justified. 71 See also Rugge (n 68) 255. 72 EP (n 42) point 27. 73 Decision of the European Ombudsman on the Council of the EU’s refusal to provide full public access to documents related to trilogue negotiations on motor vehicle emissions (Case 360/2021/TE), 11 October 2021. 74 N Athanasiadou, ‘Facilitating the Participation of EU Citizens in the Brexit Negotiation Process’ in T Christiansen and D Fromage (eds), Brexit and Democracy: The Role of Parliaments in the UK and the European Union (London, Palgrave Macmillan, 2019) 293–320.

What Role for Citizens in Ongoing Legislative Processes?  121 practices of transparency in EU international negotiations, and was therefore praised by the European Ombudsman.75 If such timely reporting and proactive publication of relevant memos and drafts is ensured for all preparatory phases of a legislative act and at regular intervals, EU institutions involved in the legislative process could avoid having to grant disclosure of provisional documents at a time when, in their perception, this could be detrimental to trilogue negotiations. Proactive transparency ensuring uniform access to information to all citizens would take better account of the Treaty requirements of transparency of the legislative process. Once the new Joint Legislative Portal that is foreseen in the 2016 Interinstitutional Agreement on Better Law-Making becomes operational, the institutions will have an opportunity to implement the ‘Brexit negotiations’ model by proactively publishing information on the progress of ongoing legislative procedures. The aim of this future database is to increase the traceability of the various steps in the legislative process and enable the public to retrieve documents produced in this process.76 The main target audience being the general public, the database should provide easy access to comprehensive information in an understandable and userfriendly manner, with direct links to existing repositories run by the institutions.77 Although there have been discussions at a technical level between the services of the three institutions on the development of this joint database,78 it was only in October 2020 that the three institutions decided to entrust its development with the Publications Office of the EU, an inter-institutional office for the management of EU documents.79 The good functioning of this portal could indeed be a significant step towards more robust transparency of the legislative process if citizens could find all key documents throughout the legislative process on one single website, including the negotiating positions of the three institutions during trilogues and regular updates on their progress. If such centralised information is presented in an easily understandable and comprehensive way, this would probably facilitate engaging more citizens that do not necessarily belong to the so-called ‘EU bubble’ insiders.80 It could also facilitate wider media coverage of ongoing negotiations on important EU legislative matters, leading to the wider diffusion of information.

75 European Ombudsman, Letter to President Juncker concerning securing appropriate stakeholder input in the Brexit negotiations and potential for further progress on transparency, Case SI/1/2017/KR, 23 February 2018. 76 Council of the EU, Implementation of the Interinstitutional Agreement on Better Law-Making – State of Play, 21 June 2019, para 7. 77 ibid. 78 ibid. 79 Publications Office of the EU, Annual Activity Report 2020, 8 June 2021, 7. 80 On the problem that ‘reactive transparency’ helps mainly organised interests, see Curtin and Leino (n 8); EESC (n 69) 72 ff; von Achenbach (n 10).

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VI. Conclusions Effective citizen scrutiny and participation in the EU legislative process presuppose transparency and timely access to information. The CJEU in its recent case law stressed the importance of keeping the public informed while the decisionmaking process in the preparation of legislation is still ongoing, before decisions are already set in stone and citizens can no longer shape them. The ECJ adopted a teleological interpretation and classified as legislative documents all documents which ‘form part of the basis for the EU legislative action’, irrespective of whether they were issued by the co-legislators, the Commission or, if we extend this reasoning, any other actor. Therefore, impact assessments in the course of the preparation of a Commission proposal or compromise drafts in the context of informal trilogue negotiations between the EP, the Council and the Commission fall under the term ‘legislative documents’. The CJEU set the threshold extremely high for justifying the non-disclosure of such documents, even when they are still in draft form and at an early stage. Against this high threshold, the question which arises is whether there is still any protected space left for the institutions to think and deliberate. This chapter has argued that the only way to reconcile the primary EU law obligation of transparency of the legislative process, as broadly defined by the CJEU, with the need to maintain some space for EU institutions to think and deliberate is to invest more in proactive transparency. According to the Treaties, legislative documents should be made directly available to the public via the institutions’ websites. The CJEU, because it was seised by the applicants in a dispute about access to documents, did not deal directly with the question of direct publication. The European Ombudsman, who had the opportunity to look at the aspect of transparency more holistically, emphasised the importance of proactive transparency in all stages of the legislative process, including informal trilogues, so as to ensure a ‘level playing field’ across the board and among all citizens and stakeholders. This chapter submits that the institutions should use the Joint Legislative Portal, which is under construction at the time of the writing of this chapter, as an opportunity to implement such proactive transparency for all steps of the legislative process, from the preparatory phase of the Commission proposal until its final adoption. On this portal, citizens’ should be able to find, in all official EU languages, the key steps of the legislative process, the proposal that is on the negotiation table, the starting positions of the negotiating institutions, summaries on the sticking points in the negotiation, and regular updates on the progress of negotiations. Brexit negotiations exemplify a high level of proactive transparency, thanks to the provision of updates after every negotiation round and the publication of the draft documents under discussion. Such proactive transparency, at regular intervals, would enable the institutions to determine when to disclose a draft document under discussion, thus balancing the fundamental transparency requirement

What Role for Citizens in Ongoing Legislative Processes?  123 with some space to think and deliberate. If this level of transparency had already been in place, the outcome in De Capitani might have been different. Formalising the transparency of ongoing processes and investing in proactive transparency through a centralised and user-friendly portal, instead of simply relying on ‘reactive’ transparency through requests of access to documents, might c­ ultivate a wider and more transnational interest in the EU legislative process. With the help of local media, information on ongoing EU legislative initiatives could ­potentially reach the general public and not merely the limited number of experts and organised interest representatives. While this is hard to achieve, it is definitely worth trying to transform a purely institutional ‘space to think’, benefiting only EU ­institutions, into a more transparent ‘space to co-think’, which would also ­benefit the citizens and allow them to participate in EU democratic governance to a greater extent than is presently the case.

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part iii Democracy Beyond Representation Participation and EU Integration

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7 From Paris with Love President Macron’s Democratic Conventions in Context DAVOR JANČIĆ

I. Introduction With the disconnect between the loci of European Union (EU) decision-making and the citizens growing wider and with an increasing perception of the erosion of citizens’ trust in the EU,1 numerous initiatives have been taken to enhance citizen involvement and bolster the democratic legitimacy of the Union.2 The Conference on the Future of Europe 2021–22 (CoFoE) is the latest attempt, made by the von der Leyen Commission, to give citizens a say in the potential reform of EU policies and institutions.3 The Commission’s establishment in October 2021 of a new Competence Centre on Participatory and Deliberative Democracy also supports the idea and practice of direct citizen involvement in EU governance.4 Yet, the CoFoE stands on the shoulders of previous citizen-oriented initiatives.5

1 Citizens’ trust in the EU and its institutions has fluctuated over time, but, in the aggregate, it has declined from its peak of 57% in 2007 to its lowest point of 31% in 2013/2014, only to increase again to 47% in 2021/2022. Comparatively, citizens’ trust in national institutions is far worse, albeit with the trend of improvement from its lowest point of 23% in 2013 to 36% (parliaments) and 35% (national governments) in 2021/2022. See Standard Eurobarometer no 96, ‘Public Opinion in the European Union – First Results’, January–February 2022, 9. 2 J Labitzke, ‘Consultation Processes as a Practice of Legitimacy in the EU Legislative Process’ (2012) 20(3) Journal of Contemporary European Studies 323–36. 3 See more on this Conference in ch 8 by Maaike Geuens in this volume. 4 This Centre primarily aims to enrich the Union’s knowledge base on non-electoral forms of EU democracy, provide guidance for researchers and policy-makers, and develop spaces dedicated to citizen engagement. 5 P Boucher, ‘If Citizens Have a Voice, Who’s Listening? Lessons from Recent Citizen Consultation Experiments for the European Union’ (2009) EPIN Working Paper no 24.

128  Davor Jančić While earlier initiatives included European Citizens’ Consultations (2007 and 2009)6 and pan-EU deliberative polls like Tomorrow’s Europe (2007) and Europolis (2009),7 this chapter focuses on the CoFoE’s immediate predecessor: the democratic conventions promoted by French President Emmanuel Macron and the wider citizens’ consultations process that accompanied it. All of these initiatives have created a momentum for EU institutions to turn more markedly towards citizens as democratic actors in their own right. On the supranational side, the Barroso Commission began holding town hall-style citizens’ dialogues, with the first taking place on 27 September 2012 in the Spanish city of Cadiz with the then European Commissioner Viviane Reding. These dialogues were a prelude to the European Year of Citizens in 2013. The Juncker Commission’s five scenarios for the future of Europe, published in a White Paper in March 2017, were all citizen-focused and sought to reconnect elite-driven politics with its final addressees – the citizens.8 As underlined by one of Jean-Claude Juncker’s special advisers, Europe needs to be not only citizen-focused, but also ‘citizen-owned’.9 On the intergovernmental side, the Bratislava Declaration, adopted at the informal European Council meeting on 16 September 2016, underlined the need to ‘improve the communication’ with citizens and focus on their expectations.10 Similarly, the Rome Declaration, adopted by 27 Heads of State or Government on 25 March 2017, on the occasion of the 60th anniversary of the Treaties of Rome, contains their pledge, inter alia, ‘to listen and respond to the concerns expressed by our citizens’.11 For his part, former European Council President Donald Tusk had embarked on the organisation of 13 ‘Future of Europe’ summits to address Britain’s withdrawal from the EU, which was seen as an opportunity and impetus for reform. These summits, referred to as the ‘Leaders’ Agenda’, were held on the margins of regular European Council meetings from October 2017 to June 2019.12 The first guiding principle for this extraordinary summitry process was to ‘focus on practical solutions to EU citizens’ real problems’.13

6 M Karlsson, ‘A Panacea for Pan-European Citizen Participation? Analysis of the 2009 European Citizens Consultations’ in E Amnå (ed), New Forms of Citizen Participation: Normative Implications (Baden-Baden, Nomos, 2010) 97–112. 7 P Isernia and JS Fishkin, ‘Can European Elections Be Deliberative? The 2009 Europolis Deliberative Poll’ (2014) 15(3) European Union Politics, Special Issue. 8 European Commission, ‘White Paper on the Future of Europe – Reflections and Scenarios for the EU27 by 2025’ COM (2017) 2025, 1 March 2017. 9 L van den Brande, Reaching out to EU Citizens – A New Opportunity: ‘About Us, with Us, for Us’ (Luxembourg, Publications Office of the European Union, 2017) 10. 10 See www.consilium.europa.eu/media/21250/160916-bratislava-declaration-and-roadmapen16.pdf. 11 See www.consilium.europa.eu/en/press/press-releases/2017/03/25/rome-declaration. 12 European Council, ‘Leaders’ Agenda’, www.consilium.europa.eu/media/21594/leaders-agenda.pdf. 13 European Council, press release, 17 October 2017, www.consilium.europa.eu/en/press/pressreleases/2017/10/17/tusk-invitation-letter-euco.

From Paris with Love  129 Among the most prominent recent voices on EU democratic reform has been that of President Macron.14 While commentators have mostly concentrated on his ideas on the deepening of the Economic and Monetary Union, those on rekindling EU democracy and reconnecting with European citizens have received less attention. In his Versailles and Sorbonne speeches, he called for the organisation of EU-wide democratic conventions. These were organised in the run-up to the 2019 European Parliament (EP) elections and sought to collect citizens’ views and suggestions on the future trajectory and priorities of European integration. They were meant to address one of the Union’s perennial challenges, which is to reinvigorate its democratic legitimacy and reinforce citizens’ ownership of EU decisions through viable, inclusive and effective means of participation in their making. The phrase ‘democratic conventions’ was later dropped in favour of a more low-key appellation of ‘citizen consultations’ to make the initiative more palatable to the reluctant Member States,15 but also arguably to avoid using the nomenclature of the Treaty revision process under Article 48(3) of the Treaty on European Union (TEU). Most Member States subsequently adopted the latter phrasing. Other names were used in a couple of other Member States, like ‘reinforced EU debate about the future of the EU’ in Denmark, ‘citizens’ dialogue on the future of Europe’ in Germany or ‘citizens’ dialogue initiative’ in Lithuania. When referring to this Macron-initiated process, this chapter, for purely practical reasons, retains the initial terminology of ‘democratic conventions’ or, briefly, ‘conventions’, in order to more clearly distinguish this set of events from the citizens’ consultations that were simultaneously taking place at the EU level and from the aforesaid citizens’ dialogues that the Commission ran in different Member States in parallel to the conventions. This chapter has a twofold objective. First, it examines the rationale, benefits and pitfalls of the democratic conventions. On the one hand, it is argued that while contributing to input legitimacy, the future viability of such consultations, as a durable instrument of citizen participation ‘in the democratic life of the Union’ (Article 10(3) TEU), is highly contingent on their policy output and their ability to inform EU policy-making.16 Failing this, such initiatives risk producing

14 LB García and A Oleart, ‘Make Europe Great Again: The Politicising Pro-European Narrative of Emmanuel Macron in France’ in T Haapala and A Oleart (eds), Tracing the Politicisation of the EU: The Future of Europe Debates before and after the 2019 Elections (Cham, Palgrave Macmillan, 2022) 271–93. 15 P Hammoud, ‘Consultations Citoyennes: Un Défi Politique et Démocratique’, Pour la Solidarité Notes d’Analyse, April 2018, https://www.pourlasolidarite.eu/sites/default/files/publications/files/na_-_ 2018-_consultations_citoyennes.pdf, 4; A Robert, ‘Reality Catches up with Macron’s Projects of European Democracy’, EurActiv, 21 December 2017, https://www.euractiv.com/section/future-eu/ news/reality-catches-up-with-macrons-projects-of-european-democracy. 16 D Gutiérrez-Peris et al, ‘Europe’s Conventions Démocratiques’ in S Blockmans and S Russack (eds), Direct Democracy in the EU: The Myth of a Citizens’ Union (Brussels, CEPS/London, Rowman & Littlefield, 2018) 45–64, 45; R Youngs, ‘Can Macron’s Gamble to Save the EU Pay off?’, Carnegie Europe, 4 August 2017, http://carnegieeurope.eu/2017/08/04/can-macron-s-gamble-to-save-eu-pay-off-pub-72733.

130  Davor Jančić adverse consequences through citizens’ apathy, disengagement and, ultimately, disempowerment.17 On the other hand, it is submitted that while this initiative has correctly centred on bottom-up democratisation,18 it exposes the risks associated with its politicisation potential, expertise possession, policy complexity and over-simplification. Second, this chapter uses democratic conventions as a starting point for a broader reflection on citizen-oriented developments at the European and national levels. This is necessary because we are witnessing a trend towards the institutionalisation of citizens as direct participants in EU governance to a greater extent than before. The focus is on two inquiries. One examines the implications of increased citizen involvement in EU affairs for the relationship between representative democracy, on which the EU’s functioning is founded (Article 10(1) TEU), and participatory democracy in the Union, which enhances it (Article 11 TEU). The other discusses the complementarity between Macron’s democratic conventions and the Commission’s citizens’ dialogues, both of which have reached out to citizens directly to debate the different facets of the Union’s evolution. The aim is to assess the extent to which these processes may contribute to the EU taking decisions ‘as openly and as closely as possible to the citizen’ (Article 10(3) TEU), rather than their becoming talking shops devoid of democratic credentials. It will be argued that the conventions create important links between representative and participatory democracy by fostering new roles for parliamentarians in the implementation of the convention processes.

II.  Envisioning EU Democratic Renewal President Macron’s vision of EU democratic renewal is inspired by the achievements of his En Marche! movement in the run-up to the 2017 French presidential election.19 Rather than providing a detailed set of policy proposals, he proposed a detailed vision where concrete policies were to be shaped after listening to citizens’ opinions as vehicles of input legitimacy.20 This was accomplished by adopting a non-partisan political attitude and by implementing a bottom-up logic to citizen involvement through two important mechanisms.21 One was decentralisation and the grant of wide autonomy to local communities. This enabled citizens very

17 Gutiérrez-Peris et al (n 16) 50. 18 See similarly M Avbelj, ‘What Future for the European Union?’ (2017) WZB Discussion Paper SP IV 2017–802, 22. 19 See the reflections in M Perottino and P Guasti, ‘Technocratic Populism à la Française? The Roots and Mechanisms of Emmanuel Macron’s Success’ (2020) 8(4) Politics and Governance 545–55; R Kuhn (ed), ‘The 2017 French Presidential and Parliamentary Elections’ (2017) 25(4) Modern & Contemporary France, Special Issue. 20 Gutiérrez-Peris et al (n 16) 47. 21 ibid 53–54.

From Paris with Love  131 easily to become members of the movement and organise local action committees, of which there were over 3,000.22 The other consisted of extensive door-to-door surveying of thousands of French people from May to July 2016 called ‘the long march’ (la longue marche), based on questionnaires providing people’s feedback on personal experiences and concerns. As these methods have also been applied to the organisation of the democratic conventions, it is important to investigate the aspirations underlying them. These have been outlined in Macron’s four key speeches. On 3 July 2017, less than two months after assuming office, Macron addressed the members of the French Assemblée nationale and the Sénat – convened jointly in the Congrès – and announced the launch of democratic conventions throughout Europe.23 At the root of the conventions lay the idea of a political Europe as opposed to one governed by proliferating bureaucratisation and merely technical debate of EU policies. The latter, argued Macron, understandably instils scepticism among the European peoples. The conventions’ rationale was therefore to politicise the very notion of integration rather than accept it as a given, and to engage with the peoples’ doubts in relation to the EU’s feasibility and prosperity, which were caused by multiple crises and divisions. Against the backdrop of the Parthenon, Macron gave another speech on 7 September 2017 on Pnyx Hill, the historical place of the Athenian popular assembly. He underlined that the rebuilding of Europe should take place by ‘radically criticising it because it would be wrong to leave the criticizing solely to those who hate Europe’.24 This idea of embracing the politicisation and contestation of the EU’s future could only be realised if citizens were to become central to a ‘constructive debate driven by critical thinking and dialogue’ that includes ‘entering into the detail of each question and its complexity’.25 To assert its values and address global challenges, the continent needed to forge a European sovereignty in parallel with national sovereignties. Yet, he argued that in order to build sovereignty beyond the Member States, citizens must be mobilised to have a direct say in the genesis of Europe’s foundational decisions rather than being marginalised, and asked for approval of the decisions already made on their behalf. It is this citizens’ mobilisation regarding the Union’s grand design which Macron sees as requisite in order to regain ‘primary energy’, ‘primary strength’, ‘primary ambition’ and ‘primary force’, and thereby ‘rediscover the zest of this European democracy’.26

22 C Stratulat et al, ‘En Marche l’Europe? A Strategy to Implement Democratic Conventions’ (2018) EPC Discussion Paper 5. 23 ‘Discours du Président de la République devant le Parlement réuni en congrès’, www.elysee.fr/ declarations/article/discours-du-president-de-la-republique-devant-le-parlement-reuni-en-congres. 24 Speech by the President of the French Republic, www.elysee.fr/emmanuel-macron/2017/09/11/ discours-du-president-de-la-republique-emmanuel-macron-a-la-pnyx-athenes-le-jeudi7-septembre-201. 25 ibid. 26 ibid.

132  Davor Jančić In a follow-up speech, delivered at the Sorbonne University in Paris on 26 September 2017, Macron further expounded his views.27 In the French tradition of constitutional rupture, he argued that the continent had reached the end of one form of integration, one which was pursued and achieved in isolation from the people. To usher in a new form of integration, he called for ‘greater democratic stringency’ by engaging with citizens in debates beyond binary yes-or-no polls that have characterised most EU-related referendums. Democratic conventions were to serve that purpose by setting in motion a process of 6–10 months of open and transparent pan-EU discussions with citizens on the reforms to be pursued. Hence, the conventions were to some extent conceptualised as an ideational antithesis of referendums: instead of asking citizens to vote in order to ratify a previously taken decision, citizens were to become the central actors in the public discourse which would not culminate in a vote, but would feed into the debate leading up to the European elections of 2019. This, Macron hoped, would reduce the fear of asking the people to decide matters, increase the legitimacy of EU evolution and pave the way for a more democratic Union. Speaking before the EP in Strasbourg on 17 April 2018, Macron elucidated the purposes of the democratic conventions. They were to ‘create this public European space which we have so often neglected’ and they would do so in the ‘spirit of experimentation and innovation’ by examining the ‘presuppositions and subtexts’ of the questions debated.28 His movement to refound Europe has had a significant impact among Members of the European Parliament (MEPs). In December 2017, some 70 MEPs rallied around his plans.29 The intention behind the democratic conventions was therefore to give EU democracy both a new substance and a new procedure, which would combine both participatory and deliberative modes of democratic involvement.30

III.  The Institutional Set-up and Context of the Democratic Conventions The democratic conventions took place in the context of a wider process of separate but complementary citizens’ consultations on the future of the EU which were conducted in parallel at the EU level in the period from 2017 to 2019. Although a 27 ‘Discours du Président de la République – “Initiative pour l’Europe: Une Europe souveraine, unie, démocratique”’, www.diplomatie.gouv.fr/IMG/pdf/26.09_-_discours_du_president_de_la_republique_-_ initiative_pour_l_europe_transcript__cle0cfdbe.pdf. 28 ‘Transcription du discours du Président de la République au Parlement Européen’, www.elysee.fr/ front/pdf/elysee-module-897-fr.pdf. 29 A Robert, ‘70 MEPs Join Pro-Macron Movement’, EurActiv, 11 December 2017, www.euractiv. com/section/all/news/70-meps-join-pro-macron-movement. 30 On the latter, see F Cengiz, ‘Bringing the Citizen Back into EU Democracy: Against the Input-Output Model and Why Deliberative Democracy Might Be the Answer’ (2018) 19(5) European Politics and Society 577–94.

From Paris with Love  133 strict division based on the level of governance is difficult to make due to the overlaps in their objectives and participants, the totality of the activities comprising this wider consultative process are presented below as its national and European components.

A.  The National Component The national component consisted of the democratic conventions, which took the form of various in-person events and online consultations with citizens. The core of this component was national-level and local-level meetings with citizens organised by government officials, mayors, national parliamentarians and civil society organisations. This initiative was endorsed as an ancillary issue at the informal European Council meeting on 23 February 2018, on the basis of a brief report by Macron.31 The initiative was taken up by all Member States except for the then withdrawing UK32 and took place largely from April 2018 to November 2018.33 The conventions were organised in accordance with a joint framework adopted by the Council in April 2018.34 This declared the non-partisan character of the conventions and encouraged participation by all citizens, particularly those critical of the EU. The hallmark of this framework was the flexibility and freedom given to the Member States, which were to implement the initiative on a voluntary basis and in accordance with the national contexts, traditions, procedures and practices as long as the principles of transparency, political pluralism, fairness and openness to all citizens were respected. The themes to be discussed were not set and it was left entirely to the Member States to decide what best suited their national debates. Coordination and co-organisation of events with EP and Commission offices in the Member States were welcomed. Member States were to prepare national summaries containing the key conclusions reached by the conventions. These were then to be synthesised by the Council and sent for consideration to the regular European Council meeting taking place in December 2018 and then as a contribution to the informal European Council meeting taking place in Sibiu, Romania on 9 May 2019, which was to discuss the EU’s future. However, the framework also underlined that the conventions’ aim was purely to gather ideas and inform deliberations by the Heads of State or Government so as to identify priorities for action. The conventions were therefore to be understood as being of a ‘consultative character, but not as a mandate for legislation’.35

31 See www.consilium.europa.eu/en/press/press-releases/2018/02/21/invitation-letter-by-presidentdonald-tusk-to-the-27-heads-of-state-or-government-ahead-of-their-meeting-on-23-february-2018. 32 Hungary initially intended not to participate, but later joined. 33 In France, democratic conventions began ahead of schedule on 17 April 2018. 34 Council of the EU, ‘Joint Framework on Citizens’ Consultations’, Doc No 8227/18, 23 April 2018. 35 ibid 2.

134  Davor Jančić Outside this framework, other arrangements included the setting-up of national steering committees, secretariats, task forces or boards to lead the conventions’ implementation. Besides government officials as the lead organisers in all Member States, national parliamentarians were also prominent in the convention processes, often helping to transform citizens’ feedback into concrete proposals. In France, for instance, a six-member cross-party working group devoted to the conventions was established within the Assemblée nationale,36 with eventually no fewer than 200 parliamentarians assisting to carry the conventions out.37

B.  The European Component The European component took the form of EU-wide online consultations managed by the Commission. This was implemented through a 12-question survey drafted by a Citizens’ Panel, itself a ‘significant democratic innovation’.38 The Panel was hosted by the European Economic and Social Committee in Brussels on 5–6 May 2018. It gathered 96 citizens randomly drawn from 27 Member States to reflect the EU’s diversity in terms of gender, age, socioprofessional background and place of living. The Panel’s purpose was to allow citizens to shape the consultations’ agenda. An evaluation of the participants in the Panel reveals that: for over 85% of them, the experience had positively influenced their view on the EU and increased their interest in and understanding of the Union’s functioning; the cultural diversity of the Panel was an asset that enriched discussions; linguistic differences were not an obstacle where equal access to translation services was ensured; fair, open and respectful interaction was paramount to successful deliberation; and the resulting survey questions were better as a result of their participation.39 This suggests that as long as expectations are managed, more participation and deliberation, based on first-hand involvement and transnational dialogue rather than purely on communication and information, can enhance the quality of EU democracy.40 The online survey was launched on Europe Day on 9 May 2018 and lasted until October 2018. As with the democratic conventions, the preliminary results were presented to the European Council meeting in December 2018, and the final results were presented in May 2019, a few weeks before the European elections.

36 Assemblée nationale, Rapport d’information no. 482 sur les conventions démocratiques de refondation de l’Europe, 7 December 2017. 37 M Leonard, ‘Macron Takes Aim at European Politics’, Project Syndicate, 27 March 2018, www.projectsyndicate.org/commentary/macron-2019-european-parliament-election-by-mark-leonard-2018-03. 38 A Zacharzewski, ‘Citizen Participation and the Future of Europe: A View from Civil Society’ in A Alemanno and J Organ (eds), Citizen Participation in Democratic Europe: What Next for the EU? (London, ECPR Press/New York, Rowman & Littlefield, 2021) 33–47, 41. 39 D Hierlemann and C Huesmann, ‘European Citizens’ Panel on the Future of Europe: Evaluation Report’ (2018) Bertelsmann Stiftung 8 ff. 40 ibid 18–19.

From Paris with Love  135 In parallel, the Commission has held an increasing number of citizens’ dialogues, enabling European Commissioners and other Commission officials to meet with citizens face to face in venues across the Member States as well as online in order to discuss EU policies and the future of European integration. Other officials – prime ministers, ministers, state secretaries, regional politicians and MEPs – often participate in citizens’ dialogues too. As a further complement, the Commission requested a special Eurobarometer on the future of Europe. Based on face-to-face interviews, a 240-page report was delivered by the social research company Kantar Public in November 2018.41 Therefore, the four-pronged process of consulting citizens – composed of democratic conventions, an EU-wide online survey, citizens’ dialogues and a special Eurobarometer – was not only comprehensive and multilevel, but also one that raised expectations about their impact.

IV.  Outcomes of the Democratic Conventions and the Wider Citizen Consultations A.  The National Component In December 2018, the Council published a joint report42 and summaries of the national reports on the democratic conventions.43 These reveal that some 1,700 events were organised in total, of which 1,082 alone were held in France, with 97 out of the 101 departments and 400 municipalities taking part. There, 54% of the events were held in villages and small towns, mobilising smaller communities across the country. However, France is an outlier. Most other Member States have organised far fewer events, ranging from moderate numbers (119 in Germany, around 100 in Bulgaria and Spain, and 60 in Portugal) to low numbers (24 in Lithuania, 22 in Czechia, 21 in Belgium, 15 in Poland, 11 in Hungary, 9 in Estonia and Luxembourg, and 7 in Greece and Malta). In many Member States, national-level online citizens’ consultations were held in addition to the in-person events and the Commission’s online survey. However, both in-person and online activities were often statistically insignificant due to low participation numbers.44 Even France’s record 70,000 participants account for but a fraction of the country’s total population. The key general finding across the conventions was that, despite numerous challenges, citizens were predominantly positive about European integration

41 Special Eurobarometer 479, ‘Future of Europe’, November 2018. 42 Council of the EU, ‘Citizens’ Consultations – Joint Report’, Doc No 14535/18, 3 December 2018. 43 Council of the EU, ‘Citizens’ Consultations – Executive Summaries’, Doc No 14791/18, 4 December 2018. 44 For example, only 1,542 citizens participated digitally in Greece, while only some 1,500 participated face to face in Poland.

136  Davor Jančić and saw it as a force for good.45 Importantly, citizens’ regular participation in EU democracy was repeatedly seen as vital for the Union’s long-term development, despite the prevailing feelings of insufficient information about the EU and its institutional complexity. In terms of sectoral policies, most citizens agreed that the EU should take more decisive action on: (a) migration and the cognate policies concerning asylum, external border control, terrorism, organised crime and cybersecurity; (b) environmental and climate protection, with a particular emphasis on sustainability; and (c) education, both about the EU as such and as a policy field of its own. Opinions were more divided on matters such as taxation, social protection and eurozone membership. Other matters highlighted by citizens included the importance of the single market and greater investment in artificial intelligence, research, innovation, digitalisation and entrepreneurship. Many citizens were also concerned about the divisions between the Member States (‘old’ vs ‘new, ‘West vs ‘East’, ‘big’ vs ‘small’ and ‘multi-speed Europe’), about the protection of the founding EU values and national traditions, and about the need to apply the subsidiarity principle, allowing EU action only when it adds value. Although the EU’s role on the global stage was not a prominent topic, the citizens stressed the lack of unity, influence and credibility in the Union’s external relations. The recommendations from the democratic conventions were mainly addressed at the EU. However, in some Member States, the addressee was the national government. In Germany in particular, the conventions were understood as ‘a message and a mandate’46 for the Federal Government, whose report provides a list of promises to uphold the citizens’ recommendations.

B.  The European Component From December 2018 to late April 2019, the European Commission published five documents on the online survey and the citizens’ dialogues: two commissioned interim reports prepared by Kantar Public,47 one contribution each to the December 2018 and May 2019 European Council meetings,48 and a summary of the key conclusions.49 These provide the following insights. 45 Brexit was not a salient issue, having been mentioned only in a few Member States, where it was identified both as concerning and as catalysing a sense of togetherness among the remaining Member States. 46 Council of the EU (n 43) 38. 47 European Commission, ‘Online Consultation on the Future of Europe: Interim Report’, 11 December 2018; European Commission, ‘Online Consultation on the Future of Europe: Second Interim Report’, 30 April 2019. 48 European Commission, ‘Citizens’ Dialogues and Citizens’ Consultations: Progress Report’, 11 December 2018; European Commission, Communication ‘Europe in May 2019: Preparing for a More United, Stronger and More Democratic Union’ COM (2019) 218, 30 April 2019. 49 European Commission, ‘Citizens’ Dialogues and Citizens’ Consultations: Key Conclusions’, 30 April 2019.

From Paris with Love  137 The aforementioned online survey yielded a total of 85,983 responses in the period from 9 May 2018 to 2 April 2019. Of these, most participants were men (65%)50 and came from France (24,429), Germany (11,406) and Hungary (8,367), while 14 Member States attracted fewer than 1,000 participants. The total number of citizens’ dialogues held during the Juncker Commission was 1,572: 53 in 2015, 73 in 2016, 317 in 2017, 820 in 2018, and 309 up to April 2019.51 This is a considerable increase in frequency compared to the figures under the Barroso Commission, which had organised a total of 51 such dialogues during the period from September 2012 to March 2014. In this way, the Juncker Commission engaged with 194,000 participants and 1.6 million viewers through web streaming. The special Future of Europe Eurobarometer reached a further 27,339 citizens. The outcomes of the European component broadly converged with those of the national component, particularly concerning the overall positive attitude towards the EU, further harmonisation, and the prioritisation of policies on migration, terrorism, the environment and climate change, the digital economy, education, and foreign affairs and defence. In addition, citizens identified political extremism as the Union’s main risk. For its part, the Commission emphasised the paramountcy of effective and coordinated communication about the EU, which it urged should be a shared responsibility of all EU and national institutions. Saliently, it called for dialogue with citizens to become permanent, while underlining the importance of countering disinformation and increasing the public’s knowledge about the EU.

C.  EU Institutional Follow-up In response, the European Council meeting convening on 13–14 December 2018 explicitly welcomed the citizens’ dialogues and consultations, describing them as an ‘unprecedented opportunity’ for citizen engagement and as potential inspiration for the future, but without committing to implementing any particular outcomes.52 On the contrary, the informal European Council meeting that took place in Sibiu on 9 May 2019 did not mention citizen consultations at all. It only adopted a declaration in which the Heads of State or Government issued the following commitment: ‘we will continue to listen to the concerns and hopes of all Europeans, bringing the Union closer to our citizens, and we will act accordingly, with ambition and determination’.53

50 Some participants did not indicate their gender. 51 European Commission (n 49) 5. 52 European Council, Conclusions, Doc No EUCO 17/18, 14 December 2018, point 15. 53 European Council, Sibiu Declaration, 9 May 2019, www.consilium.europa.eu/en/press/pressreleases/2019/05/09/the-sibiu-declaration.

138  Davor Jančić The resulting Strategic Agenda 2019–24, adopted by the European Council on 20 June 2019, identified the protection of citizens and freedoms as the EU’s first priority,54 highlighting that, in order to deliver on the priorities set, ‘it will be important to engage with citizens, civil society and social partners, as well as with regional and local actors’.55 It has correctly been argued that this declaration closely resembles the above-mentioned Bratislava and Rome Declarations, and that, characterised by vague wording and rhetoric, it does not represent a crucial turning point for future EU development.56 However, while the previous Strategic Agenda, covering 2014–19, already advanced the narrative of the citizens’ security and of their empowerment and protection, there was no mention of engagement with citizens, making this a welcome addition in the new agenda, which symbolises the need for action with citizens and not only for citizens. The manifestos for the 2019 European elections of the four major European political parties provide a mixed picture. While the European People’s Party (EPP) only promised to foster parliamentary democracy, focusing on bolstering the EP, national and regional parliaments and the Spitzenkandidat system,57 the Party of European Socialists (PES) explicitly mentioned ‘empowering citizen participation from the local to the European level’.58 In the context of EU democracy, the Greens’ manifesto spoke of active citizens’ involvement and enabling citizens to propose and approve EU treaty reform,59 while that of the Alliance of Liberals and Democrats (ALDE) only supported a Union that is ‘closer to its citizens’.60 However, none of these manifestos referenced citizen consultations that had taken place. In the same vein, the EP’s election stock-taking resolution called for the CoFoE to be inclusive, interactive and consequential for the institutional architecture of the EU,61 but ignored the extensive process of conventions and consultations which was specifically designed to precede and inform this election. Thus, although the policy issues that galvanised citizens’ turnout in the 2019 European elections broadly coincided with those identified by citizens in the national and European consultation components presented above,62 it is not possible to infer any causality 54 The remaining three priorities are: developing a strong and vibrant economic base; building a climate-neutral, green, fair and social Europe; and promoting European interests and values on the global stage. 55 See www.consilium.europa.eu/media/39914/a-new-strategic-agenda-2019–2024.pdf. 56 A Thieme and I Galariotis, ‘The European Council’s Strategic Agenda 2019–2024’ (2020) EUI School of Transnational Governance Policy Brief 2020/03, 6–7. 57 EPP, ‘Let’s Open the Next Chapter for Europe Together’, Manifesto, 12. 58 PES, ‘A New Social Contract for Europe’, Manifesto, 4. 59 Greens, ‘Time to Renew the Promise of Europe’, Manifesto, 11 and 15; Greens, ‘Priorities for 2019: What European Greens Fight For’, 1. See also M de Groot, ‘Let Us Gain Control over the Future of Europe! The Case for Citizen-Driven EU Treaty Change’ in A Alemanno and J Organ (eds), Citizen Participation in Democratic Europe: What Next for the EU? (London, ECPR Press/ New York, Rowman & Littlefield, 2021) 188–200, 194. 60 ALDE, ‘Freedom, Opportunity, Prosperity: The Liberal Vision for the Future of Europe’, Manifesto, 10. 61 EP, Resolution of 26 November 2020 on stocktaking of European elections, Doc No P9_ TA(2020)0327, point 34. 62 D Braun and C Schäfer, ‘Issues That Mobilize Europe: The Role of Key Policy Issues for Voter Turnout in the 2019 European Parliament Election’ (2022) 23(1) European Union Politics 120–40.

From Paris with Love  139 between the two. This confirms the need to improve citizens’ participation in the European political parties’ decision-making processes.63

V.  Assessment in Light of the EU’s Existing Democratic Settlement In an EU governed by a combination of supranational and intergovernmental institutions, with multiple channels of democratic expression, how is one to make sense of the democratic conventions and the wider citizen consultation process? This section discusses the benefits and pitfalls of the democratic conventions,64 before situating them within the existing constitutional landscape of EU democracy.

A. Benefits One of the key advantages of the democratic conventions was their rootedness at the national level.65 Rather than being dictated top-down from the EU level, this was a bottom-up citizen participation exercise that was devised, approved, managed and implemented by the Member States simultaneously. This helped to engender a sense of local ownership, albeit only modestly. Another significant benefit was the conventions’ pan-European nature, illustrated by the breadth of the initiative’s take-up by the Member States. Despite the vast variety of political views on European integration, this was not an obscure event held by a few keen Member States. The fact that all Member States except for the exiting UK took part demonstrates the widest possible consensus about citizens’ disempowerment and that involving citizens directly in decisions on the EU’s future is no longer optional. The comprehensiveness of the conventions was equally beneficial in supporting citizens’ democratic engagement. This was not a small-scale event, but one that lasted several months and involved a variety of political institutions, cultural and civil society organisations, educational establishments (schools and universities), research institutes and consultancies, business representatives, trade unions and the various media. The Member States applied a multitude of qualitative and

63 S van Hecke (lead author), ‘Reconnecting European Political Parties with European Union Citizens’ (2018) International IDEA Discussion Paper 6. 64 C Chwalisz, ‘Can Democratic Conventions Save the EU?’, Centre for Public Impact, 1 December 2017; C Stratulat and P Butcher, ‘The European Citizens’ Consultations: Evaluation Report’ (2018) EPC and the Democratic Society, https://www.epc.eu/en/Publications/The-European-Citizens-Consult~267d84. 65 P Butcher and S Pronckutė, ‘European Citizens’ Consultations: Consultation Begins at Home’ (2019) 18(1) European View 80–88, 81.

140  Davor Jančić quantitative methodologies and formats,66 all in an effort to reach out to as many citizens as possible while ensuring that the participants reflect the make-up of the society. The conventions also embodied a recognition of the necessity of political inclusion. The commitment to involving not only the convinced Europhiles and Eurosceptics, but also the citizens who are ‘indifferent’ towards the EU,67 or otherwise politically neutral, inactive or disengaged. Concomitantly, the conventions helped to address the opaqueness of EU decision-making by fostering the transparency and publicity of the debate. In theoretical terms, uniting all Member States around one and the same citizen-oriented project has an important constitutional implication, which is that the citizen is placed at the heart of the EU democratic process. Macron himself in fact juxtaposed citizens against other forms of democratic involvement, such as political parties, parliaments and executive institutions. Citizens are effectively coming to be seen as a new informal collective institution of the EU, worthy of being regularly and directly asked for political input. One may indeed argue that the conventions represented an ‘innovative application of subsidiarity’ to citizens’ engagement in decision-making.68 From that perspective, the democratic conventions were something of a constitutional precedent that made national-level citizen involvement in debates on the Union’s future politically unavoidable. The organisation of National Citizens’ Panels within the CoFoE is a concrete manifestation of this.

B. Pitfalls As a means of democratic participation, citizen consultations in general, and the 2018 conventions and the wider consultation process in particular, run a number of risks that may affect their added value, effectiveness and legitimating potential.69 Some of these risks correspond to the more general normative objections to non-electoral forms of democracy70 and can be grouped into three categories. 66 These included the more traditional town hall meetings, large public events, small focus groups, different kinds of interactive debates, opinion polls, quizzes, but also the use of social media, livestreaming, online questionnaires, crowdsourcing of ideas and live chats, as well as artistic and cultural events, such as musical and theatrical performances, children’s activities and fairs. 67 Council of the EU (n 34) 2. 68 Butcher and Pronckutė (n 65) 83 and 86. 69 C Chwalisz and D van Reybrouck, ‘Macron’s Sham Democracy’, Politico, 12 February 2018, https:// www.politico.eu/article/macron-populism-sham-democracy-plans-to-revamp-decision-makingdisappointing; M Munta, ‘The Empty Taste of Macron’s Citizens’ Consultations’, EurActiv, 11 April 2018, https://www.euractiv.com/section/future-eu/opinion/the-empty-taste-of-macrons-citizensconsultations/. 70 F Cheneval and M Ferrín, ‘Referendums in the European Union: Defective by Birth?’ (2018) 56(5) Journal of Common Market Studies 1178–1194.

From Paris with Love  141 The first category of risks refers to politicisation and the capacity for citizens’ consultations to drive the public opinion on the EU. To begin with, there is no assurance that the consultations can generate meaningful political conflict. The over-generalisation and over-simplification of the topics and policy solutions presented to citizens in both convention gatherings and online consultations can detract from thorough critical assessment of the different alternatives and their impacts advocated by Macron. Often, crucial preliminary discussions of the entire range of options, models and consequences of European integration were missing. Increasing the frequency and quality of consultations might therefore help to address the gaps left by one-off consultation exercises. Further, the conventions suffered from a degree of executive capture, because national governments played a very dominant role in organising them and in setting their agendas despite the proclaimed bottom-up nature of the consultation process.71 In Poland, for instance, one of the main ideas of the conventions was indeed to present the Government’s stance on the EU.72 The keynote speaker in four out of the seven convention events held in Greece was the Alternate Foreign Minister responsible for European Affairs. While some Member States implemented the conventions through partnership with civil society organisations or through an open application process, governments remained important facilitators of the conventions. Equally, the touted transpolitical character of the conventions and citizens’ consultations did not suffice to ensure democratic involvement beyond the welleducated social milieus. The real challenge is precisely to reach the ‘unorganised citizens’,73 those who may not be active through civil society organisations, and those who are ‘neutral’74 or who simply do not hold strong political views on EU matters. The representativeness of the participants and of the opinions expressed by them was therefore wanting.75 The transnational ambitions of the conventions and the wider consultations must also be questioned, because there was no cross-fertilisation between the debates held in different Member States and across the different sectors of society. Other than in some live webstreams, there was not much cross-country dialogue, one in which the same policy could be discussed between those affected in different Member States. Yet, the fact that cross-border debate is important is attested by the Commission’s implementation of the ‘Transnational Citizens’ Dialogues’ pilot project between May 2018 and April 2019, gathering some 2,300 citizens for

71 See similarly Gutiérrez-Peris et al (n 16) 48. 72 Council of the EU (n 43) 124. 73 A Alemanno, ‘Europe’s Democracy Challenge: Citizen Participation in and beyond Elections’ (2020) 21 German Law Journal 35, 39. 74 Gutiérrez-Peris et al (n 16) 58 and 60. 75 P Butcher and C Stratulat, ‘Ambiguity in Diversity: Analysis and Evaluation of the 2018 European Citizens’ Consultations’ in Committee of the Regions, From Local to European: Putting Citizens at the Centre of the EU Agenda (Brussels, Committee of the Regions, 2019) 81–85, 82.

142  Davor Jančić in-person meetings in 14 cross-border regions across the EU.76 Another instance of the push to transnationalise the EU public debate is the organisation by the Commission and the Bertelsmann Stiftung of a first fully online transnational citizens’ dialogue on 27–30 October 2020, in which the citizens of five Member States – Denmark, Germany, Ireland, Italy and Lithuania – took part.77 The second category of risks concerns procedure and operation. The agreed joint framework was very loose and, while its flexibility enabled decentralisation and autonomy in terms of deciding the conventions’ implementation, it hampered consistency and coherence across the Member States and the comparability of the outcomes.78 A concrete example of this is the lack of an agreed definition of what counts as a democratic convention. As a result, the differing interpretations caused an imbalance in the number of the convention events organised. An analysis suggests that France took a very wide approach, where even theatrical performances were classified as a convention, while the Netherlands took a more restrictive approach and reported a handful of more focused activities.79 Furthermore, the parallel conduct of the democratic conventions and Commission-led citizen dialogues has been criticised because the former ‘essentially duplicated’80 the latter, which themselves were ‘not an appropriate means’81 to involve local actors in the EU debate because they could not generate local ownership of the dialogue. However, this is unsurprising, given that, from the start, citizen dialogues have officially been aimed at informing people and viewed as a ‘communication tool’,82 and not necessarily as one of participation or deliberation. Additionally, the inconsistent holding of citizens’ dialogues prevents them from having a more lasting effect on the EU public sphere: namely, following a spike in citizens’ dialogues during the democratic conventions process, the von der Leyen Commission only held 233 such dialogues in the period from 2 December 2019 to 9 March 2022.83 It is thus necessary to delineate the objectives of and mutual relationship between the different channels of citizen involvement in EU governance with much greater clarity.

76 A Giordani, ‘Transnational Citizens’ Dialogues’ in Committee of the Regions (n 75) 67–70. 77 See https://conference-observatory.eu/wp-content/uploads/2021/05/ZD_Transnational_Digital_ Citizens_Dialogue.pdf. 78 Zacharzewski (n 38) 42; Stratulat and Butcher (n 64) 40 ff; M Nominacher, ‘Let’s Talk about Europe: A Review of the Proposal for Pan-European Citizens’ Consultations’, Jacques Delors Institut Berlin Blog, 27 February 2018, https://www.delorscentre.eu/en/publications/detail/publication/letstalk-about-europe-a-review-of-the-proposal-for-pan-european-citizens-consultations, 4. 79 Butcher and Pronckutė (n 65) 82. 80 ibid 80. 81 ibid 86. 82 European Commission, ‘Citizens’ Dialogues as a Contribution to Developing a European Public Space’ COM (2014) 0173, 24 March 2014, 2. 83 See https://ec.europa.eu/info/events_en?facet__select__field_core_event_collection=122922&field_ event_date_value_1[date]=10-07-2022&facet__checkboxes__field_event_external_event=off.

From Paris with Love  143 Also, there were little to no safeguards against the possibility of using the conventions to promote extreme, illiberal or populist views, which Macron wished to eliminate. However, this problem did not materialise in the conventions, because such views were not prominent.84 The third category of risks doubts the influence of the conventions and the wider consultations, and their ability to give citizens a say on the EU’s purpose and its future development.85 The success of citizen consultations in general crucially depends on their outcomes and whether (and, if so, how) the citizens’ policy recommendations are implemented. Gauging influence in this instance is severely hampered by the fact that citizens were not given a clear explanation of what EU action might ensue or, at least, what the implications of the citizens’ answers would be. This makes it virtually impossible to trace what, if any, follow-up there has been as a consequence of the citizens’ input. Instead, there is a risk for the priorities identified by citizens to be ignored. It is therefore essential to ensure the openness of national governments and EU institutions towards actions that may contradict their own positions.86 For these reasons, although the conventions and the wider consultations are laudable for their noble overall aims, the aforementioned risks may further alienate citizens rather than integrate them into EU governance. This in turn reduces the possibility for the Union to rely on citizen consultations as a source of democratic legitimacy.

C.  The Relationship with Other Forms and Instruments of EU Democracy Macron’s democratic conventions initiative raises a broader issue of the citizens’ place in EU policy-making and democratic reform. Although limited in its achievements, the initiative reinforces the idea of the European citizen as the subject rather than the object of democratic legitimacy. This necessitates an inquiry into the initiative’s place among the existing mechanisms of EU democracy, both those of a more direct nature such as the European Citizens’ Initiative (ECI) and referendums as well as those of a representative nature, rooted in the evolving roles of the EP and national parliaments in EU law-making. First, the key advantage of the ECI lies in its formal character, which forces the Commission to take action, even if only to reject an ECI, and to justify its decision. It also enables civil society organisations to raise awareness of often polarising 84 Butcher and Pronckutė (n 65) 83. 85 ibid 81. 86 R Youngs, ‘Can Emmanuel Macron’s Big Gamble to Save the EU Really Pay off?’, The Conversation, 4 August 2017, https://theconversation.com/can-emmanuel-macrons-big-gamble-tosave-the-eu-really-pay-off-81980.

144  Davor Jančić policy issues. Yet, despite improvements in the ECI’s legal regime,87 it remains a cumbersome and limited instrument of democratic participation. Due to its informal character, the promise of the conventions’ actual influence is even more remote than that of the ECIs. Nevertheless, convention-type citizen involvement enriches the ECI process by recognising that direct influence on EU legislation is not the only objective of democratic involvement. Instead, it shifts the focus towards debate and deliberation about European integration in general rather than about effecting very specific policy change, as is the case with the ECI. Second, a well-known democratic instrument directly empowering citizens is national referendums on EU matters.88 However, one comprehensive study has shown that about a third of all EU-related referendums are politically motivated and strategically organised to garner support for a certain course of action.89 This bears a strong correlation to the democratic conventions – namely, there is a tension between Macron’s insistence on the conventions being as open and inclusive as possible, and the fact that his own proposals for EU reform are fairly inflexible and contested among national and European political parties. If the desired policy destination has already been set, one wonders what impact convention-type initiatives might have if their outcomes diverge from that destination. This tension may therefore erode their credibility and frustrate their evolution into a more permanent method of public participation. Third, the dominant tenor of the democratic conventions was for them to inform the May 2019 European Parliament elections and mobilise the voters. While at 50.62%, the turnout was indeed the highest in the last 20 years, Macron’s aim of winning a substantial presence in the EP90 puts the conventions into perspective as they may be seen as a device to frame or steer the public discourse while maintaining the image of impartiality. Despite this, the participation of many MEPs in convention activities helps to strengthen their national and local visibility, and inject different political views into the debate. The EP has also been a strong supporter of direct citizen involvement,91 having organised several citizens’ agoras and having advocated their incorporation within the CoFoE.92 Fourth, Macron’s democratic conventions have supplemented the European roles of national parliaments, inviting them to serve as a link between governance 87 See more in ch 11 by Mario Mendez in this volume. 88 See a discussion on potential pan-EU referendums in E Poli, ‘An EU-Wide Referendum: Potential Threat or Tool of Empowerment?’ in S Blockmans and S Russack (eds), Deliberative Democracy in the EU: Countering Populism with Participation and Debate (Brussels, CEPS/London, Rowman & Littlefield, 2018) 269–80. 89 F Mendez et al, Referendums and the European Union: A Comparative Inquiry (Cambridge, Cambridge University Press, 2014) 221. 90 N Vinocur and M de la Baume, ‘Emmanuel Macron’s Plan to Conquer Europe’, Politico, 26 September 2017, https://www.politico.eu/article/how-emmanuel-macron-hopes-to-conquer-europeunion-germany-angela-merkel/. 91 EP, Resolution of 7 July 2021 on Citizens’ Dialogues and Citizens’ Participation in the EU Decision-Making, Doc No P9_TA(2021)0345. 92 EP, Resolution of 15 January 2020 on the European Parliament’s Position on the Conference on the Future of Europe, Doc No P9_TA(2020)0010, points 9–12.

From Paris with Love  145 and participation. This is illustrated by two examples. On the input side, the Danish Folketinget organised ‘four dialogue meetings and one citizens’ consultation’ within the framework of the conventions.93 On the output side, the outcomes of the Polish conventions were presented to a joint meeting of the Sejm and the Senate.94 However, one Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC) survey demonstrates that national parliaments’ own understanding of their relationship with the citizens of their Member State is still somewhat uneasy.95 Concretely, as a way to promote European integration, enhanced input from citizens trails behind improved interparliamentary cooperation and scrutiny of draft EU legislation. Ironically, it was the parliaments of two Member States experiencing rule of law backsliding – Hungary and Romania – that have proposed clearer and more regular communication with citizens, promoting greater information access and exchange, collecting citizens’ requests on EU policies, and transposing them into political action or legislation. The above overview shows the symbiosis, or ‘fusion’,96 between representative democracy and the more direct and participatory modes of democratic involvement. Although this symbiosis is still nascent, there is clear evidence of a wider, global move towards enhancing parliaments’ public engagement directly with citizens.97 However, the slowly developing links between the different forms of EU democracy also expose the formidable challenges of transforming citizens into autonomous agents of democratisation. Both the EP and national parliaments act as necessary institutional engines through which citizens’ voices receive political expression. Without them, citizens remain an amorphous and decentralised, albeit constitutionally revered, source of public power.

VI.  Concluding Remarks The rise of citizen-focused proposals aimed at EU democratic renewal, including various citizen consultations, is a response to the amplifying ‘unease over democracy in the Union and the democratic nature of the Union’.98 This unease is rooted in the challenges associated with successive crises, rising incidences of illiberalism and Euroscepticism, institutional opaqueness and remoteness, the lack

93 Council of the EU (n 43) 25. 94 ibid 125. 95 COSAC Secretariat, 27th Biannual Report, 3 May 2017, 23. 96 S Blockmans, ‘Participatory Fusion: How to Galvanise Representative Democracy with Deliberative Tools’ in S Blockmans and S Russack (eds), Deliberative Democracy in the EU: Countering Populism with Participation and Debate (Brussels, CEPS/London, Rowman & Littlefield, 2018) 357–81. 97 Inter-Parliamentary Union, ‘Global Parliamentary Report 2022 – Public Engagement in the Work of Parliament’, 2022. 98 Editorial Comment, ‘Talking about European Democracy’ (2017) 13(2) European Constitutional Law Review 207–20, 207.

146  Davor Jančić of recognisable patterns of accountability, agencification and the uneven enforcement of EU policies. The foregoing analysis exposes a tension between the institutions’ desire to bring citizens closer to the EU’s centres of power and the citizens’ institutional weakness. EU citizen consultations in general have been described as ‘participatory governance of the lowest rank’.99 The democratic conventions and the wider consultation process merit a similar label owing to their being non-binding, scarcely representative and transnational, without procedural mechanisms for generating cross-country and cross-level commonalities and coherence, and without any follow-up to citizens’ recommendations that could indicate any degree of influence. Whereas influence on decision-making stricto sensu was not one of the conventions’ objectives in the first place, influence on agenda setting was, but this did not materialise because the entire consultative process was ignored in the subsequent EU institutional discourse.100 As a politically low-cost means of fulfilling the promise of greater citizens’ involvement in EU governance, citizens’ consultations carry a risk for their institutionalisation in EU public law to turn into their instrumentalisation for democratic claims-making.101 In this sense, the conventions had a minimal impact on the reduction of the democratic deficit and the enhancement of the European public sphere. However, their key added value lay in raising the awareness of the multiplicity of the constitutional and democratic roles that citizens could play. Not only do they act as voters, requested to ‘listen’ to the policy options proposed to them for endorsement at elections, but they also act as advisers, invited to ‘speak up’ on the policies to be made in their name by the EU’s institutions. This, it is hoped, will strengthen the input legitimacy of EU action and reduce the disconnect between citizens and EU institutions. Although the conventions themselves cannot be held to have fulfilled this purpose, they helped to entrench the idea of citizens’ direct democratic agency into the EU reform process and enabled lessons to be learnt about participatory and deliberative democracy in the Union. The CoFoE demonstrates the latter quite well. Its architecture of multilevel citizen consultations, composed of European and national components, is likely to have been inspired by the multipronged conventions process. The CoFoE also features a formal feedback mechanism forcing the Commission to report on the follow-up to citizens’ recommendations, addressing

99 Labitzke (n 2) 332. 100 P Butcher and C Stratulat, ‘The European Citizens’ Consultations Deserve Pride of Place at Von der Leyen’s Conference’, EPC Commentary, 5 September 2019, https://www.epc.eu/en/Publications/ The-European-Citizens-Consultations-deserve-pride-of-place-at-von-der~21c488, 1. 101 See similarly P Leino, ‘Disruptive Democracy: Keeping EU Citizens in a Box’ in S Garben et al (eds), Critical Reflections on Constitutional Democracy in the European Union (Oxford, Hart Publishing, 2019) 295–316; A Alemanno, ‘Beyond Consultations: Reimagining EU Participatory Politics’, Carnegie Europe, 5 December 2018, https://carnegieeurope.eu/2018/12/05/beyond-consultationsreimagining-eu-participatory-politics-pub-77873.

From Paris with Love  147 the uncertainty surrounding the conventions’ impact.102 Finally, as a consequence of the CoFoE, the Commission promised to launch a ‘new generation of Citizens Panels’ to inform policy-making on ‘certain key proposals’.103 While this needs thrashing out, it is plausible that Macron’s conventions initiative and the parallel wider citizens’ consultation process taking place in 2018 have paved the way for a more permanent involvement of citizens in EU democratic governance.

102 P Butcher and C Stratulat, ‘Citizens Expect: Lessons from the European Citizens’ Consultations’, EPC Discussion Paper, 21 May 2019, https://www.epc.eu/en/Publications/Citizens-expect-Lessons-fromthe-European-Citizens-Consultations~26c3d4, 6–7. 103 European Commission, ‘Conference on the Future of Europe: Putting Vision into Concrete Action’ COM (2022) 404, 17 June 2022, 5.

148

8 The Conference on the Future of Europe Bringing the EU Closer to its Citizens? MAAIKE GEUENS

I. Introduction On 14 July 2019, European Commission President Ursula von der Leyen presented her political agenda for 2019–24.1 In it, she underlined the importance of citizens in shaping the future of the European Union (EU), submitting that the inclusion of citizens would increase the Union’s democratic legitimacy by ‘giving Europeans a stronger role in decision-making’.2 Gathering citizens and allowing them to debate different policy issues often leads to more nuanced policy conclusions, helping to create new and more refined policy proposals.3 Involving citizens in what is typically reserved for politicians may thus contribute to more equal democratic participation and better reasoned decisions.4 While the organisation of the Conference on the Future of Europe (CoFoE) as a step towards greater citizen involvement is new,5 the method of the Conference is not.6 Similar deliberative and participatory exercises have taken place in the

1 U von der Leyen, ‘A Union That Strives for More: My Agenda for Europe – Political Guidelines for the Next European Commission 2019–2024’; EPRS, ‘Preparing the Conference on the Future of Europe’, 2019, 2; EPRS, ‘Conference on the Future of Europe’, 2020, 1–3. 2 Von der Leyen (n 1) 19. 3 V Jacquet and M Reuchamps, ‘Who Wants to Pay for Deliberative Democracy? The Crowdfunders of the G1000 in Belgium’ (2018) 10(1) European Political Science Review 29, 31; M Reuchamps, ‘Le G1000’ (2011) 72 Politique: Revue des Débats 64. 4 M Avbelj, ‘Revitalisation of EU Constitutionalism’ (2021) 46(1) European Law Review 3, 9; F Schimmelfennig, ‘The Conference on the Future of Europe and EU Reform: Limits of Differentiated Integration’ (2020) 5(2) European Papers 989; S Suteu, ‘Constitutional Conventions in the Digital Era: Lessons from Iceland and Ireland’ (2015) 38 Boston College International and Comparative Law Review 251, 252–53. 5 Avbelj (n 4) 3. 6 C Dobler, ‘Promise of Democratic Renewal or Shaky Idea? Recommendations for the Conference on the Future of Europe’, Ideas on Europe Blog, 20 March 2020, https://post-crisis-democracy. ideasoneurope.eu/2020/03/20/promise-of-democratic-renewal-or-shaky-idea-recommendations-forthe-conference-on-the-future-of-europe.

150  Maaike Geuens past, including the Convention on the Future of Europe, the European Citizens’ Consultations, the citizens’ dialogues, the European Citizens’ Panel on the Future of Europe, Plan D (Democracy, Dialogue and Debate), Debate Europe, the Europe for Citizens Programme, and the European Citizens’ Initiative (Article 11(4) of the Treaty on European Union (TEU)). These demonstrate the willingness of EU institutions to engage in more citizen-inclusive policy-making and debate. Although some scholars claim that not every citizen is involved in such participatory and deliberative efforts,7 evidence shows that citizens generally support them.8 Especially when EU representative democracy is combined with deliberative mechanisms, including the CoFoE, the overall inclusion of citizens is likely to increase.9 Deliberation is closely linked to democratic legitimacy because citizen participation in decision-making may increase such legitimacy.10 Dryzek argues that in many modern democracies, institutions are in fact becoming venues for citizen deliberation.11 In an ideal deliberative setting which aims to foster inclusive and egalitarian decision-making, participants (usually 20–500 of them), randomly chosen as a representative sample of the population, rely on objective information provided by experts to discuss different policy options in an atmosphere of mutual respect, after which they formulate policy recommendations.12 This chapter argues that the CoFoE has used the format of a deliberative mini public (DMP), whereby EU institutions transfer some of their decision-making authority to citizens through a deliberative process.13 The DMP used within the CoFoE takes the form of a citizen assembly. However, studies on the increasing use of deliberation have so far been limited to the local, regional, national or EU level. None has truly combined both national and EU perspectives.14 The few previous EU ‘deliberative’ experiments hardly ever included citizens as the determining actors and they were not organised on a pan-European scale,15 which is why they can neither be considered DMPs nor compared to the CoFoE. Conversely, this chapter focuses on national deliberative experiments through the lens of two Belgian case studies: the G1000 experiment and the Ostbelgien model. They have

7 J Edthofer et al, ‘Country Reports’ in M Alander et al (eds), Managed Expectations: EU Member States’ Views on the Conference on the Future of Europe (Brussels, European Policy Institutes Network, 2021) 10–31; Jacquet and Reuchamps (n 3) 32. 8 ibid. 9 Jacquet and Reuchamps (n 3) 32 and 42. 10 S Chambers, ‘Deliberation and Mass Democracy’ in J Parkinson and J Mansbridge (eds), Deliberative Systems (Cambridge, Cambridge University Press, 2012) 52–53. 11 JS Dryzek, Deliberative Democracy and beyond: Liberals, Critics, Contestations (Oxford, Oxford University Press, 2000). 12 See essays on the various aspects of it in Parkinson and Mansbridge (n 10). 13 J Bohman, ‘Representation in Deliberative Systems’ in Parkinson and Mansbridge (n 10) 86. 14 F Fabbrini, ‘The Conference on the Future of Europe: A New Model to Reform the EU?’ (2019) 12 Dublin City University Brexit Institute Working Paper Series 6–9. 15 ibid 7–9.

The Conference on the Future of Europe  151 been selected because: (a) they yield important insights into the necessary preconditions for DMPs, including the CoFoE, to be successful; (b) they illuminate the functioning of a DMP in a multilevel governance setting;16 and (c) they, like the CoFoE, combine online and in-person methods of selection and discussion of topics. The research objectives are: first, to verify whether and, if so, how national deliberative experiences are taken into account when developing the CoFoE; and, second, to shed light on the possible future outcomes of the CoFoE. By doing so, the chapter goes beyond the CoFoE and looks at integrating DMPs at the EU level. The starting point is the existing literature on deliberative democracy and DMPs. This is complemented by an analysis of the documents forming the basis of the Belgian and CoFoE projects, as well as the resulting recommendations and other outcomes. The chapter is structured as follows. Section II examines the Belgian deliberative examples by presenting their set-ups, benefits and drawbacks. This then serves as a benchmark for analysing the CoFoE. Section III analyses the CoFoE, its organisation and contribution to citizens’ involvement in EU policy-making. Section IV concludes that the CoFoE will neither contribute to increasing citizen participation in EU democratic governance nor have a lasting impact, unless citizens’ recommendations are crystallised in EU policy and the inclusion of citizens through DMPs is permanently added to the EU institutional constellation.

II.  Citizen Consultation Initiatives at the National Level: The Case of Belgium The Commission stated that the CoFoE found inspiration in previous deliberative experiments at both the EU and national levels.17 Of them, the national experiences proved to be quite successful. While the Belgian G1000 experiment was copied in various other countries such as the Netherlands and France, the Ostbelgien model is the world’s first institutionalised experiment where a parliament committed itself to taking citizens’ recommendations into account. These examples demonstrate that, provided that certain criteria are met, it is possible to organise impactful deliberative exercises. The G1000 and Ostbelgien DMPs are analysed in turn below.

16 P Bursens and P Meier, ‘Representation in Demoicracies: Contributions from Belgian Federalism for the Conference on the Future of Europe’ (2022) European Law Journal (forthcoming), https://doi. org/10.1111/eulj.12391. 17 Dobler (n 6); European Commission, ‘Shaping the Conference on the Future of Europe’ COM (2020) 27, 22 January 2020, 3.

152  Maaike Geuens

A.  The G1000 Experiment The G1000, which consisted of several panel sessions and an online poll, brought together 1,000 Belgian citizens over the course of several months in 2011–12. The organisation, process and challenges of the G1000 are well documented by Jacquet and Reuchamps.18 The first steps were taken by a Flemish writer, David van Reybrouck, who reached out to his fellow citizens to find a solution to the then ongoing Belgian government formation crisis. He stated that Belgium was not only suffering from a crisis as such, but also from a crisis of representative democracy. The solution lay in a new democratic tool enabling citizens to deliberate on political, societal, economic and other issues, and allowing them to act more than purely as voters. Van Reybrouck gathered a team of 25 experts and started the development of the instrument.19 The experiment was designed to complement representative democracy and reinvigorate Belgian democratic life.20 The organisational and scientific committee opted for a three-tiered approach.21 The initial stage, which took place in July 2011, consisted of a largescale online poll. Citizens put forward their most relevant issues and concerns. The three themes developed in the second phase were social security, immigration and wealth redistribution. The organisers gathered together 1,000 citizens on 11 November 2011, which they called ‘deliberation day’. The independently and randomly selected citizens were divided into 100 tables of 10 people. Armed with the necessary knowledge, they discussed the aforementioned three topics and formulated a number of proposals. In the following months, a smaller citizens’ panel refined these proposals so that they could be discussed during three deliberation weekends, which marked the end of the experiment.22 The theme of the final panel, making up the third phase of the G1000, was ‘how to address labour issues and unemployment in our society’. During each deliberation weekend, additional information was provided by experts in the field.23 The panel sessions were complemented by two other projects:24 an online discussion enabled by a newly

18 Jacquet and Reuchamps (n 3) 30–66; V Jacquet et al, ‘The Macro-political Uptake of the G1000 in Belgium’ in M Reuchamps and J Suiter (eds), Constitutional Deliberative Democracy in Europe (Colchester, ECPR Press, 2016) 53; D van Reybrouck, ‘Des Tranchées, en Flandre Aussi’ (2011) Le Soir 17. 19 Reuchamps (n 3) 64. 20 ibid 66. 21 D Caluwaerts and M Reuchamps, ‘Strengthening Democracy through Bottom-up Deliberation: An Assessment of the Internal Legitimacy of the G1000 Project’ (2015) 50 Acta Politica 151, 157; Jacquet et al (n 18) 53. 22 Jacquet et al (n 18) 55–56; Reuchamps (n 3) 64–65. 23 S Devillers et al, ‘When Researchers Become Designers: Critical Feedback from Our Role in Designing the G1000, the Permanent Citizen Dialogue and the Deliberative Committees in Belgium’, paper presented at the ECPR Joint Sessions of Workshops (Zoom, 26–27 May 2021); Jacquet et al (n 18) 56–57. 24 Caluwaerts and Reuchamps (n 21) 157.

The Conference on the Future of Europe  153 developed software and the organisation of several local deliberative events.25 In the end, a total of 704 participants participated in the panel sessions.26 To guarantee the experiment’s independence, funding for the G1000 was achieved through crowdfunding.27 Financial contributions were capped at a maximum of €35,000 per donor in order to avoid giving too much influence to any single individual or organisation. The crowdfunding campaign resulted in a budget of €300,000, received from around 3,000 supporters. This allowed participating citizens to be reimbursed for their travel expenses. The G1000 was furthermore supported by several hundred volunteers. That said, the decision on the topics for deliberation proved difficult. With the organisers not wanting to exclude any issues themselves, citizens were given an opportunity to decide the topics and set the agenda for the aforementioned ‘deliberation day’.28 A virtual suggestion box was launched and over 6,000 people responded. Besides, over 3,000 ideas were collected in person to allow for a broad inclusion of citizens. The entries were coded so as to enable a transparent, comprehensible and logical overview of the possible topics, which included not only institutional reform and political change but also open categories, whose purpose was to ensure that the thematic scope of deliberation was not limited. The coding was carried out by a specifically appointed methodological team, which was supervised by two external experts. The suggestions and themes were ranked on a five-star scale, based on the frequency and number of votes that each suggestion received from the public.29 No fewer than 25 of the most important themes and three of the questions perceived as being the most important were put forward to the 1,000 citizens during the three deliberation weekends.30 The final obstacle was the selection of participants. The inclusion of all citizens was important,31 as the idea was to give every Belgian citizen an equal opportunity to be present at the ‘deliberation day’. Initially, the organisers sought to hire an external institute to recruit citizens face to face, but this was deemed to be too time-consuming. The second-best option was randomised telephone selection using mobile phones and landlines. Because of the sheer number of citizens being reached this way (amounting to almost 99%), this proved to be the best selection method.32 Although representation of the entire population was impossible, the organisers achieved the most diversified set of participants possible.33



25 Jacquet

et al (n 18) 55. and Reuchamps (n 3) 33. 27 ibid 29–30. 28 Reuchamps (n 3) 65. 29 ibid 66. 30 Jacquet and Reuchamps (n 3) 33; Jacquet et al (n 18) 54; Reuchamps (n 3) 66. 31 Reuchamps (n 3) 66. 32 ibid. 33 Jacquet et al (n 18) 56–57; Reuchamps (n 3) 66. 26 Jacquet

154  Maaike Geuens The G1000 resulted in several recommendations and a report being sent to all the parliaments in Belgium.34 The Final Report provided 19 recommendations regarding labour issues and unemployment.35 While the presidents of different national and regional parliaments were present during the final stages of the G1000,36 the goal was never to oblige politicians or governments to take the G1000 output into account. It was designed to bring citizens together to discuss and deliberate on issues which they deemed important.37 It was meant to serve as an example of an innovative democratic instrument that could be used to complement the existing structures of representative democracy.38 The deliberative experiment yielded several important results. First, the Belgian political elite became aware of the opportunities of grassroots movements and their added value. Second, the G1000 experiment had an impact on the media, the political parties, the Belgian MPs and the public opinion. There was media coverage in all major Belgian newspapers before, during and after the G1000 process. A national survey also concluded that 52% of the respondents were aware of the G1000, which was more than in other cases in Belgium and abroad. There was also significant support for the recommendations produced. Although they did not result in new policy,39 citizen deliberation did make it into the political manifestos of several political parties during the 2014 electoral campaigns and several studies are ongoing on the implementation of such a DMP at the regional and local levels.40 The G1000 also served as an inspiration in several other Belgian cities and communities (such as Brussels, Grez-Doiceau, Kortrijk and Kuurne) as well as in other countries (for example, France, the Netherlands, Germany, Brazil and Switzerland). The positive experience with the G1000 paved the way for the development and organisation of the Ostbelgien model.

B.  The Ostbelgien Model Assisted by several experts involved in the G1000,41 the Parliament of the German-Speaking Community (Ostbelgien) adopted legislation in 2019 aiming to develop a permanent citizens’ panel.42 The Ostbelgien model was possible because 34 Jacquet and Reuchamps (n 3) 33. 35 G1000, ‘Final Report’ (2012). 36 Jacquet et al (n 18) 59. 37 D Caluwaerts and M Reuchamps, ‘The G1000: Facts, Figures and Some Lessons from an Experience of Deliberative Democracy in Belgium’ in D Caluwaerts et al, The Malaise of Electoral Democracy and What to Do about it (e-book, Re-Bel, 2014) 10–33. 38 Jacquet et al (n 18) 59. 39 Caluwaerts and Reuchamps (n 21) 170–71; Jacquet et al (n 18) 70–71. 40 See the detailed overview in Jacquet et al (n 18) 59–70. 41 Devillers et al (n 23). 42 ‘Dekret zur Einführung eines permanenten Bürgerdialogs in der Deutschsprachigen Gemeinschaft’, 25 February 2019, Official Journal 12 April 2019; G1000, ‘German-Speaking Community of Belgium Becomes World’s First Region with Permanent Citizen Participation Drafted by Lot: Ambitious Model

The Conference on the Future of Europe  155 of the Community’s small territory, its focus on local affairs, and the fact that most members of Parliament have jobs beyond their political mandates (thus helping to increase the sense that they are like ‘regular’ citizens and easier to access). The ease of engaging in informal contacts and the presence of a close-knit society thus facilitated the implementation of this DMP.43 Inspired by the G1000 experience, the Ostbelgien model uses a threefold structure, consisting of the Citizens’ Council, the Citizens’ Assemblies and the Secretary.44 The Council is permanent and determines the Assemblies’ discussion topics (which can be suggested online), decides their timetables, organises their meetings and monitors the follow-up to the Assemblies’ recommendations. The Council is composed of 24 members, drawn by lot amongst the members of the previous Citizens’ Assemblies. The Assemblies consist of 25–50 members, drawn by lot taking into account age, gender, geographical origin and socioeconomic status.45 Each Assembly deliberates on the topics chosen by the Council, provides recommendations and discusses follow-up with parliamentary representatives.46 The Secretary provides administrative and organisational support. The first Assembly addressed the topic of healthcare and took place over four sessions, the first in March 2020 and the final three in September 2020.47 Because of the COVID-19 pandemic, the sessions halted between March and August, and the Assembly reconvened in September. The overarching theme of healthcare was divided into different subthemes, such as the competence of the German-Speaking Parliament in this policy field, nursing as a profession, the education of nurses and care staff, staff training (including internships), support services for seniors in the form of residential structures, and, lastly, home care and support. The Assembly’s recommendations covered the promotion of the occupation, the reduction of costs for education, respect for the needs and autonomy of patients, quality control of all healthcare facilities and the reduction of administrative tasks. The discussion between Members of Parliament and representatives of the Assembly took place in July 2020 and the Assembly’s recommendations were submitted to Parliament

for Innovating Democracy Designed by G1000’, 26 February 2019, www.futuregenerations.be/sites/ www.futuregenerations.be/files/documents/news/20190226_dgpermanentcitizensassembly_pressrelease.pdf; C Niessen and M Reuchamps, ‘Institutionalising Citizen Deliberation in Parliament: The Permanent Citizens’ Dialogue in the German-Speaking Community of Belgium’ (2022) 75(1) Parliamentary Affairs 135–53. 43 C Niessen and M Reuchamps, ‘Designing a Permanent Deliberative Citizens’ Assembly: The Ostbelgien Modell in Belgium’ (2019) 6 Working Paper Series of the Centre for Deliberative Democracy and Global Governance 4 and 7–10. 44 ibid 10–14. 45 G1000 (n 42). 46 C Niessen and M Reuchamps, ‘Le Dialogue Citoyen Permanent en Communauté Germanophone’ (2019) 21 Courrier hebdomadaire du CRISP (Centre de Recherche et d’Information Socio-Politiques) 5–38. 47 ‘Empfehlungen der Bürgerversammlung vom 19. September 2020 zum Thema “Pflege geht uns alle an! Wie können die Pflegebedingungen für Personal und Betroffene verbessert werden?”’, 24 September 2021, www.pdg.be/desktopdefault.aspx/tabid-4630/8156_read-61582.

156  Maaike Geuens on 19 September 2020, in the presence of the Community’s Prime Minister, viceministers and parliamentary committee chairs. The competent parliamentary committees published their opinions in December 2020, underlining the added value of the assemblies’ recommendations and finding them to be ‘refreshing and inspiring as a new form of parliamentary work’.48 The Parliament organised further hearings on the issue of healthcare with the Assembly members in March 2022 and debated the issue during its plenary session in April 2022. The second Assembly addressed inclusive education and held two sessions in March 2021 and two in May 2021. The sessions had different themes: teacher education and training; the attitude of society as a whole towards education; cooperation between parents, the school and the children; support for parents; and the overall development of the educational landscape.49 During each session, the topics were introduced by experts and, where necessary, translation into German was provided. The recommendations on inclusive education – which covered teachers’ education in general, the inclusion of different societal groups within education, and the necessity to ensure a stronger link between society and education – were submitted to Parliament in June 2021 and are awaiting deliberation by the parliamentary committees. The hearings are scheduled to take place in the spring of 2023. The third Assembly, which concerned housing, began in October 2021 and ended in February 2022. The Assembly focused on different themes: affordable housing, alternative housing modes, housing for young people, housing in specific rural areas, and public and social housing. The recommendations were adopted in March 2022.50 They included suggestions for future studies to be carried out on the difficulties regarding housing for specific societal groups and different housing modes, but also on tax and other incentives to tackle, among other things, the lack of co-housing projects and the issue of tiny houses. A fourth Assembly focuses on digital skills. The meetings started in September 2022 and are scheduled to conclude in December 2022. Therefore, in terms of the citizens’ assemblies’ effectiveness, the Parliament of the German-Speaking Community is committed to implementing their recommendations, which fosters output legitimacy and shows that this experiment goes beyond the G1000. The Ostbelgien example can in fact be considered the first of its kind both in Belgium and worldwide, given its permanence, operation and its

48 ‘Dokument 101 (2020–2021) nr. 2, Empfehlungen der Bürgerversammlung vom 19. September 2020 zum Thema “Pflege geht uns alle an! Wie können die Pflegebedingungen für Personal und Betroffene verbessert werden?” – Stellungnahme der Ausschüsse zu den Empfehlungen’, 16 December 2020, www. pdg.be/desktopdefault.aspx/tabid-4630/8156_read-61582, 10. The translation from the German text (‘als neue Form parlamentarischer Arbeit als erfrischend und inspirierend empfunden’) is the author’s. 49 ‘Empfelungen der Bürgerversammlung vom 15 Mai 2021 zum Thema “Inklusion macht Schule”’, 9 June 2021, www.pdg.be/desktopdefault.aspx/tabid-4630/8156_read-64848. 50 ‘Empfehlungen der Bürgerversammlung vom 19. Februar 2022 zum Thema “Wohnraum für alle!”’, 1 July 2022, https://pdg.be/addons/SharepointDokumentsuche/desktop/SharepointDokDetails.aspx? DokID=16add26e-f914-4b45-bf48-c1f9bab2117a&FileID=e9fc03e0-7f5c-4743–9646-5fd9b3568b5b.

The Conference on the Future of Europe  157 close (quasi-institutional) link with Parliament.51 Furthermore, the Ostbelgien model has inspired several other cities to implement permanent citizens’ panels. In Paris, the Conseil de Paris voted on 14 October 2021 to implement a permanent citizens’ assembly.52 The city of Poitiers is also currently developing its assemblée citoyenne. During its first meeting, which took place in October 2021, 30 people drawn by lot joined six elected representatives and two local officials to form the founding assembly.53 They convened again in November and December 2021 and in January 2022 to decide on the rules and procedure of the future Assembly. The January session finalised the practical set-up for the future assembly.

C. Assessment The Belgian examples were designed with the same goal as the CoFoE – namely, to allow citizens to voice their concerns and put forward pressing issues. While the G1000 was not designed as a permanent forum, the Ostbelgien model was. Both experiments combined online and in-person methods for selecting topics, which allowed for more inclusive deliberation because even citizens who were not directly involved in the panels could suggest topics for debate. Although its relationship with the legislature was weak and its impact rather limited, the G1000 raised awareness of the possibilities of DMP within a representative democracy. Conversely, regular engagement between the citizens’ panels and the Parliament of the German-Speaking Community, which takes the panels’ recommendations seriously, makes the Ostbelgien model more influential. Some scholars argue that deliberative exercises need to be bottom-up to allow for sufficient citizens’ input.54 However, this does not need to be the case. As is evident from the Belgian examples, a top-down or hybrid method is also possible. The Belgian DMPs put forward different criteria for successful deliberative exercises. These concerned: (a) the selection of participants and the wider inclusion of non-participants; (b) the fostering of deliberation based on impartial expert-provided information which is capable of generating informed debate; and (c) ensuring that the exercise does not remain purely symbolic and that meaningful follow-up is provided – for instance, by having an oversight committee, a communication scheme and ongoing discussions between the participants of the DMP and Parliament. 51 Niessen and Reuchamps (n 43) 19. 52 Conseil de Paris, ‘Comment Fonctionne le Conseil de Paris ?’, 7 October 2021, www.paris.fr/pages/ le-conseil-de-paris-en-10-questions-7430; Conseil de Paris, ‘Séance de 14 octobre 2021’, http://event. paris.fr/Datas4/conseil/535141_616d97661a183. 53 Poitiers.fr, ‘Qu’est-ce que l’Assemblée Citoyenne de la Ville de Poitiers?’, www.poitiers. fr/c__89_1686__Assemblee_citoyenne.html?fbclid=IwAR3X2wvAPHpeHuvuBHp-ECjoKSX8tN Wh8zalWqY7yXkxphqRvU2mkRwkyzE. 54 A Alemanno, ‘Europe’s Democracy Challenge: Citizen Participation in and beyond Elections’ (2020) 21 German Law Journal 35, 37.

158  Maaike Geuens DMPs can therefore be successful where citizens are randomly but representatively selected, where they are allowed to discuss various policy issues which they were able to choose, and where the results of deliberations are taken into account by institutions. With regard to the follow-up and political support, the evidence suggests that progressive political parties are usually in favour of DMPs. The impact of DMPs thus varies depending on the political context.55 Although the Belgian experiments were conducted at the national level, these can be reproduced at the EU level despite linguistic and societal challenges. To wit, while there are only three official languages in Belgium as opposed to 24 in the EU, the EU has vast experience in providing translation services and offering simultaneous interpretation of meetings. Similarly, although the Belgian examples took place in a close-knit society and there is no EU population as such, there is an emerging European society that addresses what von Bogdandy calls ‘societal insubstantiality’.56 DMPs at the national and EU levels can therefore be used to underpin representative democracy at the EU level.57

III.  The Conference on the Future of Europe The subsections below present the CoFoE’s initiation and goals (section III.A), its institutional set-up (section III.B) and its legitimacy (section III.C).

A.  Initiation and Goals In January 2020, the Commission announced its resolve to launch the CoFoE and give Europeans a greater say on what the EU is and what it should become in the future. On 10 March 2021, the European Parliament (EP), the Council and the Commission adopted the Joint Declaration on the CoFoE, outlining the Conference’s goals.58 The latter primarily sought to underpin EU democratic legitimacy by ‘closely involving citizens and communities’ and to ‘open a new space for

55 D Caluwaerts et al, ‘Between Party Democracy and Citizen Democracy: Explaining Attitudes of Flemish Local Chairs towards Democratic Innovations’ (2020) 2(2) Politics of the Low Countries 192, 208. 56 A von Bogdandy, ‘Our European Society and its Conference on the Future of Europe’, Verfassungsblog, 14 May 2021, https://verfassungsblog.de/our-european-society-and-its-conferenceon-the-future-of-europe. 57 A Alemanno, ‘Beyond Consultations: Reimagining EU Participatory Politics’, Carnegie Europe, 5 December 2018, https://carnegieeurope.eu/2018/12/05/beyond-consultations-reimagining-euparticipatory-politics-pub-77873; G de Búrca, ‘An EU Citizens’ Assembly on Refugee Law and Policy’ (2020) 21 German Law Journal 22, 26. 58 Joint Declaration on the Conference on the Future of Europe, ‘Engaging with Citizens for Democracy – Building a More Resilient Europe’, https://ec.europa.eu/info/sites/default/files/en_-_joint_ declaration_on_the_conference_on_the_future_of_europe.pdf.

The Conference on the Future of Europe  159 debate with citizens’.59 The CoFoE was portrayed as a ‘citizens-focused bottomup exercise’,60 which was aimed at facilitating extensive deliberation on numerous EU topics, of which the Joint Declaration provided a non-exhaustive list.61 Other than topics such as the environment and climate change or work and employment, following the COVID-19 crisis, the Conference also focused on public health and a European vision for future threats.62 Relatedly, the CoFoE was meant to begin in May 2020, but was postponed due to the COVID-19 pandemic.63 At that time, the Council, the EP and the Commission still needed to decide on the mandate and shape of the Conference.64 Eventually, the Conference started on 19 April 2021 with the launch of the Multilingual Digital Platform (MDP) as detailed in section III.C below, while the official inauguration took place on Europe Day on 9 May 2021.65 The fact that the structure and organisation of the Conference were designed by EU institutions indicates its top-down nature.66 As shown by the Belgian deliberative experiments analysed above, this does not necessarily prevent the CoFoE from being successful. However, it does require other conditions to be met, notably diverse inclusion of citizens and other actors,67 the possibility to discuss and formulate recommendations, and adequate follow-up. The European Council also stressed the importance of the Member States in the CoFoE, because they form an integral part of the relationship between the EU and its citizens.68

59 ibid 1. 60 ibid 2. 61 ibid 4; Fabbrini (n 14) 6. 62 Von der Leyen (n 1); C Grossner, ‘Future of Europe Conference: Part of Germany’s EU Presidency Agenda?’, EurActiv, 25 May 2020, https://www.euractiv.com/section/politics/news/future-of-europeconference-part-of-germanys-eu-presidency-agenda; N Stefanuta, ‘After the Pandemic: How to Use Conference on Future of Europe to Rethink Society’, EurActiv, 13 April 2020, https://www.euractiv. com/section/future-eu/opinion/after-the-pandemic-how-to-use-conference-on-future-of-europe-torethink-society. 63 M Alander et al, ‘Conference on the Future of Europe: What Do the Institutions Want?’ in M Alander et al (eds), Managed Expectations: EU Member States’ Views on the Conference on the Future of Europe (Brussels, European Policy Institutes Network, 2021) 8; EPRS, Conference on the Future of Europe, June 2020, 1–3; O Le Saëc, ‘The Potential Outcome of the Conference on the Future of Europe in a COVID-19 World: Strengthening European Democracy’ (2020) Wilfried Martens Centre for European Studies 1. 64 Schimmelfennig (n 4) 990 and 998; European Commission, ‘Donner Forme à la Conference sur l’Avenir de l’Europe’, https://ec.europa.eu/france/news/20200122/Conference_avenir_europe_fr. 65 Le Saëc (n 63) 7–8. 66 F Fabbrini, ‘The Conference on the Future of Europe: Process and Prospects’ (2021) 26(5–6) European Law Journal 401. 67 See the argument in favour of involving the judiciary, owing to judges’ significant impact on European integration, in M Steuer, ‘Neglected Actors at the Conference on the Future of Europe’ (2021) Verfassungsblog, 30 June 2021, https://verfassungsblog.de/neglected-actors-at-theconference-on-the-future-of-europe. 68 Joint Declaration (n 58) 1; European Council, ‘Conclusions 12 December 2019’, EUCO 29/19, points 14–16.

160  Maaike Geuens

B.  Institutional Set-up Generally, the involvement of experts in all phases of the deliberative process is necessary to provide participants with sufficient and objective information and enable an informed discussion.69 The choice of approach – specifically concerning funding, the selection of participants, the themes and follow-up – also needs to be justified at the beginning of the exercise.70 In the case of the CoFoE, the fact that the experiment was EU-funded has the drawback that EU institutions had an opportunity to significantly impact the manner in which the deliberation was to take place. The setting of the agenda, the organisation of panels, the selection of panel participants and the results themselves could be jeopardised.71 Guarantees regarding each of these aspects therefore need to be provided in order for the exercise to be successful. Evidence also shows the need for a wide variety of citizens and other actors to be included in such a deliberative Conference.72 With the CoFoE, the equality and inclusion of the EU population was assured,73 since political and other actors were indeed involved.74 Yet, the set-up of the CoFoE long remained unclear.75 This was largely due to the different ambitions and positions of the relevant EU institutions. The EP was in favour of the CoFoE and was looking forward to engaging with citizens, involving national and regional parliaments, and examining the possibility of Treaty changes. The Council was somewhat hesitant and wished to avoid far-reaching reform proposals. The Commission only became a strong advocate of the Conference in the run-up to its launch, but was apprehensive before that.76 Regarding leadership of the CoFoE, von der Leyen was favourable to a member of the EP chairing the CoFoE,77 while the Council suggested ‘an eminent European personality’ as the Conference’s chair.78 The final set-up, presented below, was decided by the aforementioned Joint Declaration and reflected EU institutions’ different opinions.79 The Conference was led by the Joint Presidency, comprising the Presidents of the EP, the Commission and the Council. The Joint Presidency was supported by the Executive Board, which was co-chaired by the three institutions: the EP’s Co-Chair Guy Verhofstadt; Gašper Dovžan, the Secretary of State for EU Affairs acting 69 Caluwaerts and Reuchamps (n 21) 151–70; Suteu (n 4) 269–71. 70 Suteu (n 4) 272; P Butcher and C Stratulat, ‘Citizens Expect: Lessons from the European Citizens’ Consultations’ (2019) European Politics and Institutions Programme Discussion Paper, 1, 3 and 6–11; Reuchamps (n 3) 65. 71 Jacquet and Reuchamps (n 3) 44. 72 Suteu (n 4) 273. 73 Jacquet and Reuchamps (n 3) 44. 74 Bursens and Meier (n 16) 13–14; Suteu (n 4) 272. 75 Fabbrini (n 66) 405; Le Saëc (n 63) 3–7; European Commission (n 64). 76 Alander et al (n 63) 8–9; Le Saëc (n 63) 3–7. 77 Von der Leyen (n 1) 19. 78 Council of the EU, ‘Conference on the Future of Europe – Council Agrees its Position’, press release, 24 June 2020, https://www.consilium.europa.eu/en/press/press-releases/2020/06/24/conference-onthe-future-of-europe-council-agrees-its-position. 79 See also European Commission (n 17) 2.

The Conference on the Future of Europe  161 on behalf of the Slovenian Presidency of the Council of the EU; and Dubravka Šuica, Commission Vice-President for Democracy and Demography. The Joint Presidency and the Executive Board were assisted by the Common Secretariat. A wide range of topics were debated during the CoFoE panel sessions and plenaries. The European Citizens’ Panels focused on specific issues as follows.80 Panel 1 debated stronger economy, social justice and jobs, education, culture, youth and sport, as well as digital transformation. Panel 2 covered European democracy, values and rights, the rule of law and security. Panel 3 focused on climate change, the environment and health. The topics put forward by the MDP were included in the work of the panels, which could then define priorities and suggest additional themes and issues.81 The panels took place four times between September 2021 and March 2022, with the final panel concluding and evaluating the Conference’s work in May 2022. Each panel consisted of 200 randomly selected citizens, with a minimum of one male and one female member from each Member State, and with one-third of the panel having to be 16–25 years old. To guarantee that all walks of life are represented, EU institutions aimed to include EU citizens of various geographical origins, gender, age, socioeconomic background and education levels.82 A special effort was made to include young people.83 The panels’ work fed into the Conference Plenary, which was held approximately every four months. The Plenary was composed of 449 members. Of EU institutions, there were 108 representatives from the EP, 54 from the Council (two per Member State) and three from the Commission. In addition, 108 representatives from all national parliaments participated on an equal footing. A further 108 citizens were involved to discuss citizens’ ideas stemming from the European Citizens’ Panels and the MDP. These 108 citizens included 80 representatives from the European Citizens’ Panels (of which at least one-third were to be younger than 25), 27 representatives from national citizens’ panels or Conference events (one member per Member State), and the President of the European Youth Forum. Also participating were representatives from the European Economic and Social Committee, the Committee of the Regions, local and regional authorities, social partners and the civil society. The Plenaries discussed the panels’ recommendations, taking into account the input from the MDP.84 The first Plenary took place in June 2021 and the second one in October 2021. In the spring of 2022, the Plenary cooperated with the Executive Board to draw up a report for publication on the MDP.

80 See https://futureu.europa.eu/pages/panels. 81 Summary report of the 6th meeting of the CoFoE Executive Board, 19 July 2021, 3 https://assets.futureu.europa.eu/uploads/decidim/attachment/file/26340/Summary_report_6thExecutive_Board_19July2021.pdf. 82 ibid. 83 Joint Declaration (n 58) 2; EP, Resolution of 15 January 2020 on the European Parliament’s Position on the Conference on the Future of Europe, 2019/2990(RSP) (hereinafter ‘EP CoFoE Resolution’). 84 See https://futureu.europa.eu/pages/plenary?locale=en.

162  Maaike Geuens Finally, when it comes to the Member States, most were supportive of the CoFoE.85 Their governments put forward a broad range of topics, such as the strengthening of the Single Market, revision of the EU institutional structure, climate change, the pandemic, the rule of law, the involvement of young people, and the EU as a strong global actor. However, many Member States – such as Austria, Czechia, Denmark, Estonia, Finland, Germany, Ireland, Latvia, Lithuania, Malta, the Netherlands, Slovakia and Sweden – were hesitant about any Treaty changes. Others, such as Bulgaria, did not want the EU to move forward and legislate in certain areas, such as asylum, taxation or enlargement.86 Furthermore, the role of the Member States was important because some of them – like Belgium, France and the Netherlands – hosted CoFoE events and panels.87 The recommendations from these national exercises were conveyed to the Joint Presidency by the respective national governments. The Member States also had an important role to play regarding follow-up, because recommendations made by the CoFoE can only be implemented with the agreement of the Member States.88

C. Legitimacy To analyse the legitimacy dimension of the CoFoE, we need to distinguish between input, throughput and output legitimacy.89 These are analysed in turn below. Input legitimacy is generally secured through the fulfilment of three elements: inclusiveness, access to information and openness of the agenda. Inclusiveness entails that the most diverse group of participants is ensured, which is best achieved through random selection. Participants need to be fully informed and the information given to them must be balanced and objective. The participants also need to be able to set the agenda and decide which topics will be discussed, otherwise deliberation results could be jeopardised. The Commission initially suggested a two-tier approach to the debates. The first tier would be founded on the Commission’s priorities, such as climate change, environmental challenges, a service economy, social equality, digital transformation of the EU, the promotion of EU values, the reinforcement of the EU as an international actor and the consolidation of EU democratic principles.90 The second tier would concern the more 85 Edthofer et al (n 7) 10–31. 86 ‘Conference on the Future of Europe: Common Approach amongst Austria, Czech Republic, Denmark, Estonia, Finland, Ireland, Latvia, Lithuania, Malta, the Netherlands, Slovakia and Sweden’, 24 March 2021, www.permanentrepresentations.nl/documents/publications/2021/03/24/ non-paper-on-the-conference-on-the-future-of-europe. 87 M Alander et al, ‘Introduction’ in M Alander et al (eds), Managed Expectations: EU Member States’ Views on the Conference on the Future of Europe (Brussels, European Policy Institutes Network, 2021) 4–5. 88 ibid 1–2. 89 VA Schmidt, ‘Democracy and Legitimacy in the European Union Revisited: Input, Output and Throughput’ (2013) 61(1) Political Studies 2. 90 European Commission (n 17) 2.

The Conference on the Future of Europe  163 institutional and democratic processes, such as transnational electoral lists and the Spitzenkandidaten procedure. The CoFoE guidelines on the selection of citizens clearly indicated an open and randomised selection strategy. The Conference adopted a dual approach, such that the topics discussed were proposed both by the Commission and by the citizens. In light of the pandemic and its restrictions, but also to guarantee sufficient participation, the Conference further adopted a hybrid method, whereby citizens could participate both virtually and in person, and at both the EU and national levels. The aforementioned interactive MDP facilitated virtual participation of a diverse audience, enabled large-scale debate and provided an overview of all the CoFoE activities.91 From the platform’s launch on 19 April 2021 to its closure on 9 May 2022, a total of 48,530 contributions were recorded, with 18,955 ideas, 22,570 comments and 7,005 events coming from virtually all Member States.92 Looking at the overall citizen participation in the panels, plenaries and the MDP, the results are mixed. While EU institutions have been positive about the number of citizens participating in the MDP and live events, the Executive Board acknowledged in September 2021 that more could be done to ensure a more active participation.93 One could indeed argue that the level of citizen participation was insufficient, considering the total size of the EU population.94 However, the lack of participation was to some extent compensated for by the many topics discussed within the panels and plenaries. Interaction with citizens was further assured by different events – such as debates, discussions, conferences, surveys and postcard actions – at the local, regional, national and EU levels.95 Therefore, as long as the issues deliberated on reflected the interests of the overall EU population, thereby contributing to a greater sense of citizens’ co-ownership of the CoFoE agenda, the input legitimacy requirement should be considered to have been fulfilled. If EU institutions had selected all of the Conference topics, the entire exercise would have been put in jeopardy.96 The CoFoE’s goal was to engage with a diverse group of citizens, with a particular emphasis on young people. However, the final report on citizens’ participation in the MDP shows that this does not seem to have been achieved.97 The age group

91 ibid 6; Von Bogdandy (n 56). 92 Kantar Public, ‘Multilingual Digital Platform of the Conference on the Future of Europe: Final Report’, May 2022, 6. 93 Summary Report of the 7th meeting of the CoFoE Executive Board, 11 October 2021, 3, https://futureu.europa.eu/rails/active_storage/blobs/eyJfcmFpbHMiOnsibWVzc2FnZSI6IkJBaHBBaj VKIiwiZXhwIjpudWxsLCJwdXIiOiJibG9iX2lkIn19--fe9100a78700dc7ac1db61ea055ae236a3867b23/ en21.pdf. 94 A Alemanno, ‘Unboxing the Conference on the Future of Europe and its Democratic Raison d’Être’ (2020) 26(5–6) European Law Journal 484, 495 ff. 95 Joint Declaration (n 58) 1. 96 Alander et al (n 63) 9. 97 Kantar Public (n 92) 17–20.

164  Maaike Geuens of 55–69 year olds has been the most active one (18%), followed by 25–39 year olds (16%), 40–54 year olds (15%), 15–24 year olds (9%) and 70+ year olds (6%), with 36% not disclosing their age. Furthermore, the majority of the participants identified as male (47%), a minority as female (16%), and a very small minority as non-binary (1.2%), while 36% did not disclose their gender. In terms of the participants’ occupation, professional workers (15%), retirees (11%) and managers (10%) contributed the most, and manual workers (5%) and the unemployed (3%) the least. People with higher education were also particularly active (42%). Although Germany, France and Italy were the top three Member States contributing to the platform, the smaller Member States of Luxembourg, Hungary and Malta have contributed the most when looked at proportionately per 1 million inhabitants. Most of the contributions addressed the topic of ‘European Democracy’ (1,060 events, 2,539 ideas and 4,606 comments, totalling 8,205 contributions), followed by ‘Climate change and the environment’ and ‘Values and rights, rule of law, security’. Throughput legitimacy is guaranteed when the deliberative experiment fulfils four requirements: (a) transparency; (b) quality of participation; (c) quality of the decision-making process; and (d) the possibility for participants to deliberate free from outside pressure.98 These seem to have been sufficiently met by the CoFoE set-up. Concerning transparency, the modalities of the panels and plenaries were published online and made available to participants in both online and in-person events. In addition, all plenary and panel discussions were livestreamed, the names and biographies of the experts engaged were published, and the facilitators were experienced professionals.99 Concerning the quality of participation, deliberation should take place based on impartial expert-provided information which is capable of generating informed debate. Within the CoFoE, experts were included in all phases of the deliberation and citizens were informed on the topics before they started the discussion. Regarding the quality of the decision-making process, a crucial aspect of each DMP is to ensure oversight and meaningful follow-up through the facilitation of discussions between the participants and the legislature. The CoFoE design lacked this. Although the Executive Board, the feedback panel and the Presidency, as well as the EP and the Commission, emphasised their willingness to take Conference recommendations on board, there is no real supervision or oversight in place. Instead, the success of the CoFoE hinges on the goodwill of the EU institutions and Member States. This procedural limitation may consequently limit the CoFoE’s output legitimacy. Finally, there was no indication in the CoFoE set-up that participants were put under any form of pressure before, during or after their involvement. Output legitimacy, focusing on the outcomes of deliberative experiments, is equally significant. In this regard, the EP and the Council called on CoFoE participants to produce concrete recommendations.100 The Commission expressed

98 Schmidt

(n 89) 2–22. Report of the 7th meeting (n 93) 2. 100 Council of the EU, n 78 above; EP CoFoE Resolution, points 29–31. 99 Summary

The Conference on the Future of Europe  165 readiness to take action within the scope of its competences and to assist other EU institutions when the latter are competent.101 The final report on the Conference, including 49 recommendations and 329 concrete measures stemming from the citizens’ panels and plenary, was published in May 2022.102 The recommendations propose institutional changes and additional EU legislation, while one or more Treaty changes may be necessary too. Although the Commission was initially wary of any Treaty change, it no longer is.103 This contrasts with the Joint Declaration, which confined the CoFoE to the current Treaties. Any recommendation to amend the Treaties may theoretically pose difficulties regarding Article 48 TEU, because the latter specifies the method of Treaty reform.104 Yet the importance of the Conference would increase if citizens’ recommendations were to lead to Treaty amendments. If Treaty reform was not an option, this would hinder the deliberative exercise altogether,105 because citizens would have been limited in what they could or could not propose. However, a middle ground is certainly possible: where the Conference contributions recommend Treaty reform, EU institutions could take it upon themselves to initiate a Treaty change. This view has been endorsed by the EP, the Council and the European Commission. They have committed to following up on the citizens’ recommendations, even where the latter call for Treaty amendments.106 An alternative to Treaty change would be to pursue agreements between Member States. From a legal perspective, this is not the most favourable avenue because such agreements would have to ensure not to contradict EU primary and secondary law, and, where they concern the Union’s exclusive competence, the matter would have to be left to EU institutions.107 The above overview shows that although the Commission, the EP and the Council played an important role in organising and setting the agenda of the CoFoE, citizens were engaged in EU-level discussions. This is why, in September 2021,

101 European Commission (n 17) 2–3. 102 Conference on the Future of Europe: Report on the Final Outcome, May 2022, https://futureu.europa. eu/rails/active_storage/blobs/redirect/eyJfcmFpbHMiOnsibWVzc2FnZSI6IkJBaHBBN1UzQVE9PSIsImV4cCI6bnVsbCwicHVyIjoiYmxvYl9pZCJ9fQ==--a8e0633a7b60d869ec3b2142f1ac7fd16743e b4b/Book_CoFE_Final_Report_EN_full.pdf 103 Von der Leyen (n 1) 19. See also Alander et al (n 87) 1–4; Alander et al (n 63) 8; M de la Baume, ‘Conference on Europe’s Future Edges Closer – But with Clear Limits’, Politico, 23 June 2020, https:// www.politico.com/news/2020/06/23/europe-future-continent-337175. 104 ibid 16. 105 F Fabbrini, ‘Reforming the EU outside the EU? The Conference on the Future of Europe and its Options’ (2020) 5(2) European Papers 963, 977–78. 106 EP, Resolution of 9 June 2022 on the call for a Convention for the revision of the Treaties, Doc No P9_TA(2022)0244 (hereinafter ‘EP Convention Resolution’); Council of the European Union, Conference on the Future of Europe – Proposals and related specific measures contained in the report on the final outcome of the Conference on the Future of Europe: Preliminary technical assessment, 10 June 2022, Doc No ST 10033/22 (hereinafter ‘Council CoFoE Assessment’); European Commission, Communication ‘Conference on the Future of Europe – Putting Vision into Concrete Action’, COM (2022) 404, 17 June 2022 (hereinafter ‘Commission CoFoE Assessment’). 107 ibid 974–77.

166  Maaike Geuens the panels and the Conference in general were positively evaluated by the CoFoE Executive Board.108 The future inclusion of citizens in the EU policy cycle was also included in the final recommendations of the CoFoE. However, while citizens from all Member States have found their way on to the MDP and have offered suggestions for EU policy, this was mostly done by highly educated male participants aged 55–69, which detracts from the Conference’s stated goals of engaging with a diverse and young audience. Yet the bulk of the CoFoE did not take place through the MDP, but through the panels and plenaries. While MDP contributions formed an important part of the Conference, panel members could suggest additional topics for deliberation. The selection of participants in these panels ensured diversity by taking into account the geographical origin (nationality and urban/ rural dimension), gender, age, socioeconomic background and level of education. Importantly, one-third of each panel was composed of young people, precisely the category that was under-represented in the MDP. Many of the legitimacy conditions identified above have thus been addressed by the CoFoE set-up. The Commission has underlined the importance of including a diverse group of citizens, acknowledged EU institutions’ responsibility to share expertise and information, and put in place different mechanisms of transparency.109 EU institutions have taken most of the insights from previous national deliberative exercises to heart. The requirements of inclusion, transparency, feedback and clarity concerning the goals and outcome of the Conference were therefore met. However, the most important element, which is whether the Conference’s recommendations will be implemented, remains uncertain. At the time of the writing of this chapter, the discussion on how to implement these recommendations is ongoing at the national and EU levels. The Joint Presidency was required to follow up on the recommendations made by the Conference Plenaries and European Citizens’ Panels, and the Commission, the EP and Council have already responded to the final report. The Commission performed an initial assessment, underlining four categories of response to the citizens’ CoFoE recommendations: (a) those where EU legislation that directly responds to citizens’ recommendations has already been enacted (eg, the European Climate Law or the Digital Services Act); (b) those where a legislative proposal has been transferred to the co-legislators and legislative work is ongoing (eg, the New Pact on Migration and Asylum or the Artificial Intelligence Act); (c) those where the Commission is already planning to make proposals but has not yet done so (eg, the Media Freedom Act); and (d) those where citizens’ recommendations are partly or wholly new, requiring new proposals to be made by the Commission (eg, mental health awareness, nutrition and food security).110



108 Summary

Report of the 7th meeting (n 93) 1–2. 4–6. 110 Commission CoFoE Assessment, 3. 109 ibid

The Conference on the Future of Europe  167 The EP urged its Committee on Constitutional Affairs to prepare proposals for Treaty amendments that would be necessary in order to implement the relevant CoFoE recommendations. These include, inter alia, the relaxation of the voting requirements away from unanimity towards qualified majority voting, ensuring a better protection of the founding EU values and a strengthening of the EU’s and the EP’s competences.111 The Council of the European Union performed a full preliminary technical assessment of all the recommendations, including an analysis of the legal basis for future legislation.112 Like the Commission, the Council classified CoFoE recommendations into three categories: those that are addressed by the existing and ongoing EU initiatives; those that could be addressed within the current Treaty framework; and those that would require a Treaty change in order to be fully implemented.

IV.  Concluding Remarks The CoFoE highlights the importance of including citizens in EU democratic governance. In this sense, it could be argued that the Belgian experiences with deliberative democracy have paved the way for the CoFoE insofar as many principles, the institutional set-up and organisational methods have already been tried and tested. The combination of online and in-person contributions, the organisational structure involving panels and plenaries, and the procedures on feedback and follow-up have provided strong inspiration for EU institutions in designing the CoFoE. National best practices are therefore a valuable source of deliberative know-how. Despite some scholarly arguments that DMPs need to be bottom-up, the Belgian examples indicate that top-down and hybrid methods can be equally successful. However, the necessary guarantees with regard to citizen participation ought to be in place. The CoFoE institutional set-up ensured this, as citizens were included in three ways: they contributed through the MDP, joined citizens’ panels and plenary sessions, and participated in the many national and EU events. The selection of participants was in line with the Belgian experiments analysed in this chapter to the extent that diverse representation of the EU population was ensured on the CoFoE panels and plenaries. Citizens who could not participate in the panels and plenaries could engage through the MDP and make contributions, which were then fed into the work of the panels. This ensured better input legitimacy and wide coverage of societal interests. However, imbalances in the make-up of the contributors to the MDP remained due to the under-representation of women and youth. Concerning the topics covered by the CoFoE, it is welcome that citizens

111 EP

Convention Resolution, points 3–6; Annex to EC Final Assessment. CoFoE Assessment, 3–4 and 7.

112 Council

168  Maaike Geuens were not limited to the issues identified at the EU level, but could freely propose those of their own. Another important aspect of the CoFoE was that its governance reflected a compromise between the Member States and EU institutions. There was no strong leadership; instead, the responsibility was shared between the Commission, the EP and the Council. By contrast, in successful national DMPs, leadership is either attributed to a single person or to a collegial body. Yet, the lack of strong leadership in the CoFoE might interfere with its follow-up. Indeed, while EU institutions and the majority of national governments have committed to taking action on the Conference recommendations, there are no corresponding mechanisms of supervision. There are two further differences between the Belgian deliberative democracy examples and the CoFoE. First, the most successful national experiments have a permanent basis. This is certainly the case with the Ostbelgien model and some citizens’ assemblies, like those in France. This not only allows for ongoing dialogue, continuous follow-up and a more solid inclusion of citizens, but also increases the potential impact of these DMPs. As this is currently lacking at the EU level, this chapter holds that a form of permanent EU DMP should be established.113 This corresponds with some of the recommendations in the Final Report of the CoFoE. Second, the Ostbelgien model offers solid evidence that adequate followup, through continuous engagement with citizens’ panels, is key to the success of a DMP. While the Commission has announced the post-CoFoE launch of citizens’ panels, it remains to be seen whether and how EU and national institutions will follow up on this and on other Conference recommendations. Should the practice of DMPs become embedded in the EU’s future institutional framework, EU institutions and Member States would come under additional pressure to ensure greater responsiveness to citizens’ concerns. Therefore, while the CoFoE meets many of the organisational and legitimacy benchmarks of best practice, improvements regarding the input and output sides of the exercise would have made it even more effective. Even so, the CoFoE can be considered a first step in enhancing citizens’ inclusion in EU governance and increasing the Union’s democratic legitimacy.114



113 See

more on this in ch 9 by James Organ in this volume. (n 94) 508.

114 Alemanno

9 EU Participatory Democracy Citizens’ Assemblies and the Conference on the Future of Europe JAMES ORGAN

I. Introduction Since establishing the commitment to participatory democracy 15 years ago in Article 11 of the Treaty on European Union (TEU), the European Union (EU) has made slow progress.1 Small, positive steps to increase citizen participation have been taken through, for example, the European Citizens’ Initiative (ECI),2 public consultations3 and citizen dialogues,4 but they have faced criticisms for having a limited impact on the EU policy agenda and its outputs,5 and that they fare poorly in terms of inclusion, equality6 and openness.7 Beyond the formal EU developments in participatory democratic instruments, there has also been experimentation with deliberative democracy, such as the European Citizens Consultations, the G1000,8 Europolis and the Citizens’ Assembly for the Renewal 1 G de Búrca, ‘An EU Citizens’ Assembly on Refugee Law and Policy’ (2020) 21 German Law Journal 23, 27. 2 B Kaufmann, ‘Transnational Babystep: The European Citizens Initiative’ in M Setälä and T Schiller (eds), Citizens’ Initiatives in Europe: Procedures and Consequences of Agenda-Setting by Citizens (Basingstoke, Palgrave Macmillan, 2012). 3 R Kies and P Nanz (eds), Is Europe Listening to Us? Successes and Failures of EU Citizen Consultations (Farnham, Ashgate, 2013). 4 See https://ec.europa.eu/info/events/citizens-dialogues_en#past-events. 5 A Karatzia, ‘The European Citizens’ Initiative and the EU Institutional Balance: On Realism and the Possibilities of Affecting EU Lawmaking’ (2017) 54 Common Market Law Review 177; N Vogiatzis, ‘Between Discretion and Control: Reflections on the Institutional Position of the Commission within the European Citizens’ Initiative Process’ (2017) 23 European Law Journal 250. 6 A Alemanno, ‘Levelling the EU Participatory Playing Field: A Legal and Policy Analysis of the Commission’s Public Consultations in Light of the Principle of Political Equality’ (2020) 26(1–2) European Law Journal 114. 7 J Organ, ‘EU Citizen Participation, Openness and the European Citizens Initiative: The TTIP Legacy’ (2017) 54(6) CML Rev 1713. 8 See more on the G1000 in ch 8 by Maaike Geuens in this volume.

170  James Organ of Europe (CARE) project,9 led by the author of this chapter.10 Despite this, the vast majority of EU citizens (92%) still think that ‘the voice of EU citizens should be more taken into account’.11 The Conference on the Future of Europe (CoFoE), particularly its inclusion of citizens’ panels, is the latest experiment in participatory democracy. European Commission President Ursula von der Leyen confirmed the need for stronger citizen participation at the launch of the CoFoE because ‘citizens … are demanding greater involvement in the way policies are shaped, beyond voting in elections every 5 years’,12 and the CoFoE Joint Declaration stated its intention to ‘give citizens a greater role in shaping the Union’s future policies and ambitions’.13 With the CoFoE under way at the time of writing, it is a timely moment to explore the value and challenges of institutionalising a form of mini-public,14 of which the CoFoE Citizens’ Panels and an EU Citizens’ Assembly are examples,15 as a possible next step for EU democracy.16 This chapter does so through the lens of participatory democracy focusing on the effectiveness of participation rather than on the legitimising value of deliberation. To this end, the chapter analyses the contribution to increasing citizen involvement in EU policy derived from the CoFoE citizens’ panels, which are the Conference’s most innovative participatory feature,17 and their potential as a forerunner for an EU Citizens’ Assembly. This is complemented by an assessment of the findings from the CARE project. Both projects used a series of small-scale deliberative events – mini-publics – as part of a larger-scale citizen participation event. In CARE, four mini-publics combined to form a decentralised EU Citizens’ Assembly. The CoFoE included four citizens’ panels of 200 randomly selected EU citizens, also stratified to increase representative diversity, that deliberated and then

9 See the CARE project report at www.citizensassemblies.eu/en/resource. 10 See also EP, Study ‘The Practice of Democracy: A Selection of Civic Engagement Initiatives’ (authored by G Sgueo), Doc PE 651.970, June 2020. 11 Special Eurobarometer 500, ‘Future of Europe: A Joint Survey of the European Commission and the European Parliament’, October–November 2020, 9. 12 See https://ec.europa.eu/info/sites/default/files/communication-conference-future-of-europejanuary-2020_en.pdf. 13 Adopted on 10 March 2021. See https://futureu.europa.eu/uploads/decidim/attachment/file/6/ EN_-_JOINT_DECLARATION_ON_THE_CONFERENCE_ON_THE_FUTURE_OF_EUROPE. pdf. 14 On the design and definition of mini-publics, see S Rosenberg (ed), Deliberation, Participation and Democracy: Can the People Govern? (Basingstoke, Palgrave Macmillan, 2007); and K Grönlund et al (eds), Deliberative Mini-publics: Involving Citizens in the Democratic Process (Colchester, ECPR Press, 2014). 15 See recent proposals of an EU Citizens’ Assembly in G Smith, ‘The European Citizens Assembly’ in A Alemanno and J Organ (eds), Citizen Participation in a Democratic Europe: What Next for the EU? (Lanham, MD, Rowman & Littlefield/Colchester, ECPR Press, 2021); de Búrca (n 1); M Warren, ‘Institutionalising Deliberative Democracy’ in Rosenberg (n 14). See also Citizens Take Over Europe, ‘Manifesto for an EU Citizens’ Assembly’, https://europeancitizensassembly.eu. 16 See further possible developments in EU participatory democracy in Alemanno and Organ (n 15). 17 A Alemanno, ‘Unboxing the Conference on the Future of Europe and its Democratic Raison d’Être’ (2020) 26(5–6) European Law Journal 484.

EU Participatory Democracy  171 made recommendations to the CoFoE plenary on the following broad themes: (a) ‘Stronger economy, social justice, jobs, education, culture, sport, digital transformation’ (Panel 1); (b) ‘EU democracy, values, rights, rule of law, security’ (Panel 2); (c) ‘Climate change, environment, health’ (Panel 3); and (d) ‘EU in the world, migration’ (Panel 4). The CARE project and the CoFoE citizens’ panels show that mini-publics are feasible options to develop a more participatory EU democracy and that they could be a stepping stone to the implementation of an EU Citizens’ Assembly. There are, however, complex design issues that the EU would face if a democratic instrument of this type were to be institutionalised. The two focused on in this chapter are: the design of an EU Citizens’ Assembly that is appropriately inclusive for the EU; and a design that provides an appropriate impact on EU law and policy so as to increase the effectiveness of EU citizen participation. The chapter proceeds as follows. First, a citizens’ assembly is defined and the theoretical framing of effective participation is set out (section II). Second, findings from the CARE project are analysed in relation to its selection of participants, its scope and recommendations, and its potential for impact (section III). In light of the CARE findings, the chapter then assesses the CoFoE citizen panels from the perspective of the aforementioned design considerations (section IV). The chapter concludes that an EU Citizens’ Assembly is a feasible next step as the EU strives for stronger participatory democracy, but one that faces complex design choices and needs to be clear about the democratic problem(s) it is trying to address (section V).18

II.  Strong Participatory Democracy A.  What is a Citizens’ Assembly? Citizens’ assemblies have grown in prominence since the turn of the century as a potential means of strengthening the deliberative and participatory quality, and therefore the democratic legitimacy, of political systems.19 Graham Smith defined citizens’ assemblies ‘as a form of deliberative mini-public: randomly selected bodies that aim to increase and deepen citizen participation in the political decision-making process through facilitated and informed deliberation’.20 A citizens’ assembly typically brings together about 100–150 people, although 500 or

18 G de Búrca, ‘Developing Democracy beyond the State’ (2008) 46(2) Columbia Journal of Transnational Law 221; B Barber, Strong Democracy: Participatory Politics for a New Age (Berkeley, University of California Press, 1984). 19 Grönlund et al (n 14); N Curato et al (eds), Deliberative Mini-publics: Core Design Features (Bristol, Bristol University Press, 2021). 20 G Smith, Democratic Innovations: Designing Institutions for Citizen Participation (Cambridge, Cambridge University Press, 2009).

172  James Organ more are likely needed for an EU Citizens’ Assembly. Participants come together for several days to learn, consult, deliberate and make recommendations about a specific issue that reflect the preferences of the relevant population – in this case over 500 million EU citizens. One of the defining and legitimising characteristics of mini-publics is the randomness of the participant selection process and the diversity of participants achieved through the subsequent stratification of applicants. As Setälä and Smith stated: ‘It is the diversity that (near) random selection offers and the engagement of participants who do not have a strategic interest in the issues under consideration that distinguishes mini-publics.’21 Anyone can apply, notwithstanding self-selection and social or other barriers, and the stratification of applicants then provides the representativeness needed to legitimise the recommendations from these events. A second key defining feature analysed in this chapter is the degree of obligation that an event of this kind imposes on political institutions. The CARE Citizens’ Assembly was designed along the lines of what Fung called a ‘participatory advisory panel’,22 which aims ‘to improve the quality of opinion, but also to align public policies with considered preferences … develop linkages to economic or state decision-makers to transmit preferences after they have been appropriately articulated’.23 This type of democratic instrument does not impose a formal obligation on institutions to implement the citizen preferences expressed. Instead, there is a form of partnership through which there is an informal expectation that the advisory panels will have an impact on policy, but leaves this impact at the discretion of the political institutions. These two questions of who participates and what impact a mini-public has are two of Fung’s ‘institutional design choices’.24 These choices are used to help focus this chapter on the extent that an EU Citizens’ Assembly might contribute to effective EU citizen participation.

B.  What is Effective Participation? To examine the feasibility of an EU Citizens’ Assembly and the challenges it might face, this chapter uses a framework based on participatory rather than deliberative democratic theory.25 Citizen participation has long been a central principle of democratic theory.26 Participatory democracy has developed as an important

21 M Setälä and G Smith, ‘Mini-publics and Deliberative Democracy’ in Grönlund et al (n 14) 310. 22 A Fung, ‘Mini-publics: Deliberative Designs and Their Consequences’ in Rosenberg (n 14). 23 ibid 164. 24 ibid. Other design choices focus on different democratic goods, such as deliberation. 25 C Pateman, Participation and Democratic Theory (Cambridge, Cambridge University Press, 1970); Barber (n 18). 26 R Dahl, Democracy and its Critics (New Haven, Yale University Press, 1989).

EU Participatory Democracy  173 democratic model since the 1970s onwards,27 albeit somewhat overshadowed in recent years by the focus on deliberative democracy, which developed from it.28 The explosion in deliberative democracy in the first decades of the twentieth century has seen it move from theory to practical experience, to a third generation that is interested in its institutionalisation.29 Critical analysis of the feasibility and participatory value of an institutionalised EU-level Citizens’ Assembly is part of this third generation. The criteria for effective participation used here are:30 a democratic instrument must give citizens influence over the policy and law-making agenda and over the legal and policy outcomes from that agenda,31 and this influence must include the possibility of challenging existing policy preferences.32 Citizen participation – through activities such as voting, signing petitions, protesting in the streets, responding to consultations, and mini-publics – aims to influence policy and law-making. Strong, effective citizen participation requires a genuine opportunity for all citizens’ preferences to influence law and policy. ‘“[R]eal” participation (participation that is “truly effective”) is tied to the decision-making nature of the participatory process.’33 At worst, instruments of citizen participation are little more than a democratic veneer for existing policy preferences that increase the sense of participation without reducing institutional power over decisionmaking.34 An inclusive opportunity for citizens to engage, but through a heavily mediated and tokenistic process, is a weak form of participation. EU participatory opportunities have been criticised for having little impact on EU policy or law, and for a lack of transparency and openness.35 This means that despite the numerous efforts to engage with citizens, the EU still lacks responsiveness to citizens’ preferences,36 which is at the core of democracy.

27 See a summary of the key features of participatory democracy in D Held, Models of Democracy (Cambridge, Polity Press, 2006) 209–16. 28 On the relationship between deliberative and participatory democracy, see A Floridia, From Participation to Deliberation: A Critical Genealogy of Deliberative Democracy (Colchester, ECPR Press, 2017); S Elstub, ‘Deliberative and Participatory Democracy’ in A Bächtiger et al (eds), Oxford Handbook of Deliberative Democracy (Oxford, Oxford University Press, 2018). 29 S Elstub et al, ‘Editorial Introduction: The Fourth Generation of Deliberative Democracy’ (2016) 10(2) Critical Policy Studies 139. 30 Organ (n 7). 31 A Weale, Democracy (New York, Palgrave Macmillan, 1999). 32 R Blaug, ‘Engineering Democracy’ (2002) 50(1) Political Studies 102. 33 Floridia (n 28). On the challenges of inserting mini-publics in political decision-making, see C Lafont, ‘Can Democracy be Deliberative and Participatory? The Democratic Case for Political Uses of Mini-publics’ (2017) 146(3) Dædalus: The Journal of the American Academy of Arts & Sciences 85. 34 J Organ, ‘Decommissioning Direct Democracy? A Critical Analysis of Commission Decision Making on the Legal Admissibility of European Citizens Initiative Proposals’ (2014) 10(3) European Constitutional Law Review 422. 35 Organ (n 7). This is one of the reasons why Kohler-Koch and Quittkat describe these opportunities as a form of participative governance rather than participative democracy: B Kohler-Koch and C Quittkat, De-mystification of Participatory Democracy: EU-Governance and Civil Society (Oxford, Oxford University Press, 2013) 36 De Búrca (n 1).

174  James Organ This chapter recommends a problem-based approach, which emphasises that the introduction of new democratic instruments must take into account the institutional and political context of the particular polity, and not over-emphasise any one feature of democracy.37 Barber described strong participatory democracy as ‘politics in a participatory mode where conflict is resolved … through a participatory process of ongoing, proximate self-legislation and the creation of a political community’. The reference to proximity and a political community, which are at the heart of the EU’s democratic deficiencies, make this definition particularly apt when analysing EU participatory democracy. The interconnected problems for more effective EU citizen participation that underpin the analysis in this chapter are: ensuring the inclusive representation of all citizens; reflecting the duality of EU citizenship, which relies on both supranational and intergovernmental democratic legitimacy; and the challenge of deciding how to integrate citizen participation through an EU Citizens’ Assembly in the EU’s complex institutional decisionmaking processes. The institutionalisation of an EU Citizens’ Assembly is not proposed here as a magic bullet that alone will suddenly ensure effective participation for all EU citizens. Instead, it is proposed as a complement to other participatory opportunities,38 some of which are examined elsewhere in this volume, to help promote citizen preferences and manage political conflict and struggles for power within the EU’s political system. As the debate about democratic innovations – participatory, deliberative or other – develops, critical reflection becomes ever more important.39 Evaluation of the shortcomings as well as the strengths of a citizens’ assembly as a possible form of citizen participation within the EU’s dual democratic system is needed. More detailed and broader analysis of the CoFoE citizens’ panels, including assessment of their internal deliberative value and their institutional influence, for example, will come once the CoFoE ends. This chapter critically reflects on the CARE project in the next section and then provides a preliminary critical reflection on the CoFoE citizens’ panels, particularly in terms of their inclusivity and impact.

III.  Citizens’ Assembly to Renew Engagement on the Future of Europe (CARE) This section presents findings from the CARE project to complement the later analysis of the CoFoE citizens’ panels’ potential as a forerunner for an EU 37 M Warren, ‘A Problem-Based Approach to Democratic Theory’ (2017) 111(1) American Political Science Review 39. 38 Smith (n 15). 39 See, eg, M Böker, ‘Justification, Critique and Deliberative Legitimacy: The Limits of Mini-publics’ (2017) 16(1) Contemporary Political Theory 19; N Curato et al (eds), ‘Democracy without Shortcuts’ (2020) 16(20) Journal of Deliberative Democracy, Special Issue.

EU Participatory Democracy  175 Citizens’ Assembly. The CARE project was funded by the EU’s Europe for Citizens Programme and concluded in 2019.40 It tested the feasibility and value of an EU Citizens’ Assembly model as a means of increasing effective participation, investigated citizen preferences for further participatory opportunities, and then made recommendations to EU institutions. The analysis in this chapter focuses on the offline component of the project: concurrent mini-publics in four Member States as part of a single EU Citizens’ Assembly.

A.  Who Participates? i.  CARE Recruitment and Participant Stratification CARE used age, gender, education level (as a proxy for socioeconomic status) and attitudes towards the EU as criteria for stratification. The 25-participant target was easily met in three Member States, but in Hungary applicant numbers were lower and several participants did not attend on the day. The CARE recruitment process was led by the lead organisation in each Member State, which ensured an extensive local reach of communication channels, but a centralised recruitment process might have reduced the variability in numbers. There are numerous reasons for variability across the Member States. It is possible, for example, that the varying strength of civil society or democratic norms have an impact on recruitment to an EU Citizens’ Assembly.41 However, some regional variability between Member States may be inevitable. Overall, the CARE Citizens’ Assembly attained an acceptable level of diversity in terms of age, gender and education level, but diversity of participants could have been broader. There was an over-representation of people with higher education and of those who were politically active. Over 80% of CARE participants had voted in the most recent European Parliament (EP) elections, which far exceeds the actual voting rate in these elections. There was also an under-representation of ethnic diversity, because in Germany we could not collect the necessary information when seeking participants. Ensuring a higher level of ethnic and socioeconomic diversity would be essential to strengthen the legitimacy of recommendations from an EU Citizens’ Assembly. More time for recruitment and stratification of participants and the extra funding available to an institutionalised EU Citizens’ Assembly, compared to the experimental CARE project, should help resolve these diversity issues.

40 CARE report (n 9). 41 J Plottka and M Müller, ‘Enhancing the EU’s Democratic Legitimacy’, Study for the Institut für Europäische Politik and Friedrich Ebert Stiftung, November 2020, https://library.fes.de/pdf-files/bueros/ bruessel/17203.pdf. See an analysis of the reasons why people choose not to participate in mini-publics in V Jacquet, ‘Explaining Non-participation in Deliberative Mini-publics’ (2017) 56(3) European Journal of Political Research 640.

176  James Organ For the validity of the recommendations and the quality of deliberation, it is also important that a range of viewpoints are represented in these participatory events.42 CARE did this by selecting participants based on their attitudes to European integration. We asked potential participants questions from the Eurobarometer to gauge their views: for example, about their trust of EU institutions as a proxy for how sceptical people might be towards developing EU democracy. Stratification enabled us to maximise the breadth of opinion in the events, but there was still an overrepresentation of participants with a positive attitude towards the EU. Participants recognised that part of the value of the deliberative process was to move outside of their ‘opinion bubble and hear different views’.43 All participants responded positively to questions about whether the conversations during the events were useful and constructive, whether they had an opportunity to speak and whether they were listened to. However, one participant did state that there was too much uniformity of thought and that barriers towards those who have different opinions should be removed.44 The organisations which recruited participants were Member State organisations that are generally positive about the EU, which could have increased applications from people with pro-EU views, while those with more sceptical EU views are less likely to see value in engaging in an EU-sponsored event. With more time for recruitment, we could have adjusted for this in-built bias and increased the diversity of opinion. Future EU participatory events will need to recruit carefully to avoid this over-representation of pro-EU views. If an EU Citizens’ Assembly were to be institutionalised and have a formalised impact on law and policy-making, it would need greater diversity than the CARE mini-publics so that they can more accurately reflect EU society and a plurality of views. That said, complete randomness and full representation of societal diversity is not possible in a small event,45 and in some cases strictly societal representation in selection is undesirable because, for instance, the views of under-represented groups are being sought.46 The design of any given citizens’ assembly needs to carefully identify its bespoke criteria for diversity in order to provide sufficient legitimacy to the impact of its recommendations on policy and law-making.

ii.  Member State or EU Events, or Both? As stated earlier, all democratic developments need to take account of the specifics of the political system that they are legitimising.47 This will be a challenge for 42 R Goodin, Innovating Democracy: Democratic Theory after the Deliberative Turn (Oxford, Oxford University Press, 2008); J Dryzek, Deliberative Democracy and beyond: Liberals, Critics, Contestations (Oxford, Oxford University Press, 2000); K Esterling et al, ‘How Much Disagreement is Good for Democratic Deliberation?’ (2015) 32(4) Political Communication 529. 43 CARE report (n 9). 44 ibid. 45 Goodin (n 42) 4. 46 As was done for young people in the CoFoE citizens’ panels. 47 Warren (n 37).

EU Participatory Democracy  177 an EU Citizens’ Assembly. The scaling-up of small deliberative events across a large geographical area, so that citizen participation through them justifies influence on political decision-making, is one aspect of this.48 In the EU, this is further complicated because it is a complex polity that has dual Member State/EU citizenship and draws legitimacy from intergovernmental and supranational sources. This means, for example, that designers of an EU Citizens’ Assembly will need to decide how its participants are stratified to reflect the legitimacy derived from Member States as political bodies and also from the size of their populations.49 The CARE project decided to decentralise its EU Citizens’ Assembly.50 Instead of holding one EU Citizens’ Assembly in a centralised location with a degressively proportionate number of participants from each Member State, we held one mini-public in each of the four Member States, which taken together form a single EU Citizens’ Assembly.51 This removed the need to stratify participants by nationality and reflected the EU’s nature as a specific type of international organisation. If the CARE model were to be implemented across the EU, the proposal would be to hold at least one mini-public in each Member State, and to increase the number in each Member State based on degressive proportionality. We see this model as having potential to scale up the use of mini-publics in a way that is logistically feasible and normatively appropriate for the duality of the EU political system. However, a decentralised approach does raise practical design challenges, particularly in terms of the consistency of events and the framing of issues. The challenge of high quality and consistent facilitation of learning, deliberation and collective recommendations across all Member States, but at the same time allowing for some degree of event-level accommodation of participant preferences, was reflected in the responses to the questions about the time allotted for deliberation. Satisfaction with the time available to deliberate was high across all states, but a sizeable minority in one state wanted more time. In a decentralised citizens’ assembly, consistency of quality inclusive deliberation is needed if there is to be a single deliberatively legitimate set of EU recommendations emanating from the parallel Member State events that can be put to EU institutions. To increase the consistency of deliberation in each event, the CARE project used a centralised organisation and design team, which translated and cascaded the procedures and content to the organisations leading the recruitment and the team of facilitators for each event. A further risk for a decentralised EU Citizens’ Assembly is that participant preferences are too Member State-focused.52 The framing of

48 S Niemeyer and J Jennstål, ‘Scaling up Deliberative Effects: Applying Lessons of Mini-publics’ in Bächtiger et al (n 28). 49 Plottka and Müller (n 41). 50 cf single centralised EU Citizens’ Assembly proposed by Smith (n 15). 51 If the funds had permitted, the project would have run a mini-public in every Member State. 52 Smith (n 15) 152.

178  James Organ deliberation from the national or EU perspective is an important aspect in the quality of participation and the degree to which the participants’ personal preferences are able to be reflected through an EU Citizens’ Assembly process.53 On the one hand, an EU Citizens’ Assembly could reduce the constraint of issues by state boundaries, but on the other hand state sensitivities and policy contexts are important factors in EU policy-making. One possible improvement for the CARE project to facilitate the interaction between Member State and EU-level framing of issues could have been to have a third day of participant deliberations, following feedback from EU institutions. This would have allowed further learning about the EU and its transnational decision-making processes, further deliberation on the recommendations made after day two, and enabled more detailed EU-level preference formation. Further research and proposals for improvement are needed concerning the negative or positive impact of how EU issues are framed in these types of events, and how to maximise consistency across the different Member State events.

B.  CARE: Scope and Recommendations For the CARE Citizens’ Assembly, a relatively technical question was chosen: how can we increase effective citizen engagement in debates about the future of Europe and influence EU policy? The organising committee decided to seek a specific recommendation for policy change rather than a statement about principles or policy direction, so five options to increase EU citizen participation were presented to participants and they were asked to select one to recommend to EU institutions. We used aggregation at the end of day 1 and day 2 to reach a clear recommendation from the majority of participants across the four Member State events rather than try to reach consensus. The relatively short timeframe to reach such a specific recommendation emphasises the need to carefully manage the role and influence of technical experts on recommendations.54 In the CARE project, the organisational board of partners from civil society organisations (CSOs) and academia set the agenda for day 1 of the Citizens’ Assembly. Participants did influence the agenda of day 2 by selecting, at the end of day 1, which two ideas for the development of EU citizen participation they wanted to explore further in day 2. The results from day 1 were as follows.

53 See more on the impact of framing effects in deliberative democracy in A Calvert and M Warren, ‘Deliberative Democracy and Framing Effects: Why Frames are a Problem and How Deliberative Mini-publics May Overcome Them’ in Grönlund et al (n 14). 54 J Fishkin, ‘Random Assemblies for Law Making: Prospects and Limits’ in J Gastil and E Wright (eds), Legislature by Lot: Transformative Designs for Deliberative Governance (New York, Verso, 2019).

EU Participatory Democracy  179 Table 9.1  Day 1 participant preferences55 Day 1 of CARE Citizen preferences regarding democratic participation instruments per participating Member State 60 40 20 0 Referendums

EU Citizens’ Assembly Hungary

Consultations Legislative Citizen Lobbying with mini Crowdsourcing publics Italy

Germany

Overall

During day 2, participants learnt and deliberated about more detailed design choices in relation to the two selected options: referendums and an EU Citizens’ Assembly. This approach meant that not every Member State mini-public deliberated their top two preferences from day 1 during day 2. The German event, for example, chose an EU Citizens’ Assembly and legislative crowdsourcing as the options they wanted to explore further, but instead examined referendums instead of legislative crowdsourcing in day 2. We were concerned that participants would resist discussing the options they had not chosen in their mini-public, but we did not get any complaints. One possible conclusion is that this showed that participants recognised and acknowledged the value of their Member State event as part of an EU-wide Citizens’ Assembly. At the end of day 2, we asked participants to select which form of citizen participation should be recommended to EU institutions. The day 2 results were as follows. Table 9.2  Day 2 participant recommendations by Member State Day 2 of CARE Citizen recommendations to EU institutions per participating Member State 20 15 10 5 0

EU Citizens’ Assembly Germany



55 CARE

report (n 9).

EU Referendums Hungary

Italy

Abstained Romania

180  James Organ Table 9.3  Day 2 participant recommendations Member States combined Day 2 of CARE Overall Votes Member States combined

18% 42% 40%

EU Citizens’ Assembly

EU Referendums

Abstentions

An EU Citizens’ Assembly was only a slight preference over EU referendums, and participants specifically commented on the value of using a range of different forms of EU citizen participation to enable engagement with and influence over EU policy and law-making. Participants did not see the options as being mutually exclusive, and in Italy the abstentions were relatively high for these reasons. For example, several participants thought that the recommendation should be to use an EU Citizens’ Assembly as a precursor to an EU-wide referendum on EU issues. This showed that participants showed some reluctance to committing to a single participatory instrument as a next step, which is an interesting example of participants taking control of framing the agenda and recommendations. They adopted the concept of a participatory system during their deliberations, without the learning and consultation phases of the events being framed in this way. Allowing this flexibility within an EU Citizens’ Assembly gives participants the chance to influence the agenda and adapt the framing set by the experts and event designers, which is important for effective participation.

C.  The Impact of the CARE Citizens’ Assembly CARE was an experimental project designed as a participatory advisory panel,56 which means that the recommendations were presented to decision-makers with



56 Fung

(n 22).

EU Participatory Democracy  181 the intention of influencing policy, but carried no formal obligation. To manage expectations, the type and likelihood of impact was made clear to participants when they first applied. The outcome of the CARE project was an open letter to EU institutions,57 an EP event attended by Members of the European Parliament (MEPs) and other EU institution representatives,58 and a closing conference with CSOs, citizens and academics to discuss findings and future plans for democratic innovation. The softer impacts of informal influencing, developing wider debates, and exploring the value and reception of new ideas are important and carry the possibility of leading to some degree of change.59 Yet, participation fatigue can set in if citizens repeatedly engage with no discernible effect on policy or if expectations are not met, and participation can become democratically counterproductive.60 It is uncertain what concrete impact the CARE project had. It may have made some limited contribution to the EU institutional debate about increasing citizen participation that has led to the CoFoE citizens’ panels, but it may not. The key point is that any impact was at the discretion of the institutional actors that were aware of the project findings. This is entirely appropriate for an experimental project, such as CARE, but for an institutionalised participatory instrument, such as an EU Citizens’ Assembly, some formal obligation needs to be imposed on the political institutions for participation to be effective.61 CARE project participants clearly wanted citizens’ assemblies to have an impact on law and policy, but, perhaps surprisingly, most did not want this impact to be the result of making recommendations legally binding. There was concern that a small-scale event could have a disproportionate impact if recommendations were binding. This could imply that the desire for strengthening citizen participation is tempered by a recognition of the value of majoritarian democracy, or it could reflect a fear of citizens’ assemblies being used as a vehicle to propagate extremist views. The majority of participants indicated that they preferred the impact to come from political pressure in response to the recommendations resulting from deliberative or participatory processes62 rather than from forcing political institutions to act. Unfortunately, there was insufficient time during the CARE events to explore these complex questions more fully. These will need careful consideration before deciding on the legal impact that an institutionalised EU Citizens’ Assembly should impose, and how it might fit within the EU policy and law-making procedures. Striking the balance between citizens’ expectations that their participation in an EU Citizens’ Assembly will influence policy and law-making, and allowing some, but not excessive, institutional discretion by not making recommendations legally binding is a fundamental design challenge. 57 See www.citizensassemblies.eu/en/blog/open-letter. 58 See www.citizensassemblies.eu/en/blog/european-parliament-discussion-record. 59 Goodin (n 42) 36–41. 60 F Mendez and M Mendez, ‘The Promise and Perils of Direct Democracy for the European Union’ (2017) 19 Cambridge Yearbook of European Legal Studies 48. 61 cf excessive mediation of the ECI as shown in Organ (n 34). 62 CARE report (n 9).

182  James Organ The CARE project has shown that there is a real appetite for ‘doing politics differently’ and that citizens want to participate in the complex questions facing Europe in a balanced and constructive way. The CARE project highlighted several important design challenges, but its decentralised approach shows that the supranational and intergovernmental elements of EU legitimacy can be reflected in a single EU-wide participatory event, and that it is feasible, with a more generous budget, to hold an institutionalised EU Citizens’ Assembly that can enable effective participation for hundreds of citizens across all EU Member States.

IV.  Citizens’ Panels of the Conference on the Future of Europe The CoFoE Rules of Procedure promise that the ‘Conference is a citizens-focused, bottom-up exercise for Europeans to have their say on what they expect from the European Union. European citizens from all walks of life and corners of the Union will be able to participate’ (emphasis added).63 This section assesses the extent to which this promise is likely to be met.

A.  Participants from ‘All Walks of Life and Corners of the Union’? A participatory event such as the CoFoE should be an opportunity that any EU citizen can take. In practice, not all citizens can participate of course, so random applicants are stratified so that participants are representative of society.64 To provide diversity, the citizens’ panel applicants were stratified using five demographic criteria: nationality, urban/rural, socioeconomic background, gender and age.65 Absolute representativeness is not attainable, or necessary, but the participants need to be sufficiently representative in order for the recommendations to be viewed as legitimate. As Robert Goodin said: ‘All that “some claim to representativeness” need mean is that the diversity of social characteristics and plurality of initial points of view in the larger society is substantially present in the deliberating mini-public.’66

63 Article 1. 64 On the legitimacy and value of mini-publics reflecting society, see J Pow et al, ‘It’s Not Just the Taking Part That Counts: “Like Me” Perceptions Connect the Wider Public to Minipublics’ (2020) 16(2) Journal of Deliberative Democracy 43; J Pow, ‘Mini-publics and the Wider Public: The Perceived Legitimacy of Randomly Selecting Citizen Representatives’ (2022) Representation: Journal of Representative Democracy (forthcoming), https://doi.org/10.1080/00344893.2021.1880470. 65 Practical Modalities of the European Citizens’ Panels, 20 May 2021, https://futureu.europa.eu/uploads/ decidim/attachment/file/10232/UPDATE_Practical_modalities_European_Citizens_Panels_20.05.21.pdf, 1. 66 Goodin (n 42) 13.

EU Participatory Democracy  183 There are concerns about both these aspects of representativeness of the citizens’ panels. First, in terms of social characteristics, there is significant concern amongst those CSOs that have observed the CoFoE citizens’ panels that the latter are not sufficiently socially diverse.67 An initial look at the breakdown of the participants in the citizens’ panels raises questions.68 Socioeconomic stratification appears to be based only on whether participants are employed or not. Split 50-50 in the panels, this is a crude measure. Gender was also split 50-50, but did not allow for the recognition of non-binary people. In some Member States, it is not possible to ask about ethnic origin, which prevents stratification on this basis and may explain the limited ethnic diversity of the citizens’ panels. The one group that the CoFoE board decided to over-represent were citizens aged between 16 and 25. A third of participants were in this age group, because the CoFoE ‘aims at allowing a specific focus on youth’.69 The rationale for this decision, and the decision not to ensure representation of other minority groups, needs more detailed explanation. Second, the citizens’ panels are likely to have lacked a ‘plurality of initial views’, because the recruitment did not stratify participants according to attitudes towards the EU. If there is a limited range of views, then it will have reduced the quality of deliberation, and the external legitimacy of recommendations. The issues seen in the CARE mini-publics relating to the over-representation of those with positive EU views, higher education levels and higher political activity may have been replicated, perhaps to an even greater degree, in the citizens’ panels. A future EU Citizens’ Assembly will need to have a much more detailed approach to stratifying participants according to their socioeconomic background, their ethnicity and their EU views than the approach taken in the citizens’ panels, because the representativeness of participants is fundamental to its democratic legitimacy. A specific EU challenge for mini-publics, in terms of selecting who participates, is to reflect the duality of EU citizenship, and manage the tension between the supranational and intergovernmental legitimisation of EU decision-making. Degressive proportionality, used for allocating seats after EP elections and Member State support for an ECI, was used in the citizen panels to decide the number of participants from each Member State. This makes the citizens’ panels appear supranational in nature by reflecting, for example, the representative diversity of the EU as a whole, but not each Member State. One might question whether this centralised, supranational approach adequately reflects Member State interests, particularly given that the CoFoE is akin to a constitutional convention that may lead to treaty change, whose legitimisation is Member State-focused. Do six

67 Citizens Take Over Europe, ‘Open Letter to Executive Board: Civil Society Organisations Call for Conference to Include Marginalised Communities’, 18 June 2021, https://citizenstakeover.eu/ blog/open-letter-to-executive-board-civil-society-organisations-call-for-conference-to-includemarginalised-communities. 68 Thanks to Maarten de Groot for early viewing of the citizen panel breakdown following his freedom of information request. 69 Practical Modalities of the European Citizens’ Panels (n 65).

184  James Organ Portuguese citizens in a citizens’ panel of 200 people, for example, effectively reflect the interests of Portugal’s 11 million citizens? Should the geographical breakdown of the citizens’ panels go further and reflect national federalism in Belgium, Spain and elsewhere? Should the representative criteria reflect the varying socioeconomic and ethnic diversity across Member States? The purpose here is not to give a definitive answer to these questions, but to underline the importance of this issue if an EU Citizens’ Assembly is to be institutionalised. The decentralised approach to an EU Citizens’ Assembly in the CARE project may help manage the tensions implicit in these questions as it is a more Member State-focused alternative to the single EU-wide panels of the CoFoE. As well as a clearer line of Member State legitimisation and a stronger opportunity to represent the plurality of Member State views, a decentralised approach would also mean a higher number of participants, which in itself gives greater flexibility in designing the representativeness of a future EU Citizens’ Assembly.

B.  ‘A Bottom-up Exercise’ in Participation: Citizens Influence the Agenda? The citizens’ panels are part of a concerted effort to give citizens influence over the CoFoE agenda. Thousands of Member State events, the digital platform and the citizens’ panels all enable citizens to influence the CoFoE plenary’s agenda and recommendations from ‘the bottom up’.70 This bears some similarities to other constitutional crowdsourcing experiences71 and could increase the effectiveness of citizen participation through the CoFoE. However, it will be interesting to assess the extent to which institutional interpretation of the citizen contributions has influenced the selection of issues to be discussed during the citizens’ panels. Greater understanding, for example, of the algorithm used to manage the digital platform contributions will be beneficial in this regard. The interconnection between the scope of the agenda of the citizens’ panels, the influence that this has on the specificity and implementation of recommendations, and the democratisation of the agenda needs greater analysis.72 The recommendations of the citizens’ panels are very wide-ranging in terms of their subject and type, which could have compromised the impact that they have on the complex EU political system. One notable limitation to the agenda is the exclusion of Treaty change. This is despite the ambitious starting point for the CoFoE, with President Emmanuel

70 ibid. 71 E Lironi, ‘Crowdsourcing EU Legislation: Harnessing the Power of Digital Democracy’ in Alemanno and Organ (n 15); H Landemore, ‘Inclusive Constitution-Making: The Icelandic Experiment’ (2015) 23(2) Journal of Political Philosophy 166. 72 S Elstub et al, ‘The Scope of Citizens Assemblies: Lessons from the Climate Assembly UK’ (2021) 13(20) Sustainability, www.mdpi.com/2071-1050/13/20/11272.

EU Participatory Democracy  185 Macron suggesting that the Conference must ‘propose all the changes our political project needs’73 and that a clear citizens’ message through the CoFoE in favour of policies that require Treaty change may trigger a full Treaty convention.74 Commentators have pointed to the value of Treaty change being the outcome of the Conference: ‘if the whole process is to be more than simply a talking shop, it must necessarily lead to some structural reforms of the EU constitutional settlement’.75 This argument has also been made in relation to the ECI, which excludes Treaty change from its scope.76 The EP, or at least its Constitutional Affairs Committee (AFCO), supports much stronger permanent inclusion of citizen participation,77 including, as shown in Chapter 8 of this volume, support for the necessary post-CoFoE Treaty amendments. A compromise was struck in the CoFoE Joint Declaration, which stated that the Conference’s scope should reflect EU competences, but did allow for it to extend to areas ‘where European Union action would have been to the benefit of European citizens’ and for citizens ‘to raise additional issues that matter to them’.78 The citizens’ panels, as part of a process to decide the future of the EU, should and did allow for the possibility of deliberation on all issues, including those that require Treaty change. Yet, the argument about the inclusion of Treaty change would be different for a future EU Citizens’ Assembly that is part of the EU legislative process because of the limited nature of EU competences.

C.  The Impact of Citizens’ Panels: Are Citizens Influencing the Future of Europe? One of the most problematic and important aspects of participatory democracy is deciding how to respond to the participation of citizens.79 The respondents to a consultation carried out by Citizens Take Over Europe repeatedly indicated their desire for impact from the CoFoE,80 as did the CARE participants. They indicated a strong willingness to engage with the CoFoE and over 100 respondents specifically stated that their hope for the CoFoE was that citizens would be listened to and trusted. However, there was also a high level of scepticism about the potential

73 F Fabbrini, ‘The Conference on the Future of Europe: Process and Prospects’ (2020) 26(5–6) European Law Journal 401, 403. 74 Alemanno (n 17). 75 Fabbrini (n 73) 413. 76 Organ (n 34). 77 EP, Resolution of 7 July 2021 on Citizens’ Dialogues and Citizens’ Participation in the EU Decision-Making, Doc No P9_TA(2021)0345. 78 CoFoE Joint Declaration (n 13) 4. 79 Plottka and Müller (n 41). 80 D Davis et al, ‘Our Voices for the Future of Europe’ (2021) Citizens Take Over Europe Consultation Report, https://citizenstakeover.eu/wp-content/uploads/2021/05/FinalConstitutionalW G-consultation-report-1.pdf.

186  James Organ for impact. One respondent colourfully described the CoFoE as being ‘like a tiger jumping but landing as a bedside rug’.81 The institutions committed to responding to participant recommendations in the CoFoE stated: ‘We hereby jointly commit to listen to Europeans and to follow up on the recommendations made by the Conference.’82 The specific promise was that: ‘The Panels’ recommendations will be debated in the Conference Plenary meetings, feed into the final Conference report and constitute a part of the Conference output on which basis EU institutions will organise the follow-up, in accordance with the Joint Declaration.’83 This reserves decision-making about how to follow up to participant recommendations to EU institutions themselves, and the obligation imposed on the institutions is limited to a duty to give reasons. Similar framing in the ECI has led to only limited impact. Yet, the citizens’ panels differ because they led to an ad hoc plenary that is a form of constituent assembly.84 They are not a permanent part of the EU legislative process. The recommendations could lead to pressure to start the Treaty change process, but Member States will ultimately need to ratify any changes. It is in the context of Treaty change that the citizens’ panels offer most learning for a future EU Citizens’ Assembly. The institutionalisation of an EU Citizens’ Assembly in the EU legislative process opens up more options regarding impact and obligation.85 Key to institutionalising an EU Citizens’ Assembly will be to decide what stage(s) of the policy or legislative process it influences. An EU Citizens’ Assembly could be held prior to the legislative process. It could be an annual event that informs legislative priorities. There could be an obligation on the EU institutions merely to consider these priorities in their decision-making or, at the other extreme, citizens could also be given the right to initiate the legislative process through the Assembly. One suggestion has been to increase the strength of the obligation according to the level of support in the Assembly.86 The EU Citizens’ Assembly could be introduced into the first or second reading of an EU legislative proposal to approve or suggest amendments, or it could be reserved for the third reading and be part of the conciliation process to resolve legislative deadlock. Numerous options exist, but all of them require careful consideration of the impact that they have on the other EU institutions and the problem that they are trying to address. Furthermore, the implementation of an EU Citizens’ Assembly as a permanent part of EU legislative decision-making, or the Treaty change process, would require a concerted political effort, whatever the obligation imposed.

81 ibid 8. 82 CoFoE Joint Declaration (n 13) 1. 83 Practical Modalities of the European Citizens’ Panels (n 65) 3. 84 Fabbrini (n 73) 408. 85 See further OECD, ‘Eight Ways to Institutionalise Deliberative Democracy’, OECD Public Governance Policy Papers No 12, 14 December 2021. 86 Smith (n 15).

EU Participatory Democracy  187 Political support for citizen participation to have more impact may be starting to develop. In the CoFoE Joint Declaration, EU institutions promised that the Conference would ‘give citizens a greater role in shaping the Union’s future policies and ambitions [and] … to follow up on the recommendations made by the Conference’. There is recognition elsewhere from the EP that this has been a problem for existing EU participatory channels: ‘the current functioning of existing participatory instruments, such as the ECI, public consultations and Citizens’ Dialogues, does not provide sufficient means for citizens to influence EU decision-making … this is largely due to the lack of effective follow-up in the decision-making process at institutional level’.87 The Commission’s proposal for a ‘feedback mechanism’ to turn citizen recommendations from the CoFoE into actions also seems to recognise the need to increase the impact of citizen participation.88 Despite the hundreds of examples of democratic innovations, having a meaningful influence on the policy and legislative agendas and outcomes remains a major obstacle.89 If an EU Citizens’ Assembly is to be institutionalised and to strengthen the effectiveness of EU citizen participation, it needs to impose stronger obligations and reduce the degree of institutional mediation and control over outcomes to a greater extent than we see in the citizens’ panels. In order for the CoFoE citizens’ panels to be the forerunner of an EU Citizens’ Assembly that meets the criteria for effective participation, political support for the key issue of ensuring participation that obliges impact will need to strengthen considerably.

V. Conclusion This chapter has explored a possible next step towards effective EU citizen participation: an EU Citizens’ Assembly, either decentralised (as in the CARE project) or centralised and more supranational (as in the CoFoE citizens’ panels). The citizens’ panels, the CARE project and other experiments have shown this to be a feasible next step – one that is appropriate for the EU’s current stage of development.90 This supports academics and CSOs that have called for a permanent EU Citizens’ Assembly.91 If the EU were to implement this bold participatory idea, an EU Citizens’ Assembly would be the first supranational instrument of its kind in the world.92

87 EP Resolution (n 77), section N of the Preamble. 88 J Plottka, ‘Making the Conference on the Future of Europe a Success’, Friedrich Ebert Stiftung Policy Paper, 18 March 2021, 3. See also Article 1 of the CoFoE Rules of Procedure: ‘A feedback mechanism will ensure that ideas expressed during the Conference events result in concrete recommendations for EU action.’ 89 R Dean et al, ‘Designing Democratic Innovations as Deliberative Systems: The Ambitious Case of NHS Citizen’ (2020) 68(3) Political Studies 689. 90 J Kuyper and F Wolkenstein, ‘Complementing and Correcting Representative Institutions: When and How to Use Mini-publics’ (2019) 58(2) European Journal of Political Research 656. 91 Citizens Take Over Europe (n 15); de Búrca (n 1); Smith (n 15). 92 Only Ostbelgien has a permanent, institutionalised mini-public of this kind at a sub-state level.

188  James Organ However, the EU needs to be clear about the problems that it is trying to solve with an EU Citizens’ Assembly and about the EU-specific challenges that its institutionalisation would bring.93 One of the core legitimacy problems for the EU political system is often referred to as the excessive distance between citizens and EU institutions. The EP’s AFCO recently stated that ‘a considerable proportion of EU citizens do not feel heard and consider the EU to be a distant entity’.94 A lack of effective citizen participation is central to this sense of distance. This chapter has highlighted the importance of inclusivity in and appropriate impact from citizen participation to reduce this distance. The EU faces some specific challenges in this regard, notably: ensuring that there is sufficient representativeness in the democratic system to reflect the supranational/intergovernmental duality of EU democratic legitimacy; and integrating a democratic instrument, such as an EU Citizens’ Assembly, into the EU’s complex legislative or Treaty procedures so that recommendations from it can influence institutional decision-making. This focus on the challenges to be addressed rather than on a model of democracy should ensure a critical, learning approach and avoid over-stating the value of any particular democratic good when designing future instruments of citizen participation. The CoFoE citizens’ panels represent a clear commitment to participatory democracy from EU institutions, particularly from the EP, and a lot will still be learned about how to institutionalise the EU’s next participatory instrument. However, an EU Citizens’ Assembly that can be criticised for its lack of inclusivity, as seems likely for the CoFoE citizens’ panels, or that has an institutional impact from its recommendations that seems unresponsive to the citizen preferences expressed through the process risks widening the gap between citizens and EU institutions, and increasing scepticism about whether engagement with EU institutions is a valuable exercise. Detailed critical analysis of the strengths and weaknesses of the CoFoE citizens’ panels will help address this and reduce the criticisms that might be levelled at a future EU Citizens’ Assembly. In order to strengthen participatory democracy and continue its piecemeal democratic evolution, the EU needs to develop new and existing participatory opportunities, connect them to each other, and provide a clear line of influence from citizen participation to law and policy outcomes. The EP has high expectations for the CoFoE in this regard: ‘the Conference on the Future of Europe will bring an important contribution in the further development of citizens’ participation in the EU policy-making process and pave the way for the establishment of new permanent mechanisms for citizens’ participation’.95 The legal foundations for this are in place in Article 11 TEU, and the CoFoE citizens’ panels have

93 Warren (n 37) 39. 94 EP AFCO, Draft Report on Citizens’ Dialogues and Citizens’ Participation in the EU Decision-Making, Doc No 2020/2201(INI), 22 March 2021, 3. 95 EP (n 77) section 63.

EU Participatory Democracy  189 demonstrated the feasibility of an EU Citizens’ Assembly, but the biggest stumbling block remains political. The CoFoE has shone a light on the value of citizen participation, but far stronger support is still needed from EU institutions and Member States before an EU Citizens’ Assembly becomes part of the next EU constitutional convention or a permanent part of the EU’s legislative procedure.

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part iii Democracy Beyond Representation Participation and EU Legislation

192

10 Is There Anybody Out There? The Role and Functioning of Pre-legislative Consultations in the EU PAOLO ZICCHITTU

I.  Introduction: Innovative Solutions to Old Problems? Over the last two decades, public support for the European Union (EU) has slowly but constantly declined. The discontent towards the EU reached its first peak between 2004 and 2005, due to the historically low turnout in European Parliament (EP) elections and the rejection of the Constitutional Treaty in the referenda in France and the Netherlands.1 Subsequently, the 2007–08 financial crisis and the related sovereign debt crisis, which was most acutely felt in Greece, posed a profound challenge to the Union, heightening the already widespread feeling that EU institutions were increasingly distant from their citizens and more focused on monetary choices than on democratic demands. Most recently, the COVID-19 pandemic further sharpened this perceived detachment between citizens and the EU, widening the gap between collective social requests and European political objectives. The initial institutional response seemed uncoordinated and the lack of immediate action in terms of political, social and economic assistance left the impression that the Union was dominated by protectionism rather than solidarity.2 The reduced popular support for the EU goes hand in hand with the absence of a shared political identity: for ordinary people, the dominant image of European

1 See S Hix, What’s Wrong with the European Union and How to Fix it (Cambridge, Polity Press, 2008) 19–20; G Abels, ‘Citizens’ Deliberations and the EU’s Democratic Deficit’ (2009) 19 Tübinger Arbeitspapiere zur Integrationsforschung 1, 4–5. 2 S Ladi and D Tsarouhas, ‘EU Economic Governance and Covid-19: Policy Learning and Windows of Opportunity’ (2020) 42 Journal of European Integration 1041, 1047–48; S Wolff and S Ladi, ‘European Union Responses to the Covid-19 Pandemic: Adaptability in Times of Permanent Emergency’ (2020) 42 Journal of European Integration 1025, 1029–30.

194  Paolo Zicchittu governance continues to be that of technocracy rather than one that is open to the broad participation of all stakeholders.3 As a direct response to this legitimation crisis, the EU promoted several participatory plans and developed new strategies to increase citizens’ involvement by consulting at different levels and by including civil society in the decision-making process to satisfy a pervasive request for (more) deliberative democracy.4 The European Commission advocated major participatory engineering, encouraging EU citizens to engage more actively in the democratic life of the Union. The citizens were invited to contribute to EU law-making and provide feedback at various stages. When developing policy – especially in relation to employment, social affairs and political inclusion – EU institutions started seeking stakeholders’ opinions and engaging with citizens in the preparation of legislative acts through workshops, hearings, consultations and surveys.5 Consequently, civil society organisations started using various bottom-up opportunities to provide the Commission with their proposals for new legislation in a more transparent, accountable and effective way.6 Groups of experts are now able to advise on political or technical issues, and the Commission can quickly check with lobbies, local authorities and non-governmental organisations (NGOs) whether a legislative proposal corresponds to the needs of the parties most concerned.7 Against this background, this chapter analyses whether the participatory innovations in EU democratic governance are merely rhetorical or whether there is a clear political ambition to institutionalise citizens’ participation in EU decisionmaking processes.8 This is performed by evaluating the legitimising potential of the Commission’s pre-legislative consultations and by assessing their capacity to better connect citizens to the EU. Examining the Union’s consultation strategy helps us to understand how this renewed attitude to citizen involvement

3 C Quittkat, ‘The European Commission’s Online Consultations: A Success Story?’ (2011) 49 Journal of Common Market Studies 653. 4 C Skelcher and J Torfing, ‘Improving Democratic Governance through Institutional Design: Civic Participation and Democratic Ownership in Europe’ (2010) 4 Regulation and Governance 71, 83; M Yang, ‘Europe’s New Communication Policy and the Introduction of Transnational Deliberative Citizens’ Involvement Projects’ in R Kies and P Nanz (eds), Is Europe Listening to Us? Successes and Failures of EU Citizen Consultations (Farnham, Ashgate, 2013) 17–34. 5 M Røed and V Hansen, ‘Explaining Participation Bias in the European Commission’s Online Consultations: The Struggle for Policy Gain without Too Much Pain’ (2018) 56 Journal of Common Market Studies 1446, 1452–53; A Rasmussen and BJ Carroll, ‘Determinants of Upper-Class Dominance in the Heavenly Chorus: Lessons from European Union Online Consultations’ (2014) 44 British Journal of Political Science 445, 447–48. 6 See more on the role of civil society in ch 3 by Luis Bouza García in this volume. 7 R Kies and P Nanz, ‘Introduction’ in Kies and Nanz (n 4) 3–4; AS Binderkrantz and A Rasmussen, ‘Comparing the Domestic and the EU Lobbying Context: Perceived Agenda-Setting Influence in the Multi-level System of the European Union’ (2015) 22 Journal of European Public Policy 552, 556–57. 8 B van Ballaert, ‘The European Commission’s Use of Consultation during Policy Formulation: The Effects of Policy Characteristics’ (2017) 18 European Union Politics 406, 415–16; A Bunea and R Thomson, ‘Consultations with Interest Groups and the Empowerment of Executives: Evidence from the European Union’ (2015) 28 Governance 517, 524–26.

Is There Anybody Out There?  195 operates in practice, what impact it has on the participants in the consultations, and how relevant the responses collected through such consultations are in terms of democracy.9 More precisely, sections II and III map the legal regime applicable to consultations that has been created over the last two decades, including an examination of the impact of the Commission’s interactions with interest groups through its Better Regulation Agenda. Section IV frames how these consultations function in practice, using their formal access, their formats and the publishing record of contributions as key methodological indicators. Section V focuses on online consultations, where different organised interests in principle have equivalent opportunities to voice their concerns. Section VI analyses actual participation in pre-legislative consultations by differentiating between the positions of various interests, types of participating organisations and Member States. Finally, section VII takes stock of the last 20 years of the use of consultations, highlighting the pros and cons of this tool.

II.  A Paradigm Shift in EU Policy-Making Bearing in mind the different stages of participation and legitimacy, three generations of consultation regimes can be identified throughout the EU’s history. The first generation began in the context of European economic integration. It prioritised output legitimacy and the idea of efficient policy implementation. Within this framework, the Commission established close ties with economic experts and business actors, whose consent was perceived as a prerequisite for enacting Community legislation. During this initial period, typical consultation instruments were bilateral contacts, multilateral meetings and issue-oriented hearings with industry associations, farmers, professional interests, employers or trade unions, which allowed Community institutions to have the highest degree of discretion in their exchange with societal actors.10 The second generation – beginning in the mid-1980s – was instead characterised by a growing concern with the broader public acceptance of European policies. The Commission became more persistent in pursuing social dialogue and promoted the ‘principle of partnership’. The Delors Commission in particular reinforced and institutionalised the participatory dimension of the internal market by discussing its policies with stakeholders. Such an innovation opened up the Union

9 M Busuioc and D Rimkutė, ‘Meeting Expectations in the EU Regulatory State? Regulatory Communications amid Conflicting Institutional Demands’ (2019) 27 Journal of European Public Policy 547, 551; AS Binderkrantz et al, ‘Countering Bias? The EU Commission’s Consultation with Interest Groups’ (2021) 28 Journal of European Public Policy 469, 473–74. 10 C Quittkat and B Kohler-Koch, ‘Involving Civil Society in EU Governance: The Consultation Regime of the European Commission’ in B Kohler-Koch and C Quittkat (eds), De-mystification of Participatory Democracy: EU-Governance and Civil Society (Oxford, Oxford University Press, 2013) 44–47.

196  Paolo Zicchittu to general interests and set the stage for the recognition of the role of citizens in EU decision-making. The Commission no longer focused on the quality of its proposals, but on their public acceptance.11 The existing instruments – consultations and funding – were adjusted to new political objectives and extended to new actors. The Commission enhanced general conditions for citizens’ consultations and introduced a well-structured dialogue with networks of NGOs and representative partners, especially in the field of employment and social affairs.12 As a result, since the beginning of the twenty-first century, there has been an increase of ‘Deliberative Citizens Involvement Projects’ (DCIPs), promoted both by the Commission and the EP, through which citizens from each Member State formed opinions about matters within the European public sphere. Such experiments were launched by the 2001 White Paper on Governance, which promised more engagement in participatory democracy. The proposed strategy was a mixture of aggregative and deliberative tools, enabling horizontal deliberation and encouraging exchange of opinion between citizens and EU decision-makers.13 These developments set the ground for the third and current generation of consultations, which have been pursued over the last 15–20 years as part of the Better Regulation Agenda. In the 2006 White Paper on a European Communication Policy, the Barroso Commission admitted the severity of the EU legitimacy crisis and recognised that civil society did not have a say in the legislative process. The EU needed to reform its consultation strategy towards enhanced participation, which the 2006 White Paper characterised as a ‘tangible shift’ from institution-centred to citizen-centred communication, where debates among individuals can unfold.14 From the viewpoint of democratic theory, the Commission’s reform programme strengthens the role of citizens as authors of governmental decisions rather than as mere beneficiaries of the rules decided by policy-makers behind closed doors.15 In this sense, pre-legislative consultations embrace the deliberative conception of public reasoning as a source of democratic acceptance, and dialogue is seen as an end in itself, allowing citizens to advocate their own interests. Informing and consulting individuals about EU politics is strictly connected to the egalitarian conception that people from all walks of life, especially marginalised groups, should be empowered to partake in public debates; for the EU, listening to citizens

11 C Mahoney, ‘The Power of Institutions: State and Interest Group Activity in the EU’ (2004) 5 European Union Politics 441, 458–59. 12 H Klüver, Lobbying in the European Union: Interest Groups, Lobbying Coalitions, and Policy Change (Oxford, Oxford University Press, 2013) 53–55; A Gornitzka and U Sverdrup, ‘Who Consults? The Configuration of Expert Groups in the European Union’ (2008) 31 West European Politics 725, 732–33. 13 European Commission, ‘European Governance – A White Paper’ COM (2001) 428, 25 July 2001, 7. 14 European Commission, ‘White Paper on a European Communication Policy’ COM (2006) 35, 1 February 2006, 7. 15 JE Fossum and PR Schlesinger, The European Union and the Public Sphere: A Communicative Space in the Making? (London, Routledge, 2008) 73–75; C Mahoney and MJ Beckstrand, ‘Following the Money: European Union Funding of Civil Society Organizations’ (2011) 49 Journal of Common Market Studies 1339, 1147.

Is There Anybody Out There?  197 is no longer understood as an option, but as an obligation to be justified through democratic participation.16 Wide-ranging interaction with interest groups favours citizens’ inclusion even on complex topics and is instrumental in legitimising EU policy proposals. These interactions are an essential policy-making tool that positively affects the European institutional balance by collecting relevant information, gaining insight into the views of all the parties concerned and eventually mobilising democratic support.17

III.  The Better Regulation Agenda and the Democratic Role of Pre-legislative Consultations In May 2015, the Juncker Commission unveiled its Better Regulation Agenda to ensure that EU decisions are adopted transparently, informed by the best available evidence, and backed by comprehensive involvement of stakeholders and citizens. Reinforcing individuals’ trust in decision-making processes would reduce the unintended consequences of political bargaining and counteract the abovementioned legitimacy crisis. The Commission sought to offer tangible advantages to citizens through various participatory initiatives that would facilitate communication, support political decisions and increase the EU’s responsiveness to the broader public.18 The Lisbon Treaty formally enabled the citizens’ regulatory intervention. Under Article 11 of the Treaty on European Union (TEU), EU institutions shall allow citizens to express and publicly exchange their views in all areas of EU action, while the Commission has to carry out broad consultations with the parties concerned to ensure the coherence and transparency of EU policies. Moreover, Article 154 TFEU provides for the consultation of representative associations and social partners on a range of issues concerning employment and public affairs. This legal framework is complemented by Protocol no 2 on the Application of the Principles of Subsidiarity and Proportionality, Article 2 of which states that, before proposing legislative acts, the Commission shall carry out broad consultations, while considering the regional and local dimensions of the action envisaged.19 16 European Commission, ‘The Commission’s Contribution to the Period of Reflection and Beyond: Plan-D for Democracy, Dialogue and Debate’ COM (2005) 494, 13 October 2005, 9. 17 cf C Quittkat and B Finke, ‘The EU Commission Consultation Regime’ in B Kohler-Koch et al (eds), Opening EU-Governance to Civil Society: Gains and Challenges (Mannheim, MZES, 2008) 187– 90; R Joosen, ‘The Tip of the Iceberg: Interest Group Behaviour in Rule Drafting and Consultations during EU Agency Rulemaking’ (2020) 27 Journal of European Public Policy 1677, 1684–85. 18 B Smulders and J-E Paquet, ‘The European Commission and its Better Regulation Agenda’ in S Garben and I Govaere (eds), The EU Better Regulation Agenda: A Critical Assessment (Oxford, Hart Publishing, 2018) 97–98; M Eliantonio and A Spendzharova, ‘The European Union’s New “Better Regulation” Agenda: Between Procedures and Politics’ (2017) 19 European Journal of Law Reform 3, 7–8. 19 C Marxsen, ‘Participatory Democracy in Europe: Article 11 TEU and the Legitimacy of the European Union’ in F Fabbrini et al (eds), What Form of Government for the European Union and the Eurozone? (Oxford, Hart Publishing, 2015) 159–61.

198  Paolo Zicchittu From a functional perspective, such reform understands stakeholders and citizen involvement as essential elements of policy preparation. The Commission explicitly defines consultations as ‘processes through which [the EU] wishes to trigger input from outside interested parties for the shaping of policy prior to a decision’ and advocates the creation of a regime that counter-balances bias in order to ‘reduce the risk of the policymakers listening to one side of the argument or of particular groups getting privileged access on the basis of sectoral interests or nationality, which is a clear weakness with the ad hoc consultations’.20 Achieving this entails three goals: more frequent consultations, systematic impact assessments and an improved evaluation system.21 In broad terms, at the beginning of every legislative activity, the Better Regulation Agenda requires the Commission to inform interest groups about the consultations planned, entitling lobbies and associations to provide feedback on these plans so that the EU can adjust its action. All interested parties can contribute to legislative proposals from the beginning of the policy-making procedure by providing institutions with legal, technical and social expertise. By enhancing the democratisation process, pre-legislative consultations are conceived as the result of a constant exchange between interest groups and EU public officials. This in turn complements the broader institutional interaction with stakeholders and increases the legitimacy of legislative proposals.22 The core of this new regulatory intervention is composed of three instruments that differ in terms of the degree to which they allow for open or limited access. The first instrument consists of online consultations. These are organised by the Commission’s Directorate General (DG) responsible for the proposal and are published on a webpage which functions as the ‘access point’. These consultations are carried out based on a policy document, and all interested parties can provide feedback through web questionnaires or email. The second instrument is stakeholder meetings, seminars or workshops, during which the Commission and pressure groups exchange their knowledge, disseminate and discuss policies, and create networks. These interactions are more restricted: they are usually organised only among the invited constituents and are typically attended by EU-level interest representatives. The third instrument consists of even more restricted fora, where 20 European Commission, ‘Better Regulation for Better Results – An EU Agenda’ COM (2015) 215, 19 May 2015, 17; A Schout and C Schwieter, ‘Two Decades of Better Regulation in the EU Commission: Towards Evidence-Based Policymaking’ (2018) Clingendael Policy Brief, https://www.clingendael.org/ sites/default/files/2018-12/PB_Better_regulation.pdf. 21 B Fraussen et al, ‘Conceptualizing Consultation Approaches: Identifying Combinations of Consultation Tools and Analyzing Their Implications for Stakeholder Diversity’ (2020) 53 Policy Sciences 473, 481–82; S Garben, ‘An “Impact Assessment” of EU Better Regulation’ in S Garben and I Govaere (eds), The EU Better Regulation Agenda: A Critical Assessment (Oxford, Hart Publishing, 2018). 22 cf, eg, A Bunea, ‘Regulating EU Lobbying: In Whose Interest?’ (2019) 26 Journal of European Public Policy 1579, 1587–88; H Klüver et al, ‘Legislative Lobbying in Context: Towards a Conceptual Framework of Interest Group Lobbying in the European Union’ (2015) 22 Journal of European Public Policy 447, 459–61.

Is There Anybody Out There?  199 a limited and predefined number of interests are included in meetings held by the relevant Commission DGs. These meetings take place in various institutional settings and are a more privileged way of interest representation.23 Within this framework, the Commission consults stakeholders and citizens with two objectives in mind – capacity building and legitimisation – aiming to increase the quality of legislation and improve the evidence base for an initiative. Concerning capacity building, since EU institutions operate in a complex environment and have incomplete in-house expertise, consultations strengthen their problem-solving capacity by collecting external knowledge from different pressure groups.24 Concerning legitimisation, since the Commission is a non-majoritarian body, it needs civil society’s political backing to support its action. The EU thus organizes consultations to mobilise key constituencies, varying from the public at large to specific groups, with pre-legislative consultations opening up the decisionmaking process to organised interests through interactions with civil society.25 The Better Regulation Agenda therefore pursues: output legitimacy, rooted in technical and performative reputation, through restricted meetings with key stakeholders; and input legitimacy, rooted in legal and procedural reputation, through online consultations that allow for the expression of broad public interests.26 Most recently and in continuity with its predecessors, even the Von der Leyen Commission highly stressed the role of citizen participation by further highlighting the importance of debate for creating a common European civic space. As President-elect, Ursula von der Leyen required ‘a new push’ for EU democracy, including a Conference on the Future of Europe, in which stakeholders and citizens shall play ‘a leading and active role’.27 This aims to demonstrate the Commission’s commitment to a meaningful process of democratic renewal that goes beyond oneoff initiatives. It is essential that EU institutions demonstrate how people’s input via consultations has been taken on board in policy-making, and this necessitates a concerted communications strategy, through which citizens will be informed about the policy processes on the issues that are close to their hearts.28 23 European Commission (n 20) 20. 24 A Bunea, ‘Sharing Ties and Preferences: Stakeholders’ Position Alignments in the European Commission’s Open Consultations’ (2015) 16 European Union Politics 281, 293–94; AW Chalmers, ‘In over Their Heads: Public Consultation, Administrative Capacity and Legislative Duration in the European Union’ (2014) 15 European Union Politics 595, 602–03. 25 A Dür and G Mateo, Insiders versus Outsiders: Interest Group Politics in Multilevel Europe (Oxford, Oxford University Press, 2016) 93–94; J Maśnicki, ‘Good Governance through Better Regulation: Looking for the Impact Analysis Approach to the Proportionality Principle’ in R Grzeszczak (ed), Challenges of Good Governance in the European Union (Baden-Baden, Nomos, 2016) 197–228, 210–11. 26 M Dawson, ‘Better Regulation and the Future of EU Regulatory Law and Politics’ (2016) 53 CML Rev 1209, 1226–27; A Bunea, ‘Designing Stakeholder Consultations: Reinforcing or Alleviating Bias in the European Union System of Governance?’ (2017) 56 European Journal of Political Research 46, 56–57. 27 U von der Leyen, ‘Opening Statement in the European Parliament’s Plenary Session’, 16 July 2019, https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_19_4230. 28 V Schmidt and M Wood, ‘Conceptualizing Throughput Legitimacy: Procedural Mechanisms of Accountability, Transparency, Inclusiveness and Openness in EU Governance’ (2019) 97 Public Administration 727, 728–29; P de Wilde and C Rauh, ‘Going Full Circle: The Need for Procedural Perspectives on EU Responsiveness’ (2019) 26 Journal of European Public Policy 1737, 1742.

200  Paolo Zicchittu What one could call the ‘Von der Leyen Agenda’ thus requires consultations to become a permanent mechanism in the EU, while also aiming to: (a) achieve a more unified and coherent format of consultations so as to make their results more easily comparable; (b) clearly specify the EU initiative’s objective from the outset so as to avoid raising unrealistic expectations; and (c) make the subject of consultations as precise as possible, avoiding general topics so as to allow for more useful input and more specific proposals.29 Following each consultation round, EU institutions should consider inviting citizens’ representatives to Brussels to present their ideas and update them on the issues they raise as a method of obtaining further feedback on a specific topic from a randomly selected group of citizens.30 However, so far, the outcomes of consultations – both in terms of process and policy substance – have largely been absent from political discourse. The impression is that the exercise has already been forgotten, and the outbreak of the COVID-19 pandemic has plausibly contributed to this.31 What is still unclear is the actual success of these large-scale consultations in terms of their effectiveness and implementation. Despite its innovativeness compared to previous reform packages, the capacity of the Von der Leyen Agenda to function as a legitimacy-enhancing programme and the extent to which the reforms it calls for will make the Commission more prone to participatory democratic practices remains an open question. In order to examine this, it is useful to determine how citizen consultations operate in practice, what their impact on democracy is and what the Commission does with the contributions it receives.

IV.  Setting the Standards for European Stakeholder Consultations According to the Better Regulation criteria, pre-legislative consultations with citizens follow four general principles: participation, openness and accountability, effectiveness and coherence.32 Although they are not legally binding, they give the Commission precise instructions on how pressure groups should be involved in

29 C Rauh, ‘EU Politicization and Policy Initiatives of the European Commission: The Case of Consumer Policy’ (2019) 26 Journal of European Public Policy 344, 349–50. 30 U von der Leyen, ‘A Union That Strives for More’, 2019, https://ec.europa.eu/info/sites/default/ files/political-guidelines-next-commission_en_0.pdf; A Deligiaouri and J Suiter, ‘Evaluation of Public Consultations and Citizens’ Participation in 2015 Better Regulation Agenda of the EU and the Need for a Deliberative E-Rulemaking Initiative in the EU’ (2021) 22 European Politics and Society 69, 79–81. See more on the idea of an EU Citizens’ Assembly in ch 9 by James Organ in this volume. 31 G de Stefano, ‘Covid-19 and EU Competition Law: Bring the Informal Guidance on’ (2020) 11(3–4) Journal of European Competition Law and Practice 121, 122–23; M Eliantonio and O Stefan, ‘The Elusive Legitimacy of EU Soft Law: An Analysis of Consultation and Participation in the Process of Adopting COVID-19 Soft Law in the EU’ (2021) 12 European Journal of Risk Regulation 159, 161–62. 32 cf European Commission, ‘Better Regulation Guidelines’ SWD (2017) 350, 7 July 2017, 70.

Is There Anybody Out There?  201 policy-making. Following these guidelines, the EU has to make the process transparent to the interested parties and the general public. Several key standards complement these principles: clarity, targeting, publication, time limits for consultations and feedback.33 More precisely, the guidelines recommend that pressure groups and social partners be consulted as early and as widely as possible so as to ensure an inclusive approach that allows citizens to contribute to the timely development of effective policies. Consultations are publicly managed through the ‘Have Your Say’ portal, where individuals and associations can share their views with the Commission by answering questionnaires and commenting on legislative drafts.34 Pre-legislative consultations are organised in a decentralised way by the Commission services leading the EU legislative initiative. Each DG autonomously chooses the method of consultation based on its objectives, target groups and resources.35 The consultation process consists of three stages, each of which comprises several steps, as consultation is not a one-off event, but an ongoing, dynamic and case-based process that may differ significantly depending on the policy area and the specifics of a given EU legislative proposal.36 The first phase concerns the definition of the consultation strategy. The lead DG prepares the strategy and presents a legislative roadmap with the key phases of the initiative. Stakeholders can provide feedback on this roadmap, which can relate both to policy efficiency and the scope of the new initiative. Every feedback, supporting document and material is published on the ‘Have Your Say’ website, where citizens can choose to make their suggestions public or remain anonymous. This enables the interested parties to evaluate how their suggestions contribute to the fine-tuning of the legislative initiative. The Commission then assesses the submissions and publishes an explanatory memorandum with a general response to the comments received. Subsequently, stakeholders are categorised based on the context, scope and expected impacts of the initiative in order to determine the most appropriate consultation method. The Better Regulation criteria provide that each stakeholder must be transparently reported on the ‘Have Your Say’ portal, so that the whole spectrum of views is taken into account and biased conclusions are avoided. Successful stakeholder mapping thus involves identifying those social and economic categories that are relevant for the given policy area.37 33 ibid 70–71. 34 C Radaelli, ‘Halfway through the Better Regulation Strategy of the Juncker Commission: What Does the Evidence Say?’ (2018) 56 Journal of Common Market Studies 85, 90. 35 H Klüver et al, ‘Framing in Context: How Interest Groups Employ Framing to Lobby the European Commission’ (2015) 22 Journal of European Public Policy 481; A Rasmussen and D Toshkov, ‘The Effect of Stakeholder Involvement on Legislative Duration: Consultation of External Actors and Legislative Duration in the European Union’ (2013) 14 European Union Politics 366, 372–73. 36 J Beyers and S Arras, ‘Who Feeds Information to Regulators? Stakeholder Diversity in European Union Regulatory Agency Consultations’ (2020) 40 Journal of Public Policy 573. 37 European Commission (n 32) 75–76; S Arras and C Braun, ‘Stakeholders Wanted! Why and How European Union Agencies Involve Non-State Stakeholders’ (2018) 25 Journal of European Public Policy 1257, 1267–68; S Pagliari and K Young, ‘The Interest Ecology of Financial Regulation: Interest Group Plurality in the Design of Financial Regulatory Policies’ (2016) 14 Socio-economic Review 309, 317.

202  Paolo Zicchittu The second phase concerns the actual conduct of the consultation. This officially starts once the consultation strategy is validated and endorsed by the Commission’s interservice group. The launch of the consultation is announced to ensure that it reaches all targeted groups. A dedicated webpage for evaluating the policy initiative is then created, and the strategy, including the planned event dates, is published on the ‘Europa’ website. The Commission also updates the information about different actions linked to the ongoing initiative.38 The third and final stage concerns results analysis. This consists of examining citizens’ and stakeholders’ contributions through their brief descriptive overview and qualitative assessments. More precisely, the Commission verifies the source and reliability of the information received, identifying views that strongly diverge from the mainstream opinion and assessing the need for additional consultations.39 In short, during this phase, the EU conducts a qualitative analysis of each contribution by evaluating the interests represented in the policy area and the way in which stakeholders benefit from or are impacted by the legislative proposal.40

V.  The Online Consultations Regime As stated above, pre-legislative consultations are a mixture of different participatory tools, which are not mutually exclusive, but can be used by the Commission if and when needed.41 These tools include workshops, expert groups, hearings with lobbies, stakeholders’ conferences, restricted fora and, last but not least, online consultations (OCs). Compared to the other participatory instruments, OCs, being particularly easy to organise, are considered more effective not only because they reach a broader range of interests, but also because they can permanently include citizens in the EU legislative process.42 OCs aim both

38 M van Hecke et al, ‘You’ll Never Lobby Alone: Explaining the Participation of Sub-national Authorities in the European Commission’s Open Consultations’ (2016) 54 Journal of Common Market Studies 1433, 1441; SW Yackee, ‘Participant Voice in the Bureaucratic Policymaking Process’ (2015) 25 Journal of Public Administration Research and Theory 427, 437–38. 39 European Commission (n 32) 87–88. 40 I Pérez Durán, ‘Interest Group Representation in the Formal Design of European Union Agencies’ (2018) 12 Regulation and Governance 238, 249–51; T Bernauer and R Gampfer, ‘Effects of Civil Society Involvement on Popular Legitimacy of Global Environmental Governance’ (2013) 23 Global Environmental Change 439, 447–48. 41 M Egeberg and J Trondal, ‘Researching European Union Agencies: What Have We Learnt (and Where Do We Go from Here)?’ (2017) 55 Journal of Common Market Studies 675, 686–87; B Fraussen et al, ‘The Expanding Core and Varying Degrees of Insiderness: Institutionalised Interest Group Access to Advisory Councils’ (2015) 63 Political Studies 569, 581. 42 S Boucher, If Citizens Have a Voice, Does the EU Have Ears? Lessons from Recent Citizen Consultation Experiments for the European Union (Paris, Notre Europe, 2008); J Steffek and MP Ferretti, ‘Accountability or “Good Decisions”? The Competing Goals of Civil Society Participation in International Governance’ (2009) 23 Global Society 37, 39–40.

Is There Anybody Out There?  203 to lower the cost of dissemination and feedback collection in terms of time and material resources, and to turn EU institutions into more active receivers of input from organised interests.43 In sum, OCs bring together an extensive spectrum of different consultative mechanisms – ranging from professionally oriented tools to stakeholder-centred ones – to attract citizens’ interest and involve the wider public.44 Given these characteristics, OCs represent the most glowing example of the paradigm shift in the EU’s democratic structure introduced by the Commission in the form of DCIPs and the Better Regulation Agenda.45 From an empirical viewpoint, although OCs have progressively become an instrument for regular stakeholder involvement in policy-making, they are not used by all Commission services and, where they are used, they are not used to the same extent and in the same way. In the period from 2000 to 2020, during which the Commission has extensively reformed its consultation strategy, the most active DGs and executive agencies in terms of the number of consultations organised were: the DG for Internal Market, Industry, Entrepreneurship and SMEs (DG GROW) with 198 consultations; the European Innovation Council and Small and Medium-Sized Enterprises Executive Agency (EISMEA) with 196 consultations; the DG for Health and Food Safety (DG SANTE) with 179 consultations; and the DG for Environment (DG ENV) with 134 consultations.46 There are also Commission services that either did not organise OCs or only did so very rarely. This is the case with DGs in the more politically sensitive fields, such as the DG for Economic and Financial Affairs (DG ECFIN) and the DG for European Neighbourhood and Enlargement Negotiations (DG NEAR). However, when implemented, these consultations are used in all phases of the policy cycle. About two-thirds of the OCs take place at the early stage of the legislative proposal. A comparison of the OCs organised by the DG for Employment, Social Affairs and Inclusion (DG EMPL) and DG SANTE in the same 2000–20 period illustrates the variation in their use. In the case of DG EMPL, OCs are launched at

43 C Quittkat and P Kotzian, ‘Lobbying via Consultation: Territorial and Functional Interests in the Commission’s Consultation Regime’ (2011) 33 Journal of European Integration 401, 411–12; J O’Mahony, ‘The Promises and Pitfalls of Participation: What Voice for the Regional Advisory Councils?’ in B Kohler-Koch et al (eds), Opening EU-Governance to Civil Society: Gains and Challenges (Mannheim, MZES, 2008) 231–32. 44 G Smith, Democratic Innovations: Designing Institutions for Citizen Participation (Cambridge, Cambridge University Press, 2009) 107–10; A Fischer-Hotzel, ‘Democratic Participation? The Involvement of Citizens in Policy-Making at the European Commission’ (2010) 6 Journal of Contemporary European Research 335, 351–52. 45 M Bauer, ‘Campaign-Triggered Mass Collaboration in the EU’s Online Consultations: The ISDS-in-TTIP Case’ (2015) 14 European View 121, 129; I Pérez Durán, ‘Political and Stakeholder’s Ties in European Union Agencies’ (2019) 26 Journal of European Public Policy 1, 18–19. 46 European Commission, ‘Have Your Say: Published Initiatives’, https://ec.europa.eu/info/law/ better-regulation/have-your-say/initiatives_en?feedbackOpenDateFrom=01-01-2000&feedbackOpen DateClosedBy=31-12-2020.

204  Paolo Zicchittu the very beginning of policy preparation and they are usually open to all interested parties.47 Conversely, DG SANTE launches OCs at various stages of the legislative cycle, and it often initiates OCs more than once regarding the same project. After a first consultation, a second or third one can be launched concerning the revised version of the original document, and this is usually accompanied by changes in the definition of the interested parties. The more advanced stages of policy formulation thus correspond with the more specialised and restricted target groups.48 Looking more closely at the addressees, three groups of OCs can be identified: open, selective and closed. The majority (92%) belong to open OCs directed towards stakeholders, interested parties and the wider public. They give equal chance of access to a broad range of actors: public authorities, associations and citizens. Specific stakeholder groups are rarely targeted and any interested party can participate. Selective OCs (5%) are those geared towards well-defined groups. Such consultations handle very technical issues and are especially used by DG GROW or the DG for Taxation and Customs Union (DG TAXUD). Finally, a very small group of closed OCs (around 3%) is reserved for industries, business organisations and national public authorities.49 The existence of selective and closed OCs is noteworthy because they were initially framed as an instrument for including civil society in the policy-making process. Yet, not all DGs use this tool towards a broad audience and certainly not regarding all issues. While all DGs use online consultations to improve the quality of EU legislation, not all of them consider it useful or necessary to always involve citizens at large. Highly technical issues and those related to subsidiarity or finances are typically dealt with through selective or closed OCs, meaning that the more concrete the facts of the case are, the less likely the Commission is to consult the wider public.50 Although it only applies to a minority of OCs, reduced access to online consultations on extremely technical and sensitive issues is questionable because it diverts from the Commission’s proclaimed aim of democratic inclusion. However, several analyses on e-participation show that public interest in technical problems is significantly declining, suggesting that the right of access to consultations does not guarantee broad citizen involvement. While OCs reach out

47 European Commission, ‘Have Your Say: Published Initiatives’, https://ec.europa.eu/info/law/ better-regulation/have-your-say/initiatives_ en?topic=EMPL&feedbackOpenDateFrom=01-01-2000& feedbackOpenDateClosedBy=31-12-2020. 48 European Commission, ‘Have Your Say: Published Initiatives’, https://ec.europa.eu/info/law/ better-regulation/have-your-say/initiatives_ en?topic=FOOD&feedbackOpenDateFrom=01-01-2000 &feedbackOpenDateClosedBy=31-12-2020. 49 European Commission, ‘Have Your Say: Published Initiatives’, https://ec.europa.eu/info/law/ better-regulation/have-your-say/initiatives_en?feedbackOpenDateFrom=01-01-2000&feedbackOpen DateClosedBy=31-12-2020. 50 M Karlsson, ‘A Panacea for Pan-European Citizen Participation? Analysis of the 2009 European Citizens Consultations’ in E Amnå (ed), New Forms of Citizen Participation: Normative Implications (Baden-Baden, Nomos, 2010) 108–09; B Kohler-Koch and B Finke, ‘The Institutional Shaping of EU–Society Relations: A Contribution to Democracy via Participation?’ (2007) 3 Journal of Civil Society 205, 211–12.

Is There Anybody Out There?  205 to a large group of addressees, the latter usually provide input where the subject matter of the consultation is of direct concern to them, which means that the issues treated define the size and composition of each policy community.51 In addition, OCs are frequently used to verify whether stakeholders and citizens agree on the conformity of a new policy with the principles of subsidiarity and proportionality. Interested parties are asked to support the Commission’s initiative and confirm the existence of a political need for new legislation. In these cases, the Commission primarily collects information from targeted stakeholders to minimise the risk of unintended side effects, which enables it to anticipate the prospects of legislative decision-making.52 Actual participation is also highly influenced by the format of consultation: the more standardised the OC, the higher the participation, especially by individuals. Yet, standardised forms hardly leave room for qualitative or innovative inputs.53 This is different with semi-standardised forms, which contain open questions, and with non-standardised questionnaires, by which the Commission presents a draft document and asks for comments without any further instruction. In fact, semi-standardised and non-standardised OCs allow interested parties to present complex and well-grounded comments, which should have a positive effect on the quality of the resulting EU legislation.54 Some authors have criticised standardised questionnaires because they are often used as simple surveys or even instruments by which the Commission seeks approval for its policies without offering enough space and time for elaborate input.55 In this respect, there has been a shift away from non-standardised towards standardised or semi-standardised OCs, and this development runs the risk of emphasising participation (quantity) at the expense of contribution (quality), because a higher number of participants is likely to lower the probability of receiving competent feedback and may turn OCs into mere box-ticking exercises.56 In its Minimum Standards, the Commission clarifies that representativeness of interests should not be considered the only relevant benchmark for DGs in deciding which organisations should be granted access to the consultation process and how the

51 cf A Rasmussen and V Gross, ‘Biased Access? Exploring Selection to Advisory Committees’ (2015) 7 European Political Science Review 343, 351. 52 J Labitzke, ‘Consultation Processes as a Practice of Legitimacy in the EU Legislative Process’ (2012) 20 Journal of Contemporary European Studies 323, 335–36. 53 Quittkat and Kotzian (n 43) 411–12. 54 S Wright, ‘The Participatory Journey in Online Consultations’ in S Coleman and PM Shane (eds), Connecting Democracy: Online Consultation and the Flow of Political Communication (Cambridge MA, MIT Press, 2012) 149–72. 55 EG Heidbreder, ‘Civil Society Participation in EU Governance’ (2012) 7 Living Reviews in European Governance 5, 13; S Arras and J Beyers, ‘Access to European Union Agencies: Usual Suspects or Balanced Interest Representation in Open and Closed Consultations?’ (2020) 58 Journal of Common Market Studies 836, 843. 56 E Lironi and D Peta, EU Public Consultations in the Digital Age: Enhancing the Role of the EESC and Civil Society Organisations (Brussels, EESC, 2017).

206  Paolo Zicchittu relevance and quality of the contributions received should be evaluated. Rather, DGs have to adopt an active approach to consultation and seek out participation from relevant target groups.57 The move towards standardised OCs and the change of emphasis from contribution to participation directly affect the consultations’ transparency. This is because the publication of individual contributions and reports is the exception rather than the rule, and no easily accessible instrument is offered to citizens to trace whether and, if so, how the results of an OC are taken into account by the Commission in its decision-making process.58 Lastly, striking a balance between obtaining feedback from societal groups and evaluating them is the most demanding part of OCs. Post-consultation reports are critical to the participating stakeholders, as they want to compare their responses with the overall results and learn which arguments are taken up by the Commission and for which reasons. Concerning the input assessment process which feeds into the aforementioned reports, it remains unclear what criteria are used to evaluate the representativeness of each contribution. The Minimum Standards require all received input to be published online to achieve transparency. Nevertheless, only contributions to less than half of the OCs are publicly accessible, and only about one third of the reports are available. In addition, some records are not linked to the specific OC on the ‘Your Voice in Europe’ portal. Reporting therefore turns out to be the real ‘Achilles’ heel’ of OCs, as citizens are confronted with a high degree of ambiguity concerning the inputs sent to the Commission and their further processing.59

VI.  The Participation of Represented Interests in Pre-legislative Consultations Since 2006, after the Barroso Commission significantly enhanced citizen participation in the EU, individual citizens’ direct involvement amounted to some 25 submissions a year. However, in the vast majority of consultations, participation by individuals is almost irrelevant, and in around one third of the consultations, there is no participation at all, although in a few consultations individuals can provide valuable feedback – for instance, on environmental issues, financial regulation or taxation.60 57 European Commission, Communication ‘Towards a Reinforced Culture of Consultation and Dialogue – General Principles and Minimum Standards for Consultation of Interested Parties by the Commission’ COM (2002) 704, 11 December 2002, 2–3. 58 R Primova, ‘Enchancing the Democratic Legitimacy of EU Governance? The Impact of Online Public Consultations in Energy Policymaking’ (2011) 1 RECON Online Working Paper 13; R Kies, Promises and Limits of Web-Deliberation (Basingstoke, Palgrave Macmillan, 2010). 59 C Rauh, ‘EU Politicization and Policy Initiatives of the European Commission: The Case of Consumer Policy’ (2019) 26 Journal of European Public Policy 344, 361–62. 60 European Commission, ‘Have Your Say-Published Initiatives’, https://ec.europa.eu/info/law/ better-regulation/have-your-say/initiatives_en?feedbackOpenDateFrom=01-01-2006.

Is There Anybody Out There?  207 Strong citizen participation, accounting for more than half of the contributions submitted by individuals, takes place in two scenarios. The first scenario occurs when the Commission conducts its consultation through an online questionnaire. This makes participation extremely simple since individuals do not need to produce their own written statement, but can simply fill out a survey with multiple-choice questions. In the second scenario, there is a pre-existing campaign backed up by a well-structured organisation that has prepared the submission and distributed it across different interested circles. Consequently, citizens can join the petition by adding their data and sending them to the Commission without any further intervention.61 Additionally, while private experts – such as academics, independent researchers or think-tank members – tend to give very detailed answers to the questions raised by the Commission, non-expert citizens do not engage with the consultation in depth, but often give short comments and opinions.62 In around two thirds of the consultations, the inputs provided by national governments and regulatory bodies account for less than 25% of the contributions submitted. On many issues – for example, economic and social cohesion, regulation of the procurement market, and state aid reporting obligations – public agencies form the leading participating group. In general, national authorities (eg, government ministries) are more likely to participate in consultations than local institutions, although an increased involvement of municipal bodies is noticeable, especially in consultations involving regionally relevant matters, including agricultural policy.63 This can be explained by the fact that these authorities represent large constituencies, which contributes to a more balanced overall representation of interests in the EU legislative process.64 Thus far, in the same period, the actors which have participated in prelegislative consultations are mostly business and industry organisations. In over 70% of the consultations, associations with profit-oriented goals are the largest participating units.65 These groups are dominant in consultations on the internal market, competition and energy, while their participation is weak in the areas of environment protection, public health and development politics. Their dominance has been unaffected by COVID-19 because consultations on public health are still dominated by businesses.66 Among companies, those usually 61 C Marxsen, ‘Open Stakeholder Consultations at the European Level: Voice of the Citizens?’ (2015) 21 European Law Journal 257, 264. 62 M Hartlapp et al, Which Policy for Europe? Power and Conflict inside the European Commission (Oxford, Oxford University Press, 2014). 63 European Commission, ‘Have Your Say: Published Initiatives’, https://ec.europa.eu/info/law/betterregulation/have-your-say/initiatives_en?feedbackOpenDateFrom=01-01-2000&feedbackOpenDateCl osedBy=31-12-2020. 64 C Ruzza, ‘Social Movements and the European Interest Intermediation of Public Interest Groups’ (2011) 33 Journal of European Integration 453, 457–58. 65 Røed and Hansen (n 5). 66 European Commission, ‘Have Your Say: Published Initiatives’, https://ec.europa.eu/info/law/betterregulation/have-your-say/initiatives_en?text=COVID-19&topic=HEALTH&%20feedbackOpen DateFrom=01-03-2020&feedbackOpenDateClosedBy=30-08-2021.

208  Paolo Zicchittu submitting their contributions are large corporations and those with specific expertise in particular areas. Multinational finance companies – especially banks and investment firms – are also among the frequent contributors to pre-legislative consultations.67 Regarding not-for-profit organisations, their submissions amount to less than 25 per year and are dominated by larger actors, while grassroots citizens’ groups seldom contribute to pre-legislative consultations. Only in a small number of cases is broader participation noticeable, with NGOs forming the largest participating group in less than 10% of consultations.68 Civil society is particularly well organised and active in environmental protection. Conversely, pre-legislative consultations attract a broad spectrum of interest organisations, such as professional associations in the area of public health and welfare rights organisations in the areas of employment and social affairs.69 Finally, research institutions – such as universities, working groups of academics and think tanks – play a minor role in consultations, at least in numerical terms, since their share in the total number of consultations amounts to less than 5%.70 Nevertheless, there are sessions in which participation from research institutions has been relatively strong. For example, in the consultation on a possible EU space programme, the participation of researchers ranked highest with close to 50% of the total number of contributions.71 In the consultation on the Revision of the Clinical Trials Directive, their participation amounted to 44%.72 Furthermore, in the two consultations conducted in the field of research and technology, the involvement of academic institutions was significantly higher than in most other consultations. Specifically, contributions by research institutions to the ‘Consultation on Scientific Information in the Digital Age’ amounted to 25%,73 while their contribution to the ‘Public Consultation on the Bio-Based Economy for Europe’ amounted to 20%.74

67 B van Ballaert, ‘The Politics behind the Consultation of Expert Groups: An Instrument to Reduce Uncertainty or to Offset Salience?’ (2015) 3 Politics and Governance 139, 144. 68 European Commission, ‘Have Your Say: Published Initiatives’, https://ec.europa.eu/info/law/ better-regulation/have-your-say/initiatives_en?feedbackOpenDateFrom=01-01-2000&feedbackOpen DateClosedBy=31-12-2020. 69 J Beyers et al, ‘The Alignment of Parties and Interest Groups in EU Legislative Politics: A Tale of Two Different Worlds?’ (2015) 22 Journal of European Public Policy 545, 559; D Varela, ‘Just a Lobbyist? The European Parliament and the Consultation Procedure’ (2009) 10 European Union Politics 7, 25–26. 70 European Commission, ‘Have Your Say: Published Initiatives’, https://ec.europa.eu/info/law/ better-regulation/have-your-say/initiatives_en?feedbackOpenDateFrom=01-01-2000&feedbackOpen DateClosedBy=31-12-2020. 71 European Commission, ‘Have Your Say: Published Initiatives’, https://ec.europa.eu/growth/ content/results-public-consultation-concerning-possible-eu-space-programme_is. 72 European Commission, ‘Have Your Say: Published Initiatives’, https://ec.europa.eu/health/ human-use/clinical-trials/directive_en. 73 European Commission, ‘Have Your Say: Published Initiatives’, https://op.europa.eu/en/ publication-detail/-/publication/910f0e62-cd01-4c47-b8c1-d486ef56ad2b/language-en. 74 European Commission, ‘Have Your Say: Published Initiatives’, https://ec.europa.eu/research/ bioeconomy/news-events/news/20110926_en.htm.

Is There Anybody Out There?  209

VII. Conclusions At first glance, responses to public consultations show that the Commission succeeded in creating conditions for effective stakeholder participation, suggesting that the new regime is more than a paper tiger. Concerning the Commission’s aim to increase EU democratic legitimacy, the introduction of OCs can be considered a vital tool insofar as it contributes to better informed policy-making by involving a wide range of actors.75 From the publication of the 2006 White Paper to 31 December 2020, the Commission conducted around 130 consultations a year.76 In quantitative terms, the variety of consultations in recent years has generally increased. Pre-legislative consultations during the period from 2015 to 2019, which is the timeframe for the implementation of Juncker’s Better Regulation Agenda, spread across 265 proposals and reached out to nearly all categories of actors, functional and territorial interests, and organisational levels.77 In most cases, different types of consultation instruments were used. OCs, allowing for the most open involvement of external actors, were used in almost 70% of proposals, while in less than 15% of cases a restricted consultation was carried out. Stakeholder conferences, which also enable a relatively broad involvement of external actors, were used in about 10% of proposals. Expert groups or advisory committees were used in about 5% of cases.78 Finally, even the COVID-19 pandemic does not seem to have affected the use of consultations: from 1 January 2020 to 30 November 2021, the Commission carried out 259 pre-legislative consultations (161 of them online).79 There were also 24 soft law measures in which the Commission pledged to consult both stakeholders and Member States at the implementation stage, or where it encouraged Member States to set up consultation procedures or ensure participatory processes. For example, in its ‘Guidelines on seasonal workers in the context of Covid-19’, the Commission invited Member States to consider including seasonal workers in consultations on health and safety at work.80 Similarly, in its ‘Guidance on the

75 T Davies and S Peña Gangadharan, Online Deliberation: Design, Research, and Practice (Stanford, CSLI Publications, 2009). 76 European Commission, ‘Have Your Say: Published Initiatives’, https://ec.europa.eu/info/law/ better-regulation/have-your-say/initiatives_en?feedbackOpenDateFrom=01-01-2006&feedbackOpen DateClosedBy=31-12-2020. 77 European Commission, ‘Have Your Say: Published Initiatives’, https://ec.europa.eu/info/law/ better-regulation/have-your-say/initiatives_en?feedbackOpenDateFrom=01-01-2015&feedbackOpen DateClosedBy=31-12-2019&frontEndType=LEG_PROP. 78 European Commission, ‘Have Your Say: Published Initiatives’, https://ec.europa.eu/info/law/ better-regulation/have-your-say/initiatives_en?feedbackOpenDateFrom=01-01-2015&feedbackOpen DateClosedBy=31-12-2019&frontEndType=LEG_PROP. 79 European Commission, ‘Have Your Say: Published Initiatives’, https://ec.europa.eu/info/law/ better-regulation/have-your-say/initiatives_en?feedbackOpenDateFrom=01-01-2020&feedbackOpen DateClosedBy=29-11-2021&frontEndType=LEG_PROP. 80 European Commission, ‘Guidelines on Seasonal Workers in the EU in the Context of the COVID-19 Outbreak’, COM (2020) 413, 16 July 2020, 4.

210  Paolo Zicchittu resumption of tourism and hospitality services in the context of Covid-19’, the Commission sought to continue working with Member States’ public authorities, tourism stakeholders and international organisations to facilitate the implementation of the Guidance, and encouraged Member States’ authorities to work closely with stakeholders in elaborating infection prevention and control measures or protocols.81 Despite expectations of a decline in their use due to the pandemic, consultation meetings and workshops proceeded normally, given that consultations can involve all interested stakeholders remotely. However, the vast majority of these consultations retrieve information from stakeholders through quantitative and qualitative input based on open-format texts and semi-standardised questionnaires, with participation becoming dominated by experts and business groups.82 Such an approach favours economic stakeholders, such as businesses and industries, and national authorities with relatively strong resources rather than individual citizens. As a result, business groups maximise their involvement in EU decision-making and their influence on EU policy outcomes by seeking to limit the number of participants consulted or by soliciting multiple consultations. Therefore, while OCs in principle offer equal chances to participate, actual participation is imbalanced and consultations do not come close to ensuring equal representation of interests in practice.83 Industry interests still dominate the consultation processes, emphasising the opinions of organised business groups over those of individual citizens, who in many cases are likely to be those most affected by proposed EU legislation. Despite the adoption of the Commission’s guidelines, corporations and financial lobbies can significantly shape EU legislation. Ironically, since the consultation process became more developed, and access to it became easier so as to ensure equal interest representation, citizens have had less influence, while industry and business groups have controlled the discussions.84 The main reason for this is that although the consultation doors have opened, civil society organisations do not have sufficient resources to step up their participation, while businesses and their groups do. Moreover, because policy proposals differ as to their complexity, societal effects, and the distribution of costs and benefits, and because the EU is vital in business-related policy areas, corporate entities have strong incentives to engage, while large parts of the public are usually unconcerned. Hence, the main conflict is often between corporate interests and those of civil society.85

81 European Commission, ‘EU Guidance for the Progressive Resumption of Tourism Services and for Health Protocols in Hospitality Establishments: COVID-19’ COM (2020) 169, 15 May 2020, 4–5. 82 Steffek and Ferretti (n 42) 46. 83 I de Jesús Butler, ‘Non-governmental Organisation Participation in the EU Law-Making Process: The Example of Social Non-governmental Organisations at the Commission, Parliament and Council’ (2008) 14 European Law Journal 558, 573–74. 84 Rasmussen and Carroll (n 5) 56. 85 Bunea (n 22) 1590–91.

Is There Anybody Out There?  211 Considering that citizen involvement in consultations remains limited, the Commission’s approach and practices appear deficient in terms of direct democratic participation. The EU has committed itself to involving individuals as openly and inclusively as possible in order to give a voice to all those who are potentially affected by its rules. Nonetheless, the Commission itself often selects the contributors to its consultations, and this discretion offers an easy way to avoid critical input in EU policy-making. This trend corresponds to the neo-pluralistic view that specific economic groups are likely to ‘capture’ the Commission through restricted sessions, thereby excluding civil society and reorienting pre-legislative consultations towards more technical issues.86 Alongside this, from a reputational perspective, one might expect a hierarchy to arise among the different consultation formats. In this sense, OCs serve the Commission’s democratic and procedural reputation, but have little impact on the actual drafting of proposals. On the contrary, restricted fora are important for the Commission’s technical and performative reputation, but their use raises doubts about their added value in terms of transparency and democratic participation. In sum, what was advertised as an instrument for integrating the public at large is in fact applied as a tool for gaining expert knowledge highly dominated by business interest representatives. Thus, it seems that the main objective of EU consultative tools is not to introduce participatory channels that give citizens a lasting voice in the decision-making process, but to provide a long-standing channel of communication with large corporations.87 So far, there have been no binding declarations by the Commission about more institutionalised and politically more influential ways to enhance citizens’ direct involvement in EU policy-making. The approach adopted by the Commission shows that the Better Regulation Agenda actually makes regulatory choices and expresses political preferences by hiding them behind the use of evidence-based legislation. In this way, consultations risk becoming a lobbying instrument which EU institutions can use in order to justify legislative action in favour of stakeholders.88 A final aspect questioning the success of pre-legislative consultations as a tool to democratise EU decision-making concerns transparency, which is regularly mentioned in EU documents as a means to increase democratic legitimacy.89 Even though Commission webpages provide links to each DG consultation website and a list of recent public consultations, it was only in 2016, with the enactment

86 M van Schendelen, The Art of Lobbying the EU: More Machiavelli in Brussels (Amsterdam, Amsterdam University Press, 2013) 55–57; A Dür et al, ‘Interest Group Success in the European Union: When (and Why) Does Business Lose?’ (2015) 48 Comparative Political Studies 951, 978–79. 87 R Lofstedt, ‘The “Plateau‐ing” of the European Better Regulation Agenda: An Analysis of Activities Carried out by the Barroso Commission’ (2007) 10 Journal of Risk Research 423, 428. 88 K Oppermann and C de Vries, ‘Analysing Issue Salience in International Politics: Theoretical Foundations and Methodological Approaches’ in K Oppermann and H Viehrig (eds), Issue Salience in International Politics (Abingdon, Routledge, 2011) 19–20. 89 D Rimkutė, ‘Building Organizational Reputation in the European Regulatory State: An Analysis of EU Agencies’ Communications’ (2020) 33 Governance 385, 397.

212  Paolo Zicchittu of Juncker’s Better Regulation Agenda, that the Commission made it clear that these publicly available consultations represent only a selection of consultations addressed to the broader public, without mentioning the selection criteria.90 With the publishing of contributions and reports being the exception rather than the rule, the Commission’s record on this has been rather weak. Although consultations thus formally enable interested parties to provide qualitative input and enhance their participation, the story of citizens’ involvement remains one of very confined success, because inclusion is not practically ensured and because it remains unclear who contributes to the process, and how and why arguments are accepted or dismissed.91 Furthermore, although public consultation platforms are fundamental to improving the transparency of EU decision-making, the wide-ranging collection of stakeholder opinions could harm the institutional balance between the co-legislators and exceed the Commission’s mandate in the legislative procedure. Indeed, the Commission has had more success in its bargaining with the Council and the EP when it consults widely. The Parliament feels threatened by the Commission’s consultation agenda and has even adopted resolutions stressing that such informal consultations must never replace the EP’s own decisions.92 In summary, the results are mixed regarding the Commission’s aim of improving EU democratic legitimacy through equal interest representation in the application of consultative participatory instruments. On the positive side, each EU policy activity has attracted different actors and generated a specific community. Among the consultation participants, one finds very different actors, ranging from businesses to a wide spectrum of public authorities, general interest associations and citizens.93 On the negative side, traditional participation patterns favouring corporate interest representatives are well established. Therefore, although EU public consultation processes in principle offer equal access and a wide range of groups participate in them, equal interest representation and inclusiveness are far from being a mission accomplished.94

90 A Bunea, ‘Understanding the European Commission’s Use of Politicisation in the Negotiation of Interinstitutional Agreements: The Role of Consultations and Issue Framing’ (2020) 27 Journal of European Public Policy 439; MK Rasmussen, ‘The Battle for Influence: The Politics of Business Lobbying in the European Parliament’ (2015) 53 Journal of Common Market Studies 365, 379–80. 91 B Kohler-Koch and V Buth, ‘Civil Society in EU Governance: Lobby Groups Like Any Other?’ (2009) 108 TranState Working Papers 21. 92 S Ranchordas, ‘Consultations, Citizen Narratives and Evidence-Based Regulation: The Strange Case of the Consultation on the Collaborative Economy’ (2017) 19 European Journal of Legal Reform 52, 67–68; AW Chalmers, ‘Unity and Conflict: Explaining Financial Industry Lobbying Success in European Union Public Consultations’ (2020) 14 Regulation and Governance 391, 409–10. 93 Bunea and Thomson (n 8) 527. 94 T Hüller, ‘Backdoor Neo-corporatism? The European Commission’s Responsiveness in Online Consultations’, paper presented at the ECPR General Conference in Bordeaux from 4–7 September 2013, 13–14.

11 The European Citizens’ Initiative Towards a User-Friendly, Participatory and Powerful Agenda Initiative for the EU MARIO MENDEZ

I. Introduction A democratic deficit critique relating to the European Union (EU) accelerated in the wake of the very Treaty introducing EU citizenship.1 The troubled Maastricht Treaty ratification saga included a referendum rejection in Ireland and narrow approval in a referendum in France.2 This signalled the end of the ‘permissive consensus’ on European integration as public opinion on the EU had begun shifting significantly.3 And while each Treaty revision expanded the powers of the European Parliament (EP), electoral turnout declined. No shortage of proposals to improve the democratic functioning of the EU began to emerge, including direct democratic innovations.4 Agenda initiatives are one such tool that allows citizens to request legislative action following a signature-gathering exercise. This device was first included in the Austrian Constitution (1920) and has spread at the national level in Europe and Latin America in recent decades.5 They offer a bottom-up channel for direct citizen participation and potentially increased policy responsiveness to the citizenry.

1 On the democratic deficit, see S Hix, What’s Wrong with the European Union and How to Fix it (Cambridge, Polity Press, 2008) ch 5. 2 On EU referendums, see F Mendez et al, Referendums and the European Union: A Comparative Inquiry (Cambridge, Cambridge University Press, 2014). 3 See S Hix and B Hoyland, The Political System of the European Union, 3rd edn (Basingstoke, Palgrave Macmillan, 2011) 107–10. 4 See, eg, JHH Weiler et al, Certain Rectangular Problems of European Integration (Strasbourg, European Parliament, 1996) 27–28. 5 See F Mendez and M Mendez, ‘Agenda Initiatives in Comparative Context’ in M Qvortrup and D Vancic (eds), Complementary Democracy: The Art of Deliberative Listening (Berlin, De Gruyter, 2022).

214  Mario Mendez Austria and Italy, two Member States in which agenda initiatives had long existed, formally proposed an EU agenda initiative at the Treaty of Amsterdam negotiations, but it was not taken further.6 The EP elections that followed in 1999 saw turnout falling below 50% for the first time, but no democratic innovations were forthcoming in the Treaty of Nice. An annexed declaration called for a debate on the future of the EU and recognised ‘the need to improve … the democratic legitimacy and transparency of the Union and its institutions, in order to bring them closer to the citizens’. This was followed by another referendum blow as the Irish rejected the Treaty of Nice in June 2001, before approving it in a second referendum. Both the first Irish Nice Treaty referendum and declining turnout in EP elections were highlighted in the Commission’s Governance White Paper of 2001 that brought a renewed emphasis to civil society participation in European governance.7 Later that year, the Laeken Declaration provided for the convening of a Convention on the Future of Europe (Convention), underscoring that the Union has ‘to bring citizens … closer to the … European institutions’ and ‘become more democratic’. The Convention process thus offered propitious circumstances for democratic innovation. However, an EU agenda initiative was only a very late inclusion in the draft Constitutional Treaty. The citizens’ initiative, as it was labelled, was the only innovation in a new article headed ‘The Principle of Participatory Democracy’, which essentially otherwise codified the existing civil society dialogue and consultation practices.8 The downward trend in voter turnout continued in the June 2004 EP e­ lections (45%), and citizens dealt the EU a further blow when the Constitutional Treaty was rejected in referendums in France and the Netherlands in 2005. The ‘permissive consensus’ era of European integration was long gone. An intergovernmental conference was tasked with amending the existing Treaties with specific instructions to retain the provisions on representative democracy, participatory democracy and the citizens’ initiative. The citizens’ initiative was retained in a title of the Lisbon Treaty renamed ‘Provisions on Democratic Principles’ (Articles 9–12 of the Treaty on European Union (TEU)).9 The Lisbon Treaty was also the subject of a referendum rejection in the only Member State to hold one – Ireland. But a second Irish referendum saw the Lisbon Treaty enter into force in 2009, and the EU ­legislature was tasked (Article 24 of the Treaty on the Functioning of the European Union (TFEU)) with implementing the democratic innovation of the European Citizens’ Initiative (ECI). 6 See F Sipala, ‘La Vie Démocratique de l’Union’ in G Amato et al (eds), Genesis and Destiny of the European Constitution (Brussels, Bruylant, 2007) 367. 7 European Commission, ‘European Governance: A White Paper’ COM (2001) 428, 25 July 2001. See generally KA Armstrong, ‘Rediscovering Civil Society: The European Union and the White Paper on Governance’ (2002) 8 European Law Journal 102. 8 See J Mendes, ‘Participation and the Role of the Law after Lisbon: A Legal View on Article 11 TEU’ (2011) 48 CML Rev 1849, 1854–55. 9 A reference to participatory democracy was retained in Article 10(3) TEU.

The European Citizens’ Initiative  215 This chapter assesses the ECI as follows. Section II explores its initial design along with some of the unrealistic expectations surrounding the instrument. Section III explores the ECI in practice. It challenges the narrative that the Commission stifled the ECI and offers a more generous account of the ECI to date than has generally been apparent in legal scholarship. Section IV focuses on the revision agenda that culminated in a new ECI Regulation. Section V then concludes that this contributes to a more user-friendly, participatory and powerful agenda initiative.

II.  Designing the ECI and Unrealistic Expectations This section is divided into three subsections that explore respectively the Treaty-enshrined and original legislative design of the ECI, and the unrealistic expectations that the instrument has generated.

A.  The Treaty-Enshrined Design of the ECI Some crucial ECI design features were included in Article 11(4) TEU: 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.

This single sentence made six fundamental design choices and, as they are Treaty-enshrined, they determine the key contours of this EU-level democratic innovation. First, unlike national-level variants, the request for legislative action is not made to a Parliament, but to the Commission, thus recognising its near-exclusive right of legislative initiative. The ECI accords EU citizens a right to request action which the Council has always possessed (Article 241 TFEU) and which the EP has had since the Maastricht Treaty (Article 225 TFEU). Second, it is a tool for EU citizens, as the reference to citizens indicates and as further attested to by the reference to nationals of Member States. This is in contrast to, for example, the bottom-up mechanism of petitions that is not so confined (Article 227 TFEU).10 Third, it sets the minimum number of citizens required to invite action, namely one million. This symbolic figure is comparatively low, representing under 0.2% of the EU population when the Lisbon Treaty entered into force. Where agenda



10 See

more in ch 4 by Henri de Waele in this volume.

216  Mario Mendez initiatives existed in EU Member States, several had thresholds over 1%; under 0.5% was rare and only Italy had a lower requirement than the ECI.11 Enlargement provides a greater pool of citizens, as occurred when Croatia joined the EU in 2013. Conversely, EU withdrawal reduces that pool and the departure of the second most populous Member State (the UK) in January 2020 pushed the threshold to over 0.2% of the EU’s population. Fourth, it stipulates a numerically unquantified threshold, to be ­determined by the EU legislature, that they be from ‘a significant number of Member States’. A territorially-based requirement was understandable given that the EU is a p ­ olitical entity composed of sovereign states and a transnational dynamic is part of the raison d’etre of the ECI. Without a threshold, citizens from even mid-sized Member States could theoretically meet the one million threshold alone, while the smallest Member States do not even have populations of one million. A territorially-based requirement is also not without precedent in national agenda initiatives.12 Fifth, the language of ‘inviting the Commission’ left no doubt that it did not formally alter the Commission’s near-exclusive right of legislative initiative (Article 17(2) TEU). To require otherwise would have given citizens a power that the EP and the Council do not formally have in a constitutional system that, since the Lisbon Treaty, expressly underscores its representative democracy foundations (Article 10(1) TEU). Sixth, the natural reading of ‘a legal act … is required for the purposes of implementing the Treaties’ would render Treaty revision proposals impermissible.13 Implementing the Treaties and amending the Treaties are distinct notions. The language of ‘implementing the Treaties’ expressly borrows the language used in the EP’s right to request a Commission proposal (Article 225 TFEU). The latter provision was never treated as extending to requesting proposals for Treaty revision, the EP expressly gaining this power with the Lisbon Treaty.14 In addition, a Treaty revision is not a ‘legal act of the Union’, as required by Article 11(4) TEU, but a new Treaty needing ratification by Member States.15 In short, the argument that Treaty revision is excluded from the ECI remit is overwhelming. Accordingly, what might be within the scope of a national agenda initiative, as it falls within national legislative competence, may not be within the EU’s legislative competence because it has limited attributed powers. Furthermore, the policy density of the EU’s Treaty text also means that much remains off limits to the ECI.

11 V Cuesta López, ‘A Comparative Approach to the Regulation on the European Citizens’ Initiative’ (2012) 13 Perspectives on European Politics and Society 257, 260–61. 12 ibid 260–62. 13 Contrast M Dougan, ‘What are We to Make of the Citizens’ Initiative?’ (2011) 48 CML Rev 1807. 14 On Article 225 TFEU, see R Corbett et al, The European Parliament, 9th edn (London, John Harper, 2016). 15 See on this point N Athanasiadou, ‘The European Citizens’ Initiative: Lost in Admissibility?’ (2019) 26 Maastricht Journal of European and Comparative Law 251, 260–61.

The European Citizens’ Initiative  217

B.  Legislative Design of the ECI The imperative of realising democratic gains was such that the EP had already called in May 2009 for a legislative proposal on the ECI without delay after the entry into force of the Lisbon Treaty;16 this when a second Irish referendum had yet to be held and with the Czech Republic still holding out on ratification. Irish ratification followed a successful referendum, as did the remaining Czech ratification, and the Commission’s ECI Green Paper emerged before the Lisbon Treaty entered into force in December 2009.17 The Commission affirmed that ‘European citizens should benefit from this new right as quickly as possible’ and the ECI Regulation was adopted only 14 months later.18 A number of core choices made by that Regulation are highlighted below. First, a committee comprised of at least seven EU citizens resident in at least seven different Member States would be required to organise an initiative. This was introduced at the behest of the EP. While making it harder to launch an initiative, it helps foster political debate across borders and contributes to creating a network for pursuing statements across Member States. The committee is responsible for preparing and submitting the initiative. The Regulation required the title, the subject matter, the description of objectives and the Treaty provisions that are considered to be relevant. The Green Paper had rightly highlighted that the requirement for a citizens’ initiative to take the form of a draft legal act, as mandated in some EU Member States, was ‘unnecessarily restrictive and burdensome’.19 Second, an ex ante registration test was imposed prior to signature gathering. This requirement had its origins in the EP’s May 2009 Resolution, the Commission Green Paper having been against an ex ante admissibility test. The logic is to avoid frustrating citizens by initiatives being found inadmissible after signature gathering has begun. The opposing concern is foreclosing transnational debate on issues of importance to EU citizens. The registration test required four conditions to be met: that the committee be appropriately formed; that the initiative ‘not manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act … for the purpose of implementing the Treaties’; nor be ‘manifestly abusive, frivolous or vexatious’; nor ‘manifestly contrary to the values of the Union’.20

16 EP, Resolution of 7 May 2009 Requesting the Commission to Submit a Proposal for a Regulation of the European Parliament and of the Council on the Implementation of the Citizens’ Initiative, Doc No P6_TA(2009)0389, 7 May 2009. 17 European Commission, ‘Green Paper on a European Citizens’ Initiative’ COM (2009) 622, 11 November 2009. 18 Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative [2011] OJ L65/1. 19 Commission (n 17) 7. 20 Article 4(2)(a)–(d).

218  Mario Mendez Third, the ‘significant number of Member States’ was determined as being one quarter, hence also the requirement that the committee have at least seven EU citizens resident in at least seven different Member States. While this was in line with the EP’s Resolution, the Commission had considered this too low to guarantee that the EU’s interest is adequately reflected, having instead proposed a one third requirement. Fourth, the requirement for a minimum number of citizens from each of the minimum number of Member States was introduced as proposed by the EP. The model chosen replicated the degressive proportionality used for the EP. Over 0.2% of EU citizens would be required from some smaller Member States to count as one of the seven Member States, but 0.2% or less would be required from the vast majority, and the largest four Member States could achieve their threshold on less than 0.1%. The logic was to ensure a meaningful level of EU-wide support rather than making it purely nominal in some of the requisite Member States, while also not making it excessively difficult for the larger Member States. Fifth, statements of support could be collected electronically, a possibility raised by the Green Paper which respondents supported almost unanimously. This radically facilitates signature collection and should be an expected feature of a modern agenda initiative, as with the contemporaneously introduced Finnish citizens’ initiative.21 Sixth, as the EP proposed, the minimum age for supporting initiatives was set at the voting age for EP elections (18 in all Member States other than Austria, where it was 16). This was a missed opportunity, especially given the Laeken emphasis on bringing ‘the young … closer to the … European institutions’. A minimum age of 16 would have opened up this democratic innovation to millions of European youth and facilitated achieving the signature thresholds. There is no inherent reason for tying the age to elections, even if this is the comparative norm, for this is ultimately not a vote determining electoral representation. Seventh, there would be a 12-month period for signature collection. This is longer than any directly comparable time limit for an agenda initiative in EU Member States, excluding systems without a time limit, such as Portugal. The Commission selected this timeframe to reflect ‘the complexity of working throughout the European Union’; however, that same logic warranted a longer period. It is shorter than the 18-month period for the related instrument of a citizen-initiated referendum in Switzerland, the most experienced user of direct democracy. Moreover, the EP’s 12-month proposal would have begun on the first day of the third month after registration, whereas the Regulation saw the 12-month clock begin from registration. Eighth, obligations were imposed relating to initiatives meeting the requisite thresholds. The Commission would meet the organisers and they could present their initiative at a public hearing at the EP. The Commission then examines the

21 For

more on this, see ch 12 by Jasmin Hiry-Lesch in this volume.

The European Citizens’ Initiative  219 initiative and sets out its legal and political conclusions, including any actions that it would take and the reasons for not taking action. This meeting and public hearing were invaluable additions at the behest of the EP, and meant that the ECI went further than some domestic agenda initiatives. Ninth, no uniformity was imposed as to data collection from signatories. Member States could require personal ID numbers – whether from a national ID card or a passport. The European Data Protection Supervisor (EDPS) had recommended dropping the ID requirement.22 The more data required, the less likely citizens will support an ECI. In relation to personal data, the organisers (and the competent national authorities) were ‘data controllers’ for the purposes of the Data Protection Directive and had a range of obligations imposed upon them. Indeed, organisers were expressly stated to be personally liable for any damage that they cause in organizing an initiative, with an additional provision on penalties for organisers infringing the Regulation. Finally, no public funding was provided towards costs incurred in preparing an initiative and sustaining a campaign of signature gathering in a multilingual union. Public funding existed with, for example, the Spanish agenda initiative.23 The Green Paper stated that none was foreseen ‘in the interest of preserving the independence and citizen-driven nature of initiatives’. The Regulation also required a Commission-maintained online register of initiatives, while stipulating that organisers can submit the initiative in other official EU languages for this register, but that translation shall be the organisers’ responsibility. Given the translating resources at the multilingual EU’s disposal, and the obvious benefits to signature gathering in all official EU languages, this absence of a translation obligation, or funding to that end, was a striking omission.

C.  Unrealistic Expectations Bold and often hyperbolic claims about the contribution that the ECI could make to EU democracy were commonplace from when it was proposed to when the ECI Regulation emerged. The Convention proposal underscored that its effect was ‘to bring Europe closer to the people, as Laeken recommended’ and represented ‘a large step in the democratisation of the Union’.24 Peters, writing shortly after the Convention, suggested that the ECI could become an important symbol of genuine bottom-up democracy and fill in the vacuum left by the absence of effective popular control of European government (consisting of the Commission and the Council).25 Eriksen and Fossum referred to it as being among the most important 22 EDPS, Opinion on the proposal for a Regulation of the European Parliament and of the Council on the citizens’ initiative [2010] OJ C323/1. 23 See Cuesta López (n 11). 24 European Convention, Doc No CONV 724/03, 26 May 2003. 25 A Peters, ‘European Democracy after the 2003 Convention’ (2004) 41 CML Rev 37, 45 and 68.

220  Mario Mendez substantive changes proposed by the draft Constitutional Treaty.26 Warleigh-Lack even suggested that the ECI ‘could have a fundamental impact on the essence of the EU itself ’.27 The May 2009 EP Resolution highlighted that ‘citizens will thus play a direct role in the exercise of the European Union’s sovereign power’.28 The Green Paper emphasised that the ECI would ‘add a new dimension to European democracy … helping to build a genuine European public space’. The legislative proposal that followed referred to it as ‘a significant step forward in the democratic life of the Union’. Upon political agreement on the Regulation, the EP President referred to a ‘milestone in the development of European democracy’. Scholarly commentary in the immediate aftermath of the Regulation regularly included bold claims, such as that the ECI had the ‘potential for bringing about a fundamental change in the way democracy works in the European institutions’.29 Such claims ultimately placed unrealistic expectations on what the i­ nstrument could achieve. Agenda initiatives were, and continue to be, neglected in ­scholarship. But the little we did know suggested that they had limited impact and infrequently generated legislative output.30 They had certainly not hitherto proved to be the polity-transforming democratic innovations that some commentary surrounding its EU introduction might have led us to assume. When we add to what was already known about agenda initiatives what we have learnt about the design of the ECI, the more unrealistic the bold discourse surrounding the ECI’s introduction becomes. Even getting an initiative registered required navigating the EU’s complex system of competences and had a transnational prerequisite of a committee composed of EU citizens residing in different Member States who accept personal liability for any damages caused in campaign organisation. The committee then has the herculean task of achieving over one million supporters,31 within one year, across an array of states in a multilingual political system to which its citizens showed growing apathy and who would generally be unaware of the new instrument. And all this with no public funding, or even translation support. The legally outlined reward for this mammoth undertaking is a Commission meeting, an EP hearing, and the Commission examining

26 EO Eriksen and JE Fossum, ‘Europe in Search of Legitimacy: Strategies of Legitimation Assessed’ (2004) 25 International Political Science Review 435, 449. 27 A Warleigh-Lack, ‘On the Path to Legitimacy? The EU Citizens Initiative Right from a Critical Deliberativist Perspective’ in C Ruzza and V Della Sala (eds), Governance and Civil Society in the European Union (Manchester, Manchester University Press, 2007) 65. 28 See n 16 above. 29 M Conrad, ‘The European Citizens’ Initiative: Transnational Democracy in the EU at Last?’ (2011) 7 Icelandic Review of Politics and Administration 5, 19. 30 See V Cuesta López, Participación Directa e Iniciativa Legislativa del Ciudadano en Democracia Constitucional (Pamplona, Civitas Thomson Reuters, 2008). See a more positive perspective in M Qvortrup, ‘The Legislative Initiative: A Comparative Analysis of the Domestic Experiences in EU Countries’ in M Dougan et al (eds), Empowerment and Disempowerment of the European Citizen (Oxford, Hart Publishing, 2012). 31 This is to avoid falling short of one million when signature verification took place.

The European Citizens’ Initiative  221 the initiative. Legislative proposals were certainly not guaranteed, much less an actual legislative outcome. Put in such terms, expectations clearly needed managing, for popular discontent was an obvious risk when the ECI could not live up to the unrealistic democratic rhetoric accompanying it. Indeed, its very design meant that, unlike supporting an initiative, getting an initiative registered was always likely to be out of reach for ordinary EU citizens, and meeting the signature thresholds would be especially unlikely, absent considerable logistical and financial backing from organisations.32 This is not to downplay a valuable role for the ECI as part of the EU’s democratic toolkit for citizen engagement, particularly as a bottom-up channel for citizen participation that can generate increased policy responsiveness. But any such gains would take time to materialise and the path ahead for this hastily designed bottom-up participatory democracy tool would not be without difficulties.

III.  The ECI in Practice: Expectations Meet Reality By November 2021, over 100 initiatives had been proposed (Table 11.1). Out of the 85 registered, six reached the thresholds, collection was ongoing with 12 and was yet to start for another three. Two awaited signature verification and were accordingly potentially imminently to be announced as the seventh and eighth initiatives to meet the thresholds. Table 11.1  ECI outcomes (April 2012–November 2021) Status

Number

%

Registered

85

79

Refused registration

22

21

107

100

Total REGISTERED INITIATIVES Met 1 million threshold

85 6 (all answered)

7

Collection ongoing

12

14

Insufficient support

39

46

Withdrawn

19

22

Collection closed

4

5

Collection not started

3

4

Verification ongoing

2

2

Source: Author’s own elaboration (based on the ECI official register).



32 Dougan

(n 13) 1833 suggested that the ECI’s design de facto limited it to organised civil society.

222  Mario Mendez Take-up was initially considerable, with 43 proposed initiatives between 2012 (27) and 2013 (16). The number then dropped significantly, less than half (18) being proposed over a longer timeframe (2014–16), before picking up again. A frequently posited explanation, or partial explanation, for the reduction was an allegedly over-zealous application of the registration test. Already by 2014, 20 proposed initiatives, some 40% to that point, were refused registration on the grounds of falling manifestly outside the Commission’s power to submit a proposal for a legal act for implementing the Treaties. This generated much criticism by scholars, civil society organisations, ECI organisers and even other EU institutions. However, actual analysis of the registration refusals, as opposed to crude reliance on numbers alone,33 was rarely undertaken.34 An analysis in 2017 concluded that the vast majority flowed directly from the ECI’s design.35 The Commission cannot register initiatives that manifestly fall outside its powers to propose legal acts. Accordingly, numerous initiatives were obviously non-starters, whether proposing abolishing the EP, holding EU referendums (twice), singing the European anthem in Esperanto, providing for self-determination human rights or stopping Brexit. Once it was accepted that Treaty revision is off limits,36 the Commission had to reject many early initiatives. Legal challenges to registration refusals have been a frequent occurrence.37 Two successful challenges – the Minority SafePack and Efler rulings – have received considerable attention and highlighted the ECI Regulation recital that the TEU reinforces EU citizenship and further enhances the EU’s democratic functioning by providing that every citizen has the right to participate in its democratic life by means of an ECI.38 The Minority SafePack ruling found that the Commission had breached its duty to state reasons when refusing registration of an initiative concerning the protection of national and linguistic minorities that partially fell inside and partially outside its powers. The ruling had two significant consequences: first, it encouraged adequately reasoned registration refusals, making it easier for organisers to successfully resubmit refused initiatives; and, second, the 33 See the assertion that nearly half the initiatives had been declared legally admissible in C Berg and P Glogowski, ‘Heavy Stones in the Road: The ECI in Practice’ in M Conrad et al (eds), Bridging the Gap? Opportunities and Constraints of the European Citizens’ Initiative (Baden-Baden, Nomos, 2016) 199, 210 and 213. 34 However, see J Organ, ‘Decommissioning Direct Democracy? A Critical Analysis of Commission Decision-Making on the Legal Admissibility of European Citizens Initiative Proposals’ (2014) 10 European Constitutional Law Review 422. 35 See F Mendez and M Mendez, ‘The Promise and Perils of Direct Democracy for the European Union’ (2017) 19 Cambridge Yearbook of European Legal Studies 48, 71–75. 36 As was outlined in the FAQ section of the ECI register and first used to justify a registration refusal in January 2013 (‘Self-Determination’ initiative). 37 Four were unsuccessful: Case C-589/15 P, Anagnostakis v Commission, ECLI:EU:C:2017:663; Case T-44/14, Constantini v Commission, ECLI:EU:T:2016:223; Case C-336-17 HB v Commission, ECLI:EU:C:2018:74; Case T-611/19, Iniciativa ciudadana v Commission, ECLI:EU:T:2021:340. 38 Case T-646/13 Minority SafePack v Commission ECLI:EU:T:2017:59; Case T-754/14, Efler v Commission, ECLI:EU:T:2017:323. Two additional challenges were successful: Case T-789/19, Moerenhout v Commission, ECLI:EU:T:2021:260; Case C-420/16 P, Izsák and Dabis v Commission, ECLI:EU:C:2019:177.

The European Citizens’ Initiative  223 Commission reconsidered its interpretation of the ECI Regulation as precluding partial registration, and this more citizen-friendly reading has prevailed since the ruling. The Commission proceeded to register the ‘Minority SafePack’ initiative with the exception of two of the 11 proposed acts considered to be outside its powers, rendering it all the more surprising that it had not thought fit to register the overwhelming majority of proposed acts in the first place. The Efler ruling was the second successful challenge. The ‘Stop TTIP’ initiative had proposed repealing the negotiating mandate for the Transatlantic Trade and Investment Partnership (TTIP) with the US and not concluding the Comprehensive Economic and Trade Agreement (CETA) with Canada. Prior to the ruling, the organisers ran their own unofficial campaign and collected 3.3 million signatures using the frame of Commission rejection to attract signatures.39 The General Court held that initiatives could call for negotiating mandates for international agreements to be repealed and for agreements not to be concluded, thus expanding the ECI’s remit in EU international relations.40 This registration refusal has been presented as an unsustainable and politically motivated decision, bolstering the critical narrative of the Commission.41 An alternative reading is that the Court used the principle of democracy to extend the wording of primary EU law (Article 11(4) TEU) to give citizens a say in ongoing actions by EU institutions,42 thus suggesting simply a different and not necessarily restrictive legal interpretation by the Commission. The outcome concerning the specific initiative was that the Commission registered it only with respect to TTIP – though negotiations were already frozen – as CETA had already been signed in 2016. A second factor allegedly contributing to a reduction in initiatives was the follow-up to the first three initiatives meeting the thresholds. All were registered in 2012. The organisers were received by the Commission, followed by public hearings with representatives from the EP, the Commission, the Committee of the Regions (CoR), and the European Economic and Social Committee (EESC). The Commission communications that followed will each be discussed in turn.43 The response to the ‘Right2Water’ initiative – concerned with universal access to water and sanitation, and exempting water supply and management of water resources from internal market rules – saw only one proposed action relating to potential legislative action.44 Forthright criticism from the EP called on the 39 See J Greenwood, ‘The European Citizens’ Initiative: Bringing the EU Closer to its Citizens?’ (2019) 17 Comparative European Politics 940. 40 The registration refusal recognised that initiatives could request the signature and conclusion of international agreements. 41 See J Organ, ‘EU Citizen Participation, Openness and the European Citizens’ Initiative: The TTIP Legacy’ (2017) 54 CML Rev 1713, 1742–44 and 1746. 42 Athanasiadou (n 15) 258–59. 43 See a detailed discussion in A Karatzia, ‘The European Citizens’ Initiative and the EU Institutional Balance: On Realism and the Possibilities of Affecting EU Law Making’ (2017) 54 CML Rev 177. 44 This concerned the launching of a public consultation on the Drinking Water Directive; see European Commission, ‘Communication on the European Citizens’ Initiative “Water and Sanitation are a Human Right! Water is a Public Good, not a Commodity!”’ COM (2014) 177, 19 March 2014.

224  Mario Mendez Commission to propose legislation.45 The Commission’s response repeatedly underscored that it had ‘responded positively to the requests of the initiative’.46 The Commission’s communication also noted that its earlier proposal to exclude drinking water and certain waste water treatment from new rules on concession contracts responded to concerns raised by the ‘Right2Water’ initiative, thus suggesting legislative impact during the signature-gathering stage.47 The Commission’s 19-page communication on the ‘One of Us’ initiative directly rejected the proposed legislative changes on embryonic stem cell research, while emphasising that the Horizon 2020 provisions on human embryonic stem cell research had only recently been agreed in a democratic process by the EP and the Council.48 The European Court of Justice confirmed that the Commission is not obliged to pursue any of the proposals when it dismissed a challenge by the initiative organisers.49 This was predictable given that the Treaty language on the ECI appeared to expressly preserve the near-exclusive right of legislative initiative by referring to ‘inviting the European Commission’, language reiterated in the ECI Regulation, which also underscores that the Commission’s communication ‘is to set out the action that it intends to take, if any, and its reasons for taking or not taking action’. The Commission responded to the ‘Stop Vivisection’ initiative with proposed actions to accelerate the development and uptake of non-animal approaches in research and testing (including organising a scientific conference).50 But no proposals involved legislative action and the organisers’ complaint to the European Ombudsman was unsuccessful.51 When this initial absence of legislative follow-up was combined with the seemingly high registration refusal rate, it is easy to see how a narrative of the Commission stifling the ECI took hold. This was accentuated once the Minority SafePack and Stop TTIP rulings emerged, giving credence to the notion that the registration test was used to thwart citizen participation. The criticism was

45 EP, Resolution of 8 September 2015 on the follow-up to the European Citizens’ Initiative Right2Water, Doc No P8_TA(2015)0294, 8 September 2015. The EESC did the same on 15 October 2014 by means of an Opinion on the Commission’s Communication on the ‘Right2Water’ initiative; see [2015] OJ C12/5. 46 European Commission, Follow-up to the European Parliament resolution on the European Citizens’ Initiative, 2 February 2016. 47 For invaluable coverage of the ‘Right2Water’ initiative, see J van den Berge et al, ‘How the European Citizens’ Initiative “Water and Sanitation is a Human Right!” Changed EU Discourse on Water Services Provision’ (2020) 16 Utrecht Law Review 48. 48 European Commission, ‘Communication on the European Citizens’ Initiative “One of Us”’ COM (2014) 355, 28 May 2014. 49 Case C-418/18 P, Puppinck v Commission, ECLI:EU:C:2019:640. See further ch 12 by Jasmin Hiry-Lesch in this volume. 50 European Commission, ‘Communication on the European Citizens’ Initiative “Stop Vivisection”’ C (2015) 3773, 3 June 2015. 51 Case 1609/2016/JAS. See further N Vogiatzis, ‘Between Discretion and Control: Reflections on the Institutional Position of the Commission within the European Citizens’ Initiative Process’ (2017) 23 European Law Journal 250, 265.

The European Citizens’ Initiative  225 especially marked in legal scholarship, which tended to focus precisely on the registration refusal rate, the court rulings and the lack of legislative proposals. Even into 2018 and 2019, legal scholars were using the language of ‘a failure’,52 or ‘almost a downright failure’.53 This was despite the fact that by then, we had seen an upsurge in initiatives being registered, registration refusals had become a rare occurrence, and legislative follow-up was being promised and beginning to emerge.54 The Commission’s 2016 legislative work programme stated that it would revise the Drinking Water Directive as a follow-up to the ‘Right2Water’ initiative;55 the legislative proposal emerged in February 2018 and was adopted in 2020.56 It was already evident from late 2017 that some legislative action would be forthcoming relating to the fourth initiative meeting the thresholds: ‘Ban Glyphosate’. The Commission responded that there were neither scientific nor legal grounds to justify banning this herbicide.57 However, it committed to a legislative proposal on a secondary aim concerning scientific evaluations in pesticide-approval procedures, and the relevant EU legislation was adopted in June 2019.58 The language of failure, and similarly dismissive language, downplays the fact that the ECI brought together EU citizens across diverse Member States to form committees on scores of occasions. Millions of EU citizens at a rapidly growing rate supported initiatives on diverse topics including agriculture, animal welfare, culture, education, environment, fundamental rights, health, social policy and trade. Where signature thresholds were reached, the organisers were both received by the Commission and had a public hearing at the EP. No legislative action may be the outcome and the focus of criticism, but this privileged deliberative access is not insignificant.59 And where signature thresholds were not met, which was always likely for the overwhelming majority of initiatives, this still fosters the

52 E Longo, ‘The European Citizens’ Initiative: Too Much Democracy for EU Polity?’ (2019) 20 German Law Journal 181, especially 189–90 and 197; O Suárez Antón, ‘Auge y Declive de la Iniciativa Ciudadana Europea: ¿Guardar las Apariencias o Garantizar la Participación?’ (2019) Revista Española de Derecho Europeo 69; L Guilloud-Colliat, ‘La Mise en Oeuvre de l’Initiative Citoyenne Européenne: Anatomie d’un Échec’ (2018) 4 Revue du Droit de l’Union Européenne 175. 53 P Leino, ‘Disruptive Democracy: Keeping EU Citizens in a Box’ in I Govaere et al (eds), Critical Reflections on Constitutional Democracy in the European Union (Oxford, Hart Publishing, 2019) 295, 310. 54 Contrast Longo (n 52) 196, arguing that ‘the legislative follow up to the ECI’s has been non-existent’. 55 European Commission, ‘Communication on the Commission Work Programme 2017: Delivering a Europe that Protects, Empowers and Defends’ COM (2016) 710, 25 October 2016, 5. 56 Directive (EU) 2020/2184 of the European Parliament and of the Council of 16 December 2020 on the quality of water intended for human consumption (recast) [2020] OJ L435/1. 57 European Commission, ‘Communication on the European Citizens’ Initiative “Ban Glyphosate and Protect People and the Environment from Toxic Pesticides”’ C (2017) 8414, 12 December 2017. 58 Regulation (EU) 2019/1381 of the European Parliament and of the Council of 20 June 2019 on the transparency and sustainability of the EU risk assessment in the food chain and amending Regulations (EC) No 178/2002, (EC) No 1829/2003, (EC) No 1831/2003, (EC) No 2065/2003, (EC) No 1935/2004, (EC) No 1331/2008, (EC) No 1107/2009, (EU) 2015/2283 and Directive 2001/18/EC [2019] OJ L231/1. 59 See also AG Bobek powerfully articulating the ECI’s value independently of legislative action: Puppinck (n 49).

226  Mario Mendez cross-national deliberative and participatory aims of the ECI, and they can still be examined by the EP’s Petitions Committee.60 Other scholarship, particularly by political scientists, was already drawing on existing ECI practice to offer a richer and more positive assessment prior to the language of ‘failure’ having been deployed by legal scholars. Bouza García and Greenwood showed how the ECI opened up space for political contestation for activists beyond the ‘Brussels bubble’, contributing to creating new groups, pan-European networks and, ultimately, an enlarged European public sphere.61 Borońska-Hryniewiecka and Monaghan offered a broader conceptualisation of the ECI as a dialogue and communication-enhancing tool, an awareness-raising tool, an agenda-setting instrument, a deliberative space as well as a citizenactivating mechanism.62 Greenwood and Tuokko showed how ECI campaigns could continue after the culmination of their official status – whether unregistered, meeting or failing to meet signature thresholds.63 More recently, Greenwood showed how initiatives have broadened the topics under consideration by the EU’s political institutions, introduced contentious politics through initiatives going against the grain of EU public policy, and generated public discussion.64 This alternative, more positive assessment can be reinforced by the two most recent initiatives meeting the thresholds: first, because this meant a 50% increase in initiatives meeting the thresholds (six by 2020); and, second, because the Commission proposed legislative action in relation to one of the initiatives, which along with the existing legislative follow-up makes it harder to dismiss the impact of the ECI. ‘Minority SafePack’ was the fifth initiative to reach the thresholds and called for legal acts to improve the protection of persons belonging to national and linguistic minorities. The sixth was ‘End the Cage Age’, which called for legislation to prohibit cages for specified EU-farmed animals. The organisers met the Commission in 2020, with public hearings in October 2020 and April 2021, respectively.65 The ‘Minority SafePack’ Communication outlined the existing instruments and ­ongoing initiatives in the proposed areas, but concluded that no additional legal acts, or new or further legislative actions or amendments, were necessary.66 60 The EP’s Rules of Procedure were amended in 2012 to expressly stipulate this. The ‘End Ecocide’ initiative had a Petitions Committee hearing in 2015; see Karatzia (n 43) 206. 61 L Bouza García and J Greenwood, ‘What is a Successful ECI?’ in M Conrad et al (eds), Bridging the Gap? Opportunities and Constraints of the European Citizens’ Initiative (Baden-Baden, Nomos, 2016). 62 K Borońska-Hryniewiecka and E Monaghan, ‘The European Citizen Initiative as a Democratic Legitimacy-Enhancing Tool: Toward a Broader Conceptualisation’ in B Pérez de las Heras (ed), Democratic Legitimacy in the European Union and Global Governance (Cham, Palgrave Macmillan, 2017). 63 J Greenwood and K Tuokko, ‘The European Citizens’ Initiative: The Territorial Extension of a European Political Public Sphere?’ (2017) 18 European Politics and Society 166. 64 Greenwood (n 39) above. 65 Delayed due to COVID-19. See the EU legislative response to COVID-19 in the ECI context in ch 12 by Jasmin Hiry-Lesch in this volume. 66 European Commission, ‘Communication on the European Citizens’ Initiative “Minority SafePack – One Million Signatures for Diversity in Europe”’ C (2021) 171, 14 January 2021.

The European Citizens’ Initiative  227 This fuelled ECI criticism and the organisers brought a legal challenge.67 However, this was soon followed by the ‘End the Cage Age’ Communication proposing a legislative proposal by 2023 to phase out and prohibit the use of cages for the specified animals.68 Finally, it is significant that all initiatives reaching the thresholds were supported by established organisations that provided funding: ‘Right2Water’ (the European Federation of Public Service Unions); ‘One of Us’ (pro-life and Catholic associations); ‘Stop Vivisection’ (animal welfare organisations); ‘Ban Glyphosate’ (WeMove.EU, Campact e.V and the Avaaz Foundation); ‘Minority SafePack’ (the Federal Union of European Nationalities); and ‘End the Cage Age’ (Compassion in World Farming). Only ‘Stop Vivisection’ declared funding of less than six figures,69 and the three most recent initiatives all declared over €300,000.70 This reliance on established organisations is indicative of the financial and logistical support required to achieve the thresholds and further attests to the need to recalibrate expectations from the ECI.

IV.  Revising the ECI The registration refusal rate, the lack of legislative follow-up and the marked reduction in proposed initiatives were key factors in explaining why calls for reform emerged so rapidly. This was also encouraged by the ECI Regulation provision entitled ‘Review’, requiring the Commission to report on its operation within three years. The report was adopted in 2015, but did not propose any legislative reforms,71 which led the EP,72 later joined by the CoR and the EESC,73 to call for reform. The Commission responded that it was ‘too early to launch a legislative revision of the ECI Regulation’.74 Ultimately, pressure mounted because, less than a year before its second three-yearly report was due, the Commission announced reform plans. A new ECI Regulation proposal emerged in September 2017 and was adopted in April 2019, coming into force in January 2020.75 A number of the 67 T-158/21 Minority SafePack v Commission. 68 European Commission, ‘Communication on the European Citizens’ Initiative (ECI) “End the Cage Age”’ C (2021) 4747, 30 June 2021. 69 On the ‘Stop Vivisection’ mobilisation strategy, see M Weisskircher, ‘The European Citizens’ Initiative: Mobilization Strategies and Consequences’ (2020) 68 Political Studies 797. 70 ‘Stop Vivisection’ (€23,651); ‘Right2Water’ (€140,000); ‘One of Us’ (€159,219); ‘Ban Glyphosate’ (€328,399); ‘Minority SafePack’ (€348,500); ‘End the Cage Age’ (€392,004). 71 European Commission, ‘Report on the Application of Regulation (EU) No 211/2011 on the Citizens’ Initiative’ COM (2015) 145, 31 March 2015. 72 EP, Resolution of 28 October 2015 on the European Citizens’ Initiative, Doc No P8_TA(2015)0382, 28 October 2015. 73 CoR, Opinion on the European Citizens’ Initiative [2015] OJ C423/1; and EESC, Opinion on the European Citizens’ Initiative (review) (own-initiative opinion) [2016] OJ C389/35. 74 European Commission, ‘Response to text adopted in plenary’ SP(2016) 67, 2 February 2016. 75 Regulation (EU) 2019/788 of the European Parliament and of the Council of 17 April 2019 on the European citizens’ initiative [2019] OJ L130/55.

228  Mario Mendez ‘improvements’ grouped around key phases of the ‘ECI lifecycle’ will be outlined below. To begin with the phase of preparing and launching an initiative, first, the obvious deterrent effect of the open-ended phrasing on the organisers’ personal liability as data controllers in the 2011 Regulation (Article 13) is now restricted to ‘damage caused … by unlawful acts committed intentionally, or with serious negligence’ (Article 5(5)). Organisers can also register as a legal entity under national law, which, besides assisting in dealing with various organisational matters, transfers their personal liability to this legal entity (Article 5(7)). Second, a lengthy new Article 4 entitled ‘Information and Assistance by the Commission and by Member States’ is symbolically significant relative to the predecessor article, which did little more than stipulate that the Commission would establish a point of contact providing information and assistance. This was established in the Commission-run Europe Direct Contact Centre that also informally dealt with registration admissibility questions. This remains in place, although it is not expressly mentioned in the 2019 Regulation, and Member States are now also required to establish one or more contact points providing free information and assistance to organisers. An online collaborative platform providing ‘practical and legal advice, and a discussion forum about the [ECI] for the exchange of information and best practices among citizens, groups of organisers, non-governmental organisations, experts and other institutions and bodies of the Union’ is also required. This platform actually began as a pilot project in 2018 and should prove invaluable in helping get initiatives launched and supported. The Commission is now expressly allocated the responsibility for translating registered initiatives into all EU official languages (Article 4). This omission from the 2011 Regulation was an obvious barrier to public discourse across the EU. It was partly remedied by an EESC commitment to translate initiatives since 2015, excluding initiative annexes that are covered by the new Regulation.76 This is welcome recognition of the practical and financial constraints to preparing and launching initiatives, and campaigning, in a multilingual union. Finally, two core changes relate to registration (Article 6). First, partial registration, which has been Commission practice following the Minority SafePack ruling, is now expressly provided for where the main objectives of the initiative do not manifestly fall outside the Commission’s powers to submit legal act proposals. Second, where the initiative – or parts of it – are considered to fall outside those powers, organisers will be informed of the reasons why that is so within one month of the registration submission. Organisers then have up to two months to: (1) amend the initiative; (2) maintain it; or (3) withdraw it. Where options 1 and 2 are exercised, the Commission then has one month to register, partially register or refuse registration. This will further reduce registration refusals to the benefit 76 The Commission already began translating initiatives in 2018. See European Commission, ‘Report on the Application of Regulation (EU) No 211/2011 on the Citizens’ Initiative’ COM (2018) 157, 28 March 2018, 14.

The European Citizens’ Initiative  229 of the broader democratic aims of the ECI. Crucially, this should help dispel the damaging narrative of the Commission using the registration test to frustrate citizen involvement. Turning to the phase of collecting statements of support, first, Member States can now allow those aged 16 and 17 to support initiatives (Article 2(1)), while the prior requirement was linked to the right to vote in EP elections. However, the Commission had proposed a harmonised age of 16. The benefits of a reduced age are especially compelling in the EU. Democratic participation and satisfaction has been a perennial problem and a minimum age of 16 would open up this democratic innovation to potentially millions of European youth. Second, the extent of personal data required to support an initiative, frequently said to discourage ECI participation, is reduced along with the number of forms used to this end (from 13 down to two) (Article 9). Third, although the 12-month signature-collection period was not extended, which the CoR had called for,77 organisers now have six months’ flexibility following registration before the 12-month period starts (Article 8), essentially to allow sufficient administrative time to prepare campaigns, including IT tools. The effect of the prior Regulation tying the collection period to the registration decision was that the clock would start even before online signature collection could in most cases begin. Fourth, EU citizens can now support an initiative regardless of their place of residence (Article 3(2)), addressing the fact that under the prior regime, some Member States’ rules precluded their nationals residing elsewhere from supporting an ECI. Finally, there is a free Commission-operated central service for online signature collection aimed at reducing burdens on organisers, including data protection liability, and facilitating signature collection, although organisers can use individual collection systems until 2022 (Articles 10–11). In relation to follow-up of initiatives meeting the thresholds, first, organisers now have a three-month period after signatures certification to submit the initiative (Article 13), addressing the absence of any such requirement in the 2011 Regulation.78 Second, the time for the Commission’s response following the public hearing has been doubled from the initially strikingly short three months to six months (Article 15), substantially expanding the time available for public debate, consultation and involvement of relevant stakeholders as well as other EU institutions and bodies. Third, the public hearing is now stipulated to be organised by the EP within three months of the submission of the initiative, and the EP is to ensure a ‘balanced representation of relevant public and private interests’ (Article 14). The first two initiatives meeting the thresholds (‘Right2Water’ and ‘One of Us’) 77 CoR, Opinion on the European Citizens’ Initiative [2018] C 247/62, 13 July 2018 (amendment 5). 78 The ‘Stop Vivisection’ and ‘Minority SafePack’ initiatives were not submitted until well over a year after signature collection closed.

230  Mario Mendez saw no stakeholders or experts other than ECI organisers invited to participate.79 Furthermore, the new Regulation expressly refers to ‘[t]he Council, other institutions and advisory bodies of the Union, the national parliaments and civil society’ being ‘given the opportunity to attend the hearing’. The 2011 Regulation only referenced the possible presence of ‘such other institutions and bodies of the Union as may wish to participate’, and, although the CoR and the EESC were always present, the Council was in practice conspicuously absent. In short, these changes should ensure a more inclusive and participatory public hearing. Fourth, the EP is now expressly tasked with assessing political support for initiatives after the public hearing (Article 14). Its Rules of Procedure (Rule 222) were changed to provide for a plenary debate on an initiative following the public hearing that can culminate in a resolution. This representative democracy mechanism can place political pressure on the Commission to respond positively to organisers’ demands. It was used following the public hearings on the ‘Minority SafePack’ and ‘End the Cage Age’ initiatives culminating in resolutions calling for legislative proposals,80 a call unheeded by the Commission for ‘Minority SafePack’ in contrast to ‘End the Cage Age’. The new Regulation provides that the EP ‘shall assess the measures taken by the Commission as a result of its communication’ (Article 16). The Parliament’s Rules of Procedure were changed (Rule 222) to state that if the Commission fails to submit an appropriate proposal, the committee responsible may organise a hearing with the initiative organisers; that the EP may hold a plenary debate which may culminate in a resolution; and that the EP may also use Article 225 TFEU to call for action. An additional channel for representative democracy to reinforce EU participatory democracy has thus been institutionalised. A final provision to highlight is headed ‘Communication’ (Article 18) and has two dimensions that do not naturally fit into the key ECI lifecycle phases. First, it provides that: ‘The Commission shall raise public awareness about the existence, objectives and functioning of the [ECI] through communication activities and information campaigns, thereby contributing to promoting the active participation of citizens in the political life of the Union.’ Given the widespread lack of knowledge about the EU, it would be unsurprising to find that most EU citizens are still unaware of the ECI. For example, 37% of respondents to the public consultation on the new Regulation were indeed unaware of it.81 Article 18 thus provides welcome legislative recognition of the need to raise public awareness about the ECI and a constant spur for EU action to this end. Second, it deals with a long-voiced 79 External experts were invited for the first time with the ‘Stop Vivisection’ initiative; see Commission (n 76) 10. 80 See for ‘Minority SafePack’: EP, Resolution of 17 December 2020 on the European Citizens’ Initiative ‘Minority SafePack – One Million Signatures for Diversity in Europe’, Doc No P9_TA(2020)0370, 17 December 2020; and for ‘End the Cage Age’: EP, Resolution of 10 June 2021 on the European Citizens’ Initiative ‘End the Cage Age’, Doc No P9_TA(2021)0295, 10 June 2021. 81 European Commission, ‘Staff Working Document Accompanying the Proposal for a Regulation on the European Citizens’ Initiative’ SWD (2017) 294, 13 September 2017, 4.

The European Citizens’ Initiative  231 concern from organisers by expressly providing that they and the Commission can, for communication and information activities regarding an initiative, collect email addresses from the signatories subject to their consent. A brief comment is in order concerning the oft-heard call to include Treaty revision within the remit of the ECI. The CoR proposed amending the Regulation to this effect.82 This is arguably in direct tension with the Treaty text. Even if it were not, expanding the ECI to Treaty revision could easily do more harm than good in terms of democratic satisfaction with the EU. It could generate unrealistic expectations as to its viability as a route to Treaty revision in a constitutional system in which referendums pose a major obstacle.83 The chastening experience with referendums helps explain why the last major Treaty revision – that carried out in Lisbon – entered into force over 12 years ago. To sum up, the 2019 Regulation, combined with changes to the EP Rules of Procedure, makes a wide range of valuable improvements. The cumulative effect makes it easier to organise, register and administer a citizens’ initiative, facilitating signature collection and increasing the breadth of deliberation over initiatives reaching the signature thresholds, while also making concrete additional followup more likely by institutionalising a parliamentary role following public hearings.

V. Conclusion The practice relating to the ECI has generated much critical comment. A balanced assessment should reflect the very nature and design of this new transnational instrument operating in a constitutional system with a complex competences scheme and which, like national variants, includes no obligation to propose legislative action. The ECI was destined to fall short of the unrealistic expectations since its inclusion in the Convention. The Commission found itself with the difficult task of giving effect to the ECI, and its twin gatekeeping role (registration and follow-up) always meant that a narrative of it stifling the instrument was likely. This contestable84 narrative helped drive a reform agenda culminating in the 2019 Regulation creating a more user-friendly, participatory and potentially powerful agenda initiative for the EU. Many labelled the ECI a weak instrument,85 primarily because initiatives do not go directly to a parliament. But even the original ECI Regulation obligations 82 See n 77 above (amendment 2). 83 See this argument in: Mendez and Mendez (n 35). 84 The Ombudsman, for example, recognised ‘the Commission’s great efforts … to implement the ECI Regulation in a citizen-friendly way’; see European Ombudsman, ‘The proper functioning of the European citizens’ initiative (ECI) procedure and the Commission’s role and responsibility in this regard’ Case OI/9/2013/TN, 4 March 2015. 85 Examples include Dougan (n 13); H Dumont and M Fatin-Rouge Stefanini, ‘L’Initiative Citoyenne Européenne à la Lumière du Droit Constitutionnel Comparé’ in E Dubout et al (eds), L’Initiative Citoyenne Européenne (Brussels, Bruylant, 2019); Longo (n 52) 197.

232  Mario Mendez for initiatives meeting the thresholds – a meeting with the Commission, public hearing and formal response from the institutional actor to which the initiative is directed – went further than what is formally required in some national counterparts.86 The new Regulation ensures that representative democracy is brought directly to bear on initiatives meeting the thresholds prior to the formal institutional response. With a plenary debate now guaranteed, the oft-labelled ‘weak’ ECI arguably goes further than even more domestic agenda initiatives. This is no guarantee that a legislative proposal will emerge, even if Article 225 TFEU is invoked, but, again, national variants also offer no such guarantee. More importantly, the alleged formal weakness was always contingent on what political practice made of it. The ECI was arguably likely to become a relatively powerful tool in practice, because it exists in a political system characterised by a profound democratic disconnect with the citizenry and where there is pressure to exploit instruments contributing to addressing this disconnect.87 That the second iteration of the ECI Regulation emerged so soon after the first is arguably evidence of this. Indeed, the ECI is clearly a work in progress, and a four-yearly review is provided for under the 2019 Regulation (Article 25). Since it began operating in April 2012, the ECI has generated much activity and has made a valuable contribution to the EU’s democratic landscape by offering EU citizens a bottom-up mechanism for engaging with the EU and with each other. While the revised ECI legal framework is now demonstrating potential to achieve legislative action, the value of this instrument of citizen participation should most certainly not be so confined.

86 For example, the Italian variant, which imposes no obligation to discuss or vote on initiatives: T Schiller and M Setälä, ‘Comparative Findings’ in M Setälä and T Schiller (eds), Citizens’ Initiatives in Europe (Basingstoke, Palgrave Macmillan, 2012) 243, 250. 87 See Mendez and Mendez (n 35).

12 The European Citizens’ Initiative Caught between Executive Dominance and Judicial Restraint? JASMIN HIRY-LESCH

I. Introduction Launched as a tool of participatory democracy, the European Citizens’ Initiative (ECI) raised great hopes to encourage citizens’ participation and make the European Union (EU) more accessible to citizens. After nine years of operation and a revision of the legislative framework, it seems that the tool was not able to live up to these hopes. This chapter submits that the root cause of this failure lies in the ECI’s initial set-up. This argument is supported by the existing literature, which finds a ‘lack of a common understanding – of what the ECI is or should be, [which in turn] resulted in an incoherent ECI procedure’.1 Most prominently, this incoherence is illustrated by the disproportion between the burdensome organisation of an ECI and its very minimal legislative impact. This creates an expectation gap ‘between the policy compromises institutions expect and the degree and directness of policy implementation that campaigners expect’.2 In the existing literature, there are two different views on the ECI. On the one hand, critical voices argue that the ECI does not work, for both technical and more fundamental reasons, such as the Commission’s excessive discretion in the follow-up stage.3 On the other hand, some rightly praise the ECI for its 1 EP, Study ‘The Added Value of the European Citizens’ Initiative (ECI), and its Revision (authored by C Salm; Annex 1 containing the externally commissioned study co-authored by C Gerstenmeyer et al), Doc No PE 615.666, April 2018, 27. 2 A Alemanno and J Organ, ‘The Case for Citizen Participation in the European Union’ in A Alemanno and J Organ (eds), Citizen Participation in Democratic Europe: What Next for the EU? (Lanham, MD, Rowman & Littlefield/Colchester, ECPR Press, 2021) 14. 3 See, eg, N Vogiatzis, ‘Between Discretion and Control: Reflections on the Institutional Position of the Commission within the European Citizens’ Initiative Process’ (2017) 23 European Law Journal 250, 269; J Organ, ‘Decommissioning Direct Democracy? A Critical Analysis of Commission

234  Jasmin Hiry-Lesch potential to take on various democratic tasks beyond initiating policy, such as awareness raising, agenda setting and citizen activation.4 This chapter belongs to the former strand of literature in that it takes a more pessimistic stance. It argues that neither the Court of Justice of the European Union (hereinafter CJEU or ‘the Court’) nor the legislative revision of the tool has so far rectified the aforementioned disproportion between the extremely burdensome organisation of an ECI and its minimal legislative impact. Instead, this chapter demonstrates that the ECI’s potential is currently caught between a dominant European Commission, which is not willing to accept a de facto, let alone a de jure, binding nature of the ECI, and a reticent Court, which has so far shown little activism to grant anything more than a reasoned opinion to organisers of a successful ECI. To free the ECI from the clutches of both these institutions, the chapter submits that the ECI’s root dilemma – the persistent expectation gap – must eventually be resolved. To this end, it provides two proposals that would prevent the ECI from turning into ‘an unused instrument’.5 The chapter is structured as follows. It continues by reviewing the evolution of the ECI’s legislative framework (section II), highlighting the discrepancy that exists between the extremely burdensome organisation of an ECI and its very minimal legislative impact. It then revisits the Court’s interpretation (section III) in order to demonstrate that the latter has so far been unwilling to make the ECI more meaningful and that it has done so by employing a purely literal interpretation of the tool, omitting any real consideration of the principle of democracy. This is followed by an examination of the Commission’s handling of successful ECIs (section IV), which aims to show that without a more proactive Court, the Commission was free to use, and has amply used, its discretionary powers. The analysis then turns to comparative law in search of ways out of this problem. The Finnish Citizens’ Initiative and the citizens’ initiative in the Swiss canton of Bern are discussed as two alternatives that may help to narrow down, or even close, the persistent expectation gap (section V). On this basis, the chapter concludes that the future ECI should either be transformed into a binding ECI or that efforts should be increased to clarify what citizens can expect from the ECI and, more importantly, what they cannot expect from it, and why they should nevertheless pursue the effort (section VI).

Decision-Making on the Legal Admissibility of European Citizens Initiative Proposals’ (2014) 10 European Constitutional Law Review 422. 4 See ch 11 by Mario Mendez in this volume; K Borońska-Hryniewiecka and E Monaghan, ‘The European Citizens’ Initiative as Democratic Legitimacy-Enhancing Tool: Toward a Broader Conceptualization’ in B Pérez de las Heras (ed), Democratic Legitimacy in the European Union and Global Governance: Building a European Demos (Berlin, Springer, 2017). 5 A Karatzia, ‘The European Citizens’ Initiative and the EU Institutional Balance: On Realism and the Possibilities of Affecting EU Law-Making’ (2017) 54 CML Rev 177, 208.

The European Citizens’ Initiative  235

II.  The Evolution of the Legislative Framework A.  Regulation 211/2011: A Bumpy Start? The ECI was formally introduced by the Treaty of Lisbon, which gave: Not less than one million citizens … [the power to] take the initiative of inviting the European Commission … to submit any appropriate proposal on matters where c­ itizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.6

The precise procedure of the ECI was initially regulated by Regulation 211/2011, which can be briefly summarised as follows.7 To register an ECI, an organising committee, formed by a minimum of seven EU citizens resident in seven different Member States,8 had to provide the Commission with information on the objective of the proposed initiative so that the latter could determine within two months whether the conditions for registration were fulfilled.9 From the moment of registration, the organisers were given 12 months to collect one million signatures from at least one quarter of the Member States.10 Where an initiative obtained the required support, the organisers could then submit their ECI to the Commission for examination.11 The latter would publish the initiative and receive the organisers for them to explain their cause.12 The organisers were also given an opportunity to present their initiative at a public hearing organised at the European Parliament (hereinafter EP or ‘the Parliament’).13 Within the ensuing three months, the Commission had to inform the organisers of the actions it intended to take, if any, and the reasons thereof.14 This concise outline of the procedure suffices to show that the organisation of an ECI was a cumbersome undertaking, which contrasted with the proclaimed aim of this Regulation, which is to provide for a ‘simple, user-friendly and proportionate … [procedure] so as to encourage participation’.15 In light of the challenges identified in the first report on the application of the Regulation, which was published in 2015, the Commission launched a proposal to revise the Regulation after only five years of its operation.16 6 Article 11(4) TEU. 7 See an in-depth discussion of the initial design choices of the ECI in ch 11 by Mario Mendez in this volume. 8 Regulation (EU) No 211/2011 on the Citizens’ Initiative [2011] OJ L 65/1, arts 3(1), (2). 9 ibid Article 4. 10 ibid Article 7; TEU, Article 11(4). 11 Regulation (EU) No 211/2011, art 9. 12 ibid arts 10(1)(a), (b). 13 ibid Article 11. 14 ibid Article 10(1). 15 ibid recital 2. 16 European Commission, ‘Report on the Application of Regulation (EU) No 211/2011 on the Citizens’ Initiative’ COM (2015) 145, 31 March 2015.

236  Jasmin Hiry-Lesch

B.  Regulation 2019/788: Facilitating the ECI Regulation 2019/788, which has been applicable since 1 January 2020, repealed its predecessor and introduced several changes aimed at making the ECI ‘less burdensome for organisers and supporters’.17 These changes concern both the registration, collection and examination stages of the ECI. While Chapter 11 by Mario Mendez in this volume provides a detailed analysis of the Regulation’s revision, it suffices for this chapter to say that the new Regulation certainly facilitates the organisation of ECIs. It does so primarily through intensified assistance and information provision during the preparation stage, the relaxation of stringent registration requirements through partial registration, and the flexible start of the collection stage. The extended time given to the Commission in the examination stage, combined with the Parliament’s scrutiny, might lead to a more thoughtful response from the Commission, ultimately making the ECI more attractive. Notably, however, the Regulation does not alter the fact that the Commission is free to decide how to follow up on an initiative;18 it merely introduces an ­obligation for the Parliament to scrutinise the Commission’s follow-up.19 As the Regulation does not specify what such scrutiny should look like,20 it is welcome that the Parliament revised its Rules of Procedure to that effect. The latter provides the possibility to ‘hold a plenary debate and … to wind up this debate with a ­resolution … [as well as] to exercise the [Parliament’s] right conferred … by Article 225 [of the Treaty on the Functioning of the European Union (TFEU)]’.21

C.  Regulation (EU) 2020/1042: The Need for Action in Light of the COVID-19 Pandemic At the time of adopting Regulation 2019/788, the challenges created by the outbreak of the COVID-19 pandemic in March 2020 could not have been anticipated. Member States adopted numerous lockdown measures, such as the prohibition of public events and large gatherings. These measures had a serious impact on the organisation of ECIs. The collection of support for an ECI largely relies on local campaigning and public events, which were no longer possible. The organisation of meetings or public hearings with organisers in the examination phase had become equally problematic.

17 Regulation (EU) 2019/788 on the European Citizens’ Initiative [2019] OJ L130/55, Article 28; recital 5. 18 ibid Article 15(2). 19 ibid Article 16. 20 H van Eijken, ‘Direct Democracy and the EU Citizens’ Initiative: A Paper Tiger That Never Bites?’ in T Marguery et al (eds), The European Elections, 40 Years Later: Assesment, Issues and Prospects (Brussels, Bruylant, 2020) 359–73, 369. 21 EP, Rules of Procedure of January 2021, rule 222(9).

The European Citizens’ Initiative  237 To mitigate these difficulties, the EU legislature adopted Regulation 2020/1042, which lays down ‘temporary measures applicable to the collection, the verification and the examination periods for registered European citizens’ initiatives’.22 The Regulation extended the collection period for newly registered initiatives until September 2021 and for ongoing ones by six months. It also provides for possibilities to postpone or hold the meetings between the institutions and the organisers remotely.23 Given the difficulty of predicting the course of the pandemic, the Regulation also empowers the Commission to further extend the collection period by three months where ‘at least a quarter of Member States … continue to apply … measures in response to the Covid-19 pandemic which substantially hamper the ability of organisers to collect statements of support’.24 Finding that this condition continued to be fulfilled, by October 2021 the Commission adopted three implementing decisions extending the respective periods for the collection of support.25 The literature has argued that the pandemic has generally ‘grounded’ the ECI, pointing to the few initiatives registered in the first months following its outbreak.26 Yet, this argument has recently been put into perspective. With some newly registered initiatives, the total number of new registrations between March 2020 and July 2021 rose to nine initiatives – three times as many as in the 16 months prior to the pandemic.27 Despite this positive development, it is clear that COVID-19 has had an impact on the collection of support for ECIs. However, organisers seem to have found creative ways to cope with the crisis.28 During a webinar organised by the European Citizens’ Initiative Forum, organisers mentioned social media engagement, webinars, mailing lists as well as call centres as means to effectively gather support even in times of a pandemic.29 While physical campaigning might not have been possible on the pre-pandemic scale, smaller local campaigns remained possible and crucial. Nevertheless, as the rules aimed at combating the pandemic are changing quickly, planning such campaigns is rather cumbersome. Therefore, it is welcome that the EU legislature extended the periods 22 Regulation (EU) 2020/1042 laying down temporary measures concerning the time limits for the collection, the verification and the examination stages provided for in Regulation (EU) 2019/788 on the European citizens’ initiative in view of the COVID-19 outbreak [2020] OJ L231/7, Article 1. 23 ibid Article 4. 24 ibid Article 2(2). 25 Commission Implementing Decision (EU) 2020/2200 [2020] OJ L434/56; Commission Implementing Decision (EU) 2021/360 [2021] OJ L69/9; Commission Implementing Decision (EU) 2021/944 [2021] OJ L210/45. 26 C Berg and T Hieber, ‘The European Citizens Initiative is Now at a Crossroads’, EUI Transnational Democracy Blog, 23 April 2021, https://blogs.eui.eu/transnational-democracy/the-european-citizensinitiative-is-now-at-a-crossroads-the-member-states-can-show-which-path-to-follow-in-the-future/. 27 See ‘European Citizens’ Initiative’, https://europa.eu/citizens-initiative/home_en. 28 F Grazian et al, Webinar ‘Collecting Signatures for Your Citizens’ Initiative’, European Citizens’ Initiative Forum, 30 March 2021, https://europa.eu/citizens-initiative-forum/learn/webinar/webinarcollecting-signatures-your-citizens-initiative-2021_en. 29 ibid.

238  Jasmin Hiry-Lesch for the collection of support in an effort to diminish the impact of the crisis on the organisation of ECIs.

III.  Judicial Restraint in the Court’s Interpretation of the Legal Framework? Even before the outbreak of the pandemic, the revision of the ECI’s legislative framework clearly showed the flaws of the procedure in its early form. It is no surprise that this procedure has been the subject of several court judgments. The cases dealt with so far can be divided into two groups: those dealing with the requirements for registration and those dealing with the outcome of a successful initiative. Whereas the former show the Court’s willingness to facilitate the ECI, the latter exemplify its reticence in making the ECI more meaningful.

A.  Conditions of Registration As at 27 October 2021, the Commission refused to register more than 20 proposed citizens’ initiatives exclusively because they fell ‘manifestly outside the framework of the Commission’s powers to submit a proposal’.30 Evidently, an ECI cannot frustrate the principle of conferral,31 and therefore needs to call for an act that can be initiated by the Commission.32 What is less evident is the question of who carries the burden of proof in this respect. Early Commission practices favoured an interpretation that ECI organisers had to prove this point, and the Commission would only judge on the correctness of their assessment.33 However, ever since the ruling of the European Court of Justice (ECJ) in Izsák and Dabis, it has been clear that this is not for the organisers, but for the Commission to prove.34 According to the ECJ, the Commission’s registration assessment is limited to a prima facie examination of whether the ECI does not manifestly fall outside the framework of its powers.35 Requiring detailed proof from the organisers would upset the very purpose of the ECI, namely to make the EU more accessible.36 Only in the follow-up stage of a successful ECI will the Commission conduct a more comprehensive examination. Notably, when this ruling was handed down, the Commission had itself already acknowledged the difficulties in the registration process and began facilitating

30 ‘European Citizens’ Initiative’ (n 27). 31 Case C-589/15 P, Anagnostakis v Commission [2017] ECLI:EU:C:2017:663, paras 97–98. 32 N Athanasiadou, ‘The European Citizens’ Initiative: Lost in Admissibility?’ (2019) 26 Maastricht Journal of European and Comparative Law 251, 256. 33 See, eg, Case T-646/13, Minority SafePack [2017] ECLI:EU:T:2017:59. 34 Case C-420/16 P, Izsák and Dabis [2019] ECLI:EU:C:2019:177, paras 61–62. 35 ibid para 62. 36 ibid para 64.

The European Citizens’ Initiative  239 registration as far as possible.37 Although this does not diminish the legal importance of this ruling, it renders its practical impact less revolutionary. Nevertheless, in this set of cases, the Court ‘maintained a relatively sympathetic approach’ towards the ECI.38

B.  The Non-binding Nature of a Successful ECI The second set of cases, which deals with the outcome of a successful initiative, shows the Court’s less sympathetic approach. In October 2016, the organisers of the ‘Stop Vivisection’ ECI launched a complaint to the European Ombudsman, Mrs O’Reilly, arguing that the Commission had given an ‘inadequate response to [their] initiative’.39 In essence, the Commission refused to follow up on most of the organisers’ requests.40 While recognising the organisers’ frustration, the Ombudsman ultimately found that the Commission was free to decide whether to submit the requested proposal.41 However, she noted that the Commission is obliged to ‘explain to the public, in a detailed and transparent manner, the political choices it makes in responding to an ECI’.42 Finding that the Commission had not violated this duty, she concluded that there was no maladministration on the part of the Commission. To the detriment of the organisers, the Ombudsman’s findings were subsequently confirmed by the ECJ’s ruling in Puppinck. In 2014, the organisers of the ‘One of Us’ ECI brought a case to the General Court (GC) in response to the Commission’s refusal to take any action following their initiative. However, the GC upheld the Commission’s decision, finding that the ‘wording [of the Regulation] clearly shows that the Commission is not bound to respond to an ECI’.43 The ECJ confirmed this on appeal, ruling that neither the background of the ECI nor its proper aim and purpose permit the conclusion that a successful ECI would bind the Commission to take any action.44 This conclusion, according to the ECJ, is further supported by the wording of both Article 11(4) TEU, which uses the term ‘invite’, and Article 10(1)(c) of the Regulation, which provides that the Commission is to set out the action it intends to take, if any. Indeed, a purely literal interpretation of the law makes it hard to see how the Court could have interpreted the legal framework any other way. Nevertheless, 37 See, eg, Commission (n 16) 14 ff. 38 A Karatzia, ‘Revisiting the Registration of European Citizens’ Initiatives: The Evolution of the Legal Admissibility Test’ (2018) 20 Cambridge Yearbook of European Legal Studies 147. 39 Ombudsman Decision on the European Commission’s Response and Follow-up to the European Citizens’ Initiative “Stop Vivisection”’, Doc No 1609/2016/JAS, 18 April 2017. 40 Commission, ‘Communication on the ECI “Stop Vivisection”’, C (2015) 3773, 3 June 2015, 8. 41 Ombudsman Decision (n 39) para 10. 42 ibid para 11. 43 Case T-561/14, One of Us and Others v Commission [2018] ECLI:EU:T:2018:210, para 114. 44 Case C-418/18 P Puppinck and Others v European Commission [2019] ECLI:EU:C:2019:1113, paras 57 ff.

240  Jasmin Hiry-Lesch one cannot fail to acknowledge that in employing such a literal interpretation, the Court omitted any real consideration of the principle of democracy, and particularly the notion of participation.45 With the entry into force of the Treaty of Lisbon, it is precisely that notion that has become an integral part of the EU’s democratic legitimacy.46 According to Mendes, the resulting extension of the notion of democracy: [P]ostulates a normative shift in the way participation in EU law and governance is approached. Participation practices under Article 11 TEU can no longer be viewed only as a manifestation of participatory governance – which focuses on problem-solving capacities and efficiency of regulatory decisions – but need to be assessed in the light of their broader democratic meaning.47

In interpreting Article 11(4) TEU as having no binding force upon the Commission, the Court ultimately denied this normative shift. Instead, it retained its familiar focus on Article 17 TEU, holding that the Commission’s independence in the exercise of its right of initiative is indispensable.48 Remarkably, Advocate General Bobek stressed in his Opinion that he does not wish to ‘suggest that the ECI is a perfect mechanism that provides a miraculous solution to the alleged or real shortcomings of the European Union in terms of democratic legitimacy’.49 However, neither the Advocate General nor the Court considered themselves competent to alter the ECI to that effect. Clearly, there are limitations to what the Court can do.50 However, in my view, a more thorough examination of Article 11(4) TEU in light of the principle of participatory democracy would have been within the ambit of the Court’s competence. Yet, while scholars have rightly praised the Court for finding that the Commission’s communication responding to this ECI is subject to judicial review in the first place,51 one may wonder whether the Court missed a chance to give a deeper meaning to the principle of democracy as shaped by the Treaty of Lisbon and elevate the ECI from an instrument of participatory governance to an instrument of participatory democracy.52 Instead of using this potential, the Court followed the Commission’s lead, which previously emphasised why the ECI could not have any binding character.53 Of course, this should not influence the Court, 45 ibid paras 64–65. 46 D Ritleng, ‘Does the European Court of Justice Take Democracy Seriously? Some Thoughts about the Macro-Financial Assistance Case’ (2016) 53 CML Rev 11; J Mendes, ‘Participation and the Role of the Law after Lisbon: A Legal View on Article 11 TEU’ (2011) 48 CML Rev 1849. 47 Mendes (n 46) 1859. 48 Puppinck (n 44) paras 59–62; Ritleng (n 46). 49 Opinion of Advocate General (AG) Bobek in Puppinck and Others v Commission, ECLI:EU:C:2019:640, para 84. 50 N Vogiatzis, ‘The Commission’s “Communication” on a Successful European Citizens’ Initiative before the Court of Justice: ECJ (Grand Chamber) 19 December 2019, Case C-418/18 P, Puppinck and Others v European Commission’ (2020) 16 European Constitutional Law Review 691, 706. 51 ibid 698–99. 52 See, eg, Mendes (n 46) 1859. 53 Commission, ‘Staff Working Document: Proposal for a Regulation on the European Citizens’ Initiative’, SWD (2017) 294, 13 September 2017, 40.

The European Citizens’ Initiative  241 whose task is to rule based on the law, but it is nevertheless important to note that the Commission’s interpretation of the ECI seems to dominate the discussion on the nature of this instrument.54 It therefore needs to be concluded that the Court’s restrained judgment in Puppinck and the new Regulation’s retention of the Commission’s discretion in following up on successful ECIs indicate that the Commission is free to continue to treat citizen participation merely as a tool of ‘more effective policy shaping’55 rather than one that would effectively limit its right of initiative.

IV.  The Outcome of Successful ECIs: A Showcase of Executive Dominance? Even before receiving carte blanche from the Ombudsman and the Court, the Commission made great use of the ambiguous wording of the legislative framework of the ECI. As pointed out by Jančić in Chapter 1 of this volume, the Commission’s responses to successful ECIs vary from not taking any action to eventually initiating legislation, although not necessarily reflecting the organiser’s main requests. In response to three out of the six successful ECIs, the Commission considered legislative action inappropriate.56 The organisers did not receive this well. Some have argued that the Commission’s negative response to their initiative is ‘nothing more than a patronising pat on [their] shoulders’.57 Regarding the remaining three successful initiatives, the Commission was more responsive. In response to the ‘Right2Water’ ECI, the Commission revised the Drinking Water Directive, although only some eight years after the initiative’s launch.58 While this revision had a positive impact on the implementation of a human right to water, the revision had never been part of the ECI’s demands.59 Responding to the ‘Ban Glyphosate’ ECI, the Commission proposed a regulation on the transparency and sustainability of the EU risk assessment in the food chain instead of following the initiative’s main request, which was the ban

54 See also E Longo, ‘The European Citizens’ Initiative: Too Much Democracy for EU Polity?’ (2019) 20 German Law Journal 181, 198. 55 Commission, ‘European Governance – A White Paper’ COM (2001) 428, 25 July 2001, 15. 56 Commission, ‘Communication on the ECI “One of Us”’, COM (2014) 355, 28 May 2014; Commission, ‘Communication on the ECI “Minority SafePack”’, C (2021) 171, 14 January 2021; Commission (n 40). 57 Federal Union of European Nationalities, ‘Minority SafePack: The European Commission Turned its Back on National Minorities’, 14 January 2021. 58 Directive (EU) 2020/2184 on the quality of water intended for human consumption [2020] OJ L435/1. 59 J van den Berge, ‘Water and Sanitation are a Human Right! Water is a Public Good!’ in C Berg and J Thomson (eds), An ECI That Works! Learning from the First Two Years of the European Citizens’ Initiative (Alfter, ECI Campaign, 2014).

242  Jasmin Hiry-Lesch of glyphosate-based herbicides.60 The most recent successfully submitted ECI, ‘End the Cage Age’, might prove to be the most influential ECI because the Commission committed to follow the initiative’s request and table a proposal by the end of 2023 introducing a prohibition of the use of cages for farmed animals.61 It remains to be seen whether the Commission will fulfil this commitment, but this is a step in the right direction. In parallel to these variable reactions of the Commission to successful ECIs, the EP began using its leverage through a more systematic adoption of resolutions in support of ECIs. While the Parliament has voiced its views on successful ECIs in the past too, this has not been done systematically, nor did it necessarily impact the Commission.62 With the changes introduced by Regulation 2019/788, the Parliament seemingly became more eager to use ECI-oriented resolutions. Although these resolutions are not legally binding, they are a means of providing democratic backing for the causes advanced by successful ECIs.63 While the Commission remains free to decide not to follow the ECI notwithstanding the Parliament’s support, such support reinforces the need for the Commission to give good arguments for its decision. Yet, despite this supposedly positive trend, the fact remains that the Commission has amply used its discretionary powers and has so far promised to follow the organisers’ main requests in only one ECI. Against this background, one wonders how much longer ECI organisers will be willing to continue to engage in the arduous process of organising a citizens’ initiative, particularly if all they receive at the end of the procedure is the aforementioned pat on the shoulder. Scholars are divided as to the actual objective and success of the ECI, but, in my view, its long-term success is to be measured based on the policy impact that an ECI can have. Currently, the ECI seems to be stuck between an executive that exploits the discretion granted and a judiciary that feels like it has reached the limits of its competence and can no longer ‘save’ the ECI.

60 Regulation (EU) 2019/1381 on the transparency and sustainability of the EU risk assessment in the food chain [2019] OJ L231/1; Commission, ‘Communication on the ECI “Ban Glyphosate”’, C (2017) 8414, 12 December 2017. 61 Commission, ‘Communication on the ECI “End the Cage Age”’, C (2021) 4747, 30 June 2021. 62 EP, Resolution of 8 September 2015 on the follow-up to the European Citizens’ Initiative Right2Water, Doc No P8_TA(2015)0294; EP, Resolution of 3 May 2018 on a global ban to end animal testing for cosmetics, Doc No P8_TA(2018)0202; EP, Resolution of 24 October 2017 on the draft Commission implementing regulation renewing the approval of the active substance glyphosate in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Implementing Regulation (EU) No 540/2011, Doc No P8_TA(2017)0395; EP, Resolution of 17 April 2018 on the implementation of the 7th Environment Action Programme, Doc No P8_TA(2018)0100. 63 EP Rules of Procedure, rule 222(8); EP, Resolution of 10 June 2021 on the European Citizens’ Initiative ‘End the Cage Age’, Doc No P9_TA(2021)0295; EP, Resolution of 17 December 2020 on the European Citizens’ Initiative ‘Minority SafePack’ – one million signatures for diversity in Europe, Doc No P9_TA(2020)0370.

The European Citizens’ Initiative  243

V.  Ways Forward? A way out of this deadlock might require taking a step back and reconsidering the underlying aim of the ECI. In the ECI’s revised legislative framework, the EP undertook to answer precisely this question by commissioning a study on the ECI’s added value.64 The study found that the ECI could, in theory, serve either of the two ideal functions: a consultative or a politicising one. An ECI serving a consultative function would focus on providing new expertise to the Commission and ultimately aim to improve EU policies.65 It would constitute a means of consultation in that it would seek to establish a dialogue between the civil society and the institutions to achieve good policies.66 If the ECI were to serve a politicising function, it would be a means for ­citizens to scrutinise the institutions and hold them accountable in between elections. A politicising ECI would lead to potentially controversial public debates, in that citizens ‘could openly criticise the EU’.67 It would not aim to establish a dialogue, but would instead force the institutions to ‘become more responsive and also to better explain their policies to EU citizens’.68 These functions are mutually exclusive. However, the study found no clear choice under Regulation 211/2011, which eventually reinforced the need for a revision.69 While the study did not indicate which function is preferred, Regulation 2019/788 shows a preference for the politicising function in that it follows many of the study’s recommendations to that effect, such as the extended time limits for the Commission’s response.70 However, the legislature omitted taking the final step of sacrificing the Commission’s right of initiative in favour of a successful ECI.71 Ultimately, an ECI pursuing a politicising function would necessitate ‘direct legal consequences, such as an automatic start of a legislative process’.72 Yet, although this does not render the ECI completely meaningless, it retains a disproportion between the extremely burdensome organisation of an ECI and its continuing minimal legislative impact. This disproportion eventually leads to an ‘expectation gap between the policy compromises institutions expect and the degree and directness of policy implementation that campaigners expect’.73 If one 64 EP (n 1). 65 ibid 7. 66 ibid 55 and 63. 67 ibid 16. 68 ibid 64. 69 ibid 55. 70 ibid 98. 71 This might have partly been due to the fact that the introduction of an automatic start of the legislative procedure would require a Treaty change in light of the clearly non-binding wording of Article 11(4) TEU. Partly, however, it seems that such a change was ultimately undesired by the Commission itself. 72 EP (n 1) 85. 73 Alemanno and Organ (n 2) 14. This expectation gap was possibly further exacerbated by the way in which both the institutions and scholarship portrayed the ECI, as highlighted in ch 11 by Mario Mendez in this volume.

244  Jasmin Hiry-Lesch wants to prevent the ECI from becoming an unused instrument, this expectation gap must be closed. To this end, this section examines how other jurisdictions, which consider citizens’ initiatives as a politicising instrument, seek to resolve this conflict before proposing two ways to do so at the EU level.

A.  Comparative Law: A Source of Inspiration? When looking for inspiration as regards citizens’ initiatives, it is impossible not to consider Switzerland, which has been said to be ‘the most intensive user of direct democracy’.74 Equally interesting in this respect is the Finnish Citizens’ Initiative (FCI), which is modelled on the ECI and, as such, has likely faced similar struggles.75 The FCI was introduced in 2012 and allows 50,000 citizens to invite the Finnish Parliament to adopt a specific proposal.76 A minimum of three organisers are given six months to collect the required support. Where successful, a parliamentary committee deals with the FCI and hears the organisers before adopting a report on the initiative, which is subsequently discussed and voted on in the plenary.77 By 29 October 2021, only 55 out of the 1,283 initiatives registered were submitted to Parliament, and only two led to legislative change.78 Thus, the FCI’s success rate in terms of influencing the agenda might seem very modest. However, Christensen finds that signatories’ political trust did increase where Parliament adopted the successful initiative or where the signatories ‘felt that Parliament gave the proposal due consideration’.79 This might be a lesson for the ECI, because the fact that the FCI was discussed and given due consideration in Parliament had a positive impact on the citizens’ political trust in the institutions. Switzerland has a slightly different approach to citizens’ initiatives. For instance, in the canton of Bern, a cantonal citizens’ initiative (BCI) is organised by seven organisers, who must collect 15,000 signatures within six months.80 Where the 74 U Serdült and Y Welp, ‘Direct Democracy Upside Down’ (2012) 8 Taiwan Journal of Democracy 69, 76. 75 H Su Seo and T Raunio, ‘Reaching out to the People? Assessing the Relationship between Parliament and Citizens in Finland’ (2017) 23 Journal of Legislative Studies 614, 627. 76 Constitution of Finland of 11 June 1999 (amended in 2018), s 53; HS Christensen et al, ‘The Finnish Citizens’ Initiative: Towards Inclusive Agenda-Setting?’ (2017) 40 Scandinavian Political Studies 411, 417. 77 Christensen et al (n 76) 418. 78 Finnish Citizens’ Initiative, www.kansalaisaloite.fi/fi/hae?searchView=pub&orderBy=createdNew est&show=all; Finnish Parliament, www.eduskunta.fi/FI/valtiopaivaasiat/Sivut/Kansalaisaloitteet.aspx; Yle (Finnish Broadcasting Company), ‘Citizens’ Initiative Demanding Referendum on EU Stimulus Gains Enough Signatures to Proceed to Parliament’, 27 September 2020, https://yle.fi/uutiset/osasto/ news/citizens_initiative_demanding_referendum_on_eu_stimulus_gains_enough_signatures_to_ proceed_to_parliament/11565699. 79 HS Christensen, ‘Boosting Political Trust with Direct Democracy? The Case of the Finnish Citizens’ Initiative’ (2019) 7 Politics and Governance 173, 179–80. 80 Constitution du canton de Berne du 06.06.1993 (BSG 101.1), Articles 58–60; Loi sur les droits ­politiques du 05.06.2012 (BSG 141.1), Articles 137–39 and 140–58.

The European Citizens’ Initiative  245 initiative meets these requirements, it is submitted to the cantonal Parliament (Grosser Rat (GR)). Within nine months, the GR will then either accept or reject the initiative. However, the GR may also prepare its own counter-proposal to the initiative, in which case it is given a total of 18 months to act. Where the GR rejects the initiative, prepares a counter-proposal or fails to meet the deadlines, the initiative, together with the GR’s counter-proposal where applicable, will be submitted to a referendum. The voting population will then vote on whether to accept the BCI organisers’ initiative, the GR’s counter-proposal or, in the case of a tie, which of the two it wishes to give preference to. In other words, where the GR does not accept the successful initiative as such, the final decision on the BCI is taken by the citizens themselves. Bühlmann therefore rightly points out that if citizens organise a BCI and are successful in doing so, they gain a lot because the procedure of follow-up to BCIs effectively forces the cantonal Parliament to either accept the BCI or to provide good counter-arguments to convince the voting population as to why the initiative should be rejected.81 One central lesson can be learned from these examples. The meaningful involvement of legislatures in both the FCI and the BCI seems to enhance the legitimacy and status of citizens’ initiatives in the eyes of the citizens. This is even more so in Bern, where the cantonal Parliament’s failure to adopt the initiative as such leads to a referendum. Bern hence combines elements of participatory democracy with elements of direct democracy, and nicely illustrates that participatory democracy can add value not only of its own right, but also by feeding into other forms of democracy. This construction clearly indicates the politicising function of the initiative and minimises the potential for an expectation gap.

B.  Meeting Organisers’ Expectations: A Binding ECI after All? These findings suggest that citizens’ confidence in the ECI might be strengthened if the latter provided for a strong involvement of the legislatures. In this direction, it has recently been suggested that the ECI could be improved if ECIs were to be sent directly to the EP.82 Yet, in my view, this could lead to an even more problematic situation. Under the Treaties, the Parliament has no direct right of legislative initiative, but can only ‘request’ the Commission to submit a proposal.83 However, this request is not binding upon the Commission. An ECI would thus be addressed to the Parliament, which might support the initiative by activating Article 225 TFEU, but the Commission could still decide not to follow the ECI and

81 M Bühlmann, ‘“Leuchtturm der Hoffnung” oder Erzeugerin “irrationaler Ängste” Taugt die direkte Demokratie der Schweiz als Vorbild?’ in AH Apelt and D Reimers (eds), Repräsentative versus direkte Demokratie Repräsentation in der Krise? (Halle, Mitteldeutscher Verlag, 2018). 82 Berg and Hieber (n 26). 83 TFEU, Article 225.

246  Jasmin Hiry-Lesch thereby prevent it from proceeding to the legislative procedure. This would have a detrimental effect on the already shaken democratic legitimacy of the EU.84 The Commission’s wide discretion on how to proceed with ECIs also renders the EP’s otherwise helpful provision enabling a debate on the ECI insufficient.85 For these reasons, this chapter proposes the introduction of a binding ECI, which would require the Commission to respond to a successful initiative with a proposal to the EU legislature. Naturally, introducing such a binding ECI in order to close the expectation gap is not without its difficulties. Two central hurdles would have to be overcome: a legal one and a political one. The legal hurdle is that one would have to reconcile a binding ECI with the indirect rights of legislative initiative of the Parliament and the Council,86 and the Commission’s duty to promote the EU’s general interest.87 Particularly regarding the latter duty, it is hard to see how the Commission could forward a proposal without any input, especially because not all ECIs come as perfectly formulated legislative proposals. Some Commission intervention is therefore inevitable. Following the Swiss example, one could imagine the following solution. If the Commission agreed with the substance of the ECI, it could adopt a mirroring legislative proposal and attach a recommendation for the EU legislature to adopt it.88 If the Commission disagreed, it could give ‘its reasons for not supporting it, but nonetheless [allow] it to proceed to the legislative process’.89 This would allow the Commission to voice its concerns and promote the Union’s general interest, while concomitantly leaving the final decision to the EU legislature. It would also be conceivable for the Commission to introduce a counter-proposal which, in its view, would better protect the general interest of the EU. It would then be up to the legislature to adopt the Commission’s counter-proposal, the proposal based on the ECI or to reject them both. Naturally, there are reservations towards such an approach. As underlined by Advocate General Bobek in his Puppinck Opinion, conflicting legislative proposals are very common in national legal systems, but this is of little concern because at the national level multiple actors hold the right of legislative initiative.90 In the EU, conversely, the right of legislative initiative is almost exclusively reserved for the

84 See, eg, C Holst and A Molander, ‘Responding to Crises: Worries about Expertization’ in M Riddervold et al (eds), The Palgrave Handbook of EU Crises (Cham, Palgrave Macmillan, 2021). 85 EP Rules of Procedure, rule 222(8). 86 See the argument that the ECI closely mirrors the initiative powers of both the Parliament and the Council and might have been accepted for precisely that reason in the first place in B Kaufmann, ‘Transnational “Babystep”: The European Citizens’ Initiative’ in M Setälä and T Schiller (eds), Citizens’ Initiatives in Europe (Basingstoke, Palgrave Macmillan, 2012) 231. See also AG Bobek in Puppinck (n 49) paras 55–56. 87 TEU, Article 17(1). 88 See to that effect D Schily, ‘Rewarding a European Citizens’ Initiative’ in C Berg et al (eds), The Initiative for Europe Handbook 2008 (Lucerne, Initiative & Referendum Institute Europe, 2007) 71. 89 ibid. 90 AG Bobek in Puppinck (n 49) para 53, fn 38.

The European Citizens’ Initiative  247 Commission. According to Bobek, where a single institution sends contradictory proposals to the legislature, this cannot ‘be called effective (or even democratic) governance’ either in the national or the EU context.91 While his concern is not unfounded, in my view, it merely highlights a more fundamental problem existing in the EU: the lack of political contestation at the stage when the legislative initiative is exercised.92 Particularly given the small number of successful ECIs, in those few cases, it might be worth sacrificing the principle of effectiveness in favour of the principle of democracy. Another possible reservation might be that under this solution, not every initiative will become law, as it is up to the legislature whether to adopt or reject the proposal(s) submitted. Yet, this reservation can swiftly be rejected because this is simply part of the democratic nature of the legislative procedure and, as such, is part of a healthy democracy.93 The political hurdle of a binding ECI is that it would need to be politically accepted by the Commission, which worked hard over the previous years to demonstrate its dominance in the ECI procedure. It is therefore far from evident whether the latter would easily alter its stance towards the ECI. Nevertheless, the current political climate raises new opportunities. Namely, Commission President Ursula von der Leyen stated in her opening statement in the Parliament on 16 July 2019 that she wants to ‘support a right of initiative for the European Parliament’,94 which is now reflected in the 2019–24 working methods of the Commission.95 In the latter, she signalled an intention to do the same for the Council. It is hence not impossible for the Commission to reconsider its stance on the ECI, particularly given von der Leyen’s call for ‘European citizens to play a leading and active part in building the future of [the] Union’.96 Committing to a legislative follow-up to the ECI would enable citizens to play such a role.

C.  Lowering Organisers’ Expectations: A Need for Clarification Where a binding ECI, as suggested above, would not be feasible in light of the hurdles identified, a second means envisaged here to close the expectation gap

91 ibid. 92 On political contestation, see G Marks and M Steenbergen, ‘Understanding Political Contestation in the European Union’ (2002) 35 Comparative Political Studies 879. 93 See to that effect, eg, A Parol, ‘The European Citizens’ Initiative Reform: Does it Matter?’ (2020) 40 Review of European and Comparative Law 67, 89. 94 U von der Leyen, ‘Opening Statement in the European Parliament Plenary Session by Ursula von der Leyen, Candidate for President of the European Commission’, Strasbourg, 16 July 2019. 95 Commission, ‘Communication on the Working Methods of the Commission’, P (2019) 2, 1 December 2019, 5. 96 Von der Leyen (n 94).

248  Jasmin Hiry-Lesch leaves the ECI untouched, but stresses the need for clearer communication regarding the objective of the ECI. Managing expectations is of central importance to agenda initiatives and, as such, is not a challenge that is unique to the ECI. Christensen argues that the high expectations harboured by some users of the FCI were ‘unrealistic’.97 He finds that where the Finnish Parliament did not approve a successful initiative, these high expectations led to a slight decline in political trust on the part of some signatories. The minimum goal for the future of the ECI should hence be to avoid a decline in political trust. This is to some extent addressed by the sharing of best practices about the ECI, among them notably the creation of the European Citizens’ Initiative Forum. This is an online platform, operated by the European Citizen Action Service on behalf of the Commission, which provides practical information about the ECI, legal advice and a space for exchange. However, it is evident from the ECI organisers’ reactions to Commission communications responding to their successfully submitted ECIs that these efforts and the recent revision of the ECI legal framework have not closed the expectation gap. As argued by Alemanno and Organ: ‘Provisions for participatory democracy in the EU must … clearly explain the extent to which citizens can exercise extra influence over the EU policy agenda and its outcomes.’98 It appears that the ECI has still not managed to communicate its aim. This second option is therefore one that relies on a continuing need for campaigning by EU institutions in order to clarify what citizens can expect from the ECI and, perhaps more importantly, what they cannot expect, and why they should nevertheless pursue the effort. One perhaps drastic way to do so would be to change the terminology used. As the ECI currently only represents a means to start a critical debate, it is misleading that the tool has been called an ‘initiative’ – a term which clearly carries a legal connotation, implying the potential to bring about change. In my view, much of the debate could have been avoided had the ECI not carried this ‘title’ in the first place. Calling it a debate, agenda setting or a request for citizens’ input would be more accurate, because calling it an initiative is misleading if the Commission is not ready to give citizens a right to such an initiative.99 If EU institutions started using terminology other than that of an initiative, this might persuade organisers to lower their expectations of what a successful ECI can realistically achieve. Admittedly, this second option is neither revolutionary nor a quick fix to the current situation. Instead, it is a modest attempt to save the ECI if more far-reaching reforms are rejected.

97 Christensen (n 79) 179. 98 Alemanno and Organ (n 2) 14. 99 See also N Vogiatzis, ‘Is the European Citizen’s Initiative a Serious Threat for the Community Method?’ (2013) 6 European Journal of Legal Studies 91, 105.

The European Citizens’ Initiative  249

VI. Conclusion This chapter has shown that the ECI, in its current form, is caught between a dominant Commission and a reserved Court. The Commission has so far shied away from systematically submitting proposals to the EU legislature in response to successful ECIs. The Court has restricted itself to the safe harbour of a literal interpretation of Article 11(4) TEU, thereby omitting to consider the principle of participatory democracy enshrined in the Lisbon Treaty. Amid this deadlock, the recent revisions of the legal framework of the ECI have facilitated the overall organisation of citizens’ initiatives, introducing a slightly more meaningful follow-up to the successfully submitted ECIs. However, this has failed to close the ‘expectation gap between the policy compromises that institutions expect and the degree and directness of policy implementation that campaigners expect’.100 Inspired by the examples of the FCI and the Citizens’ Initiative of the Swiss canton of Bern, this chapter has proposed two ways to close this expectation gap. The first option envisaged revisits a recurring argument according to which the ECI would ‘be a more successful instrument of participation if appropriate proposals … were forwarded as such to the co-legislator’.101 However, this chapter has acknowledged both the legal and political hurdles of introducing such a binding ECI. The ECI should indeed ensure that it avoids giving ‘a (vocal) fraction of European citizens … more weight than the two EU institutions that are directly and indirectly legitimised by (potentially) all European citizens’.102 A binding ECI would also have to be reconciled with the Commission’s duty to promote the Union’s general interest by allowing the Commission to voice its support or opposition to the proposal forwarded to the EU legislature. While there have long been doubts that a binding ECI would ever be politically realistic, this chapter has argued that momentum is finally growing. The Commission is currently re-evaluating its monopoly on the right of initiative. President von der Leyen’s agenda is moving the Commission in the direction of at least considering s­acrificing parts of its power.103 This may sooner or later result in the Commission altering its stance regarding the ECI. The second option that this chapter has envisaged is a change in the terminology in order to lower organisers’ expectations and better reflect the true aims of the ECI. In light of the continuing burdensome procedure of organising an initiative,

100 Alemanno and Organ (n 2) 14. See also the argument that ‘it is rather unlikely that it [the ECI reform] could boost the ECI as an instrument of indirect legislative initiative’ in Parol (n 93) 67. 101 Vogiatzis (n 50) 703. 102 AG Bobek in Puppinck (n 49) para 56. 103 On the effects of this re-evaluation, see E Best, ‘The European Parliament and the Right of Initiative: Change Practice, Not Powers’, EIPA Paper, June 2021, 5–9.

250  Jasmin Hiry-Lesch which has been further complicated by the COVID-19 pandemic, EU institutions need to clearly communicate what the ECI is all about and, perhaps most importantly, what it is not about. As it stands, the ECI does not resemble a classical right of legislative initiative, but should rather be seen as an agenda-setting tool. EU institutions should hence put greater effort to clarify the very nature of the ECI. In conclusion, this chapter has shown that the ECI is yet to find its optimal shape. While it carries the potential to institutionalise citizen participation in the EU governance system, this potential has not yet been fully realised.

13 The Role of the European Economic and Social Committee in Improving EU Citizen Participation JAMES ORGAN AND NIKOS VOGIATZIS

I. Introduction This chapter explores how the European Economic and Social Committee (EESC) has fostered citizen participation in European Union (EU) decision-making. The EESC has long been a promoter of participatory democracy and sees itself as the first example of participatory democracy in the EU.1 In 1992, the EESC stated that it needs ‘to carry out and develop [its] functions … putting participatory democracy to work … in the interests of the EU’.2 The association of the EESC with participatory democracy is largely derived from its role as the voice of civil society. The EESC’s mission statement states that its main function is to represent ‘organised civil society’ in the EU, namely workers, trade unions and organisations belonging to the ‘Civil Society Organisations’ Group’.3 As well as including civil society in EU decision-making in order to deepen EU participatory democracy, the EESC also promotes and supports existing EU instruments of participatory democracy. In this context, this chapter examines the EESC’s involvement in the development of the European Citizens’ Initiative (ECI) process. The ECI is used as a case study to explore the EESC’s involvement in and promotion of EU participatory democracy. 1 EESC, Opinion on ‘The Representativeness of European Civil Society Organisations in Civil Dialogue’, CESE 240/2006. 2 EESC, Information Report on the Citizens’ Europe, April 1992. 3 The EESC provides further guidance on the notion of ‘organised civil society’: ‘Civil society covers a wide range of organisations and the activities they undertake to improve the well-being of their members or communities. Networks, associations, non-governmental organisations, interest groups and movements come together to take forward their common interests through collective action. These groups often act as intermediaries between decision-makers and the public, offering an avenue for people to play an active role in seeking meaningful change or support good causes.’ See EESC, ‘EESC Achievements: Looking Back, Looking Forward 2018’, 11 September 2019. The research for this chapter was completed prior to the change of name of the EESC’s Group III from Diversity Europe Group to Civil Society Organisations’ Group.

252  James Organ and Nikos Vogiatzis The chapter also reflects on some of the challenges that arise from the EESC’s efforts to increase its influence over EU institutions and their decisions. This chapter argues that the ECI has been an important opportunity for the EESC to strengthen its influence in EU decision-making and reiterate its own commitment to citizen participation, which has underpinned its development as a political body. It is argued that the EESC has the potential to play an important part in bringing citizens closer to the EU through developing the participatory values of Article 11 of the Treaty on European Union (TEU). This may be accomplished via the EESC’s role as the voice of civil society, but also through initiatives, such as its involvement in the ECI, that would champion citizen participation in EU democratic governance. However, the EESC remains little known outside the ‘Brussels circle’: it is not classed as an EU institution, but as an EU advisory body and has limited influence over the institutions integral to the EU legislative process. Here the focus is on why the EESC’s role should be taken more seriously, and particularly on its value for EU participatory democracy, leaving aside the ‘how’4 and the ‘when’5 of its influence. We consider the value of EESC influence from the perspective of participatory democracy, and the impact that this has on its role and legitimacy. This analysis assumes that the EU wants to develop participatory democracy, at least in a broad and moderate sense,6 and reduce the distance between EU institutions and citizens.7 It rests on the normative assumption that participatory democracy is capable of achieving this, thereby enhancing EU democratic legitimacy. The chapter proceeds as follows. Section II focuses on Article 11 TEU and participatory democracy. Section III explores the main role and functions of the EESC. Section IV.A analyses the EESC’s promotion of the ECI and its role in the ECI process. Section IV.B analyses the implications for citizen participation and the EESC of changing its role with a focus on: (a) the distinction between citizen and civil society participation and, relatedly, the democratic representativeness of the EESC; and (b) inter-institutional engagement between the EESC and other EU institutions. The chapter concludes with remarks about the future of the EESC and the developing co-existence of EU participatory and representative democracy.

4 M Neshkova, ‘The Impact of Subnational Interests on Supranational Regulation’ (2010) 17 Journal of European Public Policy 1193. 5 C Hönnige and D Panke, ‘Is Anybody Listening? The Committee of the Regions and the European Economic and Social Committee and Their Quest for Awareness’ (2016) 23 Journal of European Public Policy 624. 6 That is, through opportunities with limited legal or policy impact. See G Busschaert, Participatory Democracy, Civil Society and Social Europe: A Legal and Political Perspective (Cambridge, Intersentia, 2018). 7 European Commission, ‘European Governance: A White Paper’ COM (2001) 428, 25 July 2001. See more recently European Commission, ‘White Paper on the Future of Europe’ COM (2017) 2025, 1 March 2017.

The Role of the European Economic and Social Committee  253

II.  Article 11 TEU and Participatory Democracy The introduction of Article 11 TEU to complement EU representative democracy with participatory democracy is a turning point for the EU and the EESC.8 The EESC had been marginalised for most of its early history,9 but Article 11, which gives participatory democracy a primary basis in EU law, helped change this. The EESC recognised the importance of Article 11 as a ‘milestone on the road to a people’s Europe that is real and feasible, where the public has genuine influence’.10 Of particular interest to the EESC are the references in Article 11 to representative associations and civil society, to consultation and dialogue, and the introduction of the ECI. Before developing the discussion about the specifics of Article 11, here we provide an understanding of participatory democracy. New normative conceptions of participatory democracy developed in the 1960s and 1970s in response to the prevailing elitist and pluralist versions of democracy, and against the political backdrop of the time. Writers such as Carole Pateman in the 1970s,11 and Jane Mansbridge12 and Benjamin Barber13 in the 1980s were often trying to address criticisms of the prevailing liberal representative democracy, such as the over-reliance on periodic elections to provide democratic legitimacy. They sought the development of democracy’s central virtues of participation, citizenship and political activity for citizens, and rejected the apathy that they saw as supporting the prevailing theories of democracy at the time. The strengthening of democratic participation is now an important part of democratic theory,14 and a number of theoretical approaches to participatory democracy have developed that prioritise different aspects of how the quantity and quality of citizen participation might be maximised.15 Although participatory democracy has been outshone by the rise of deliberative democracy during the first decades of the twenty-first century,16

8 LB García, Participatory Democracy and Civil Society in the EU: Agenda-Setting and Institutionalisation (Basingstoke, Palgrave Macmillan, 2015) 45. 9 S Smismans (ed), Civil Society and Legitimate European Governance (Cheltenham, Edward Elgar, 2006). 10 EESC, Opinion on ‘The Implementation of the Lisbon Treaty: Participatory Democracy and the Citizens’ Initiative (Article 11)’, CESE 465/2010, point 1.1. 11 C Pateman, Participation and Democratic Theory (Cambridge, Cambridge University Press, 1970). 12 J Mansbridge, Beyond Adversary Democracy (Chicago, University of Chicago Press, 1980). 13 B Barber, Strong Democracy: Participatory Politics for a New Age (Berkeley, University of California Press, 1984). 14 G Smith, Democratic Innovations: Designing Institutions for Citizen Participation (Cambridge, Cambridge University Press, 2009) 6. 15 Theo Schiller groups the approach to participatory democracy into five main strands: the civil society approach, co-operative democracy, deliberative democracy, applied models of participation and new technology approaches. See T Schiller, ‘Direct Democracy and Theories of Participatory Democracy: Some Observations’ in ZT Pállinger et al (eds), Direct Democracy in Europe: Developments and Prospects (Wiesbaden, VS Verlag für Sozialwissenschaften, 2007) 52. 16 A Floridia, From Participation to Deliberation: A Critical Genealogy of Deliberative Democracy (Colchester, ECPR Press, 2017).

254  James Organ and Nikos Vogiatzis the EU has bucked this trend of democratic theory by continuing to focus on citizen participation rather than deliberation.17 Participatory democracy is proposed in this chapter as a means of complementing the democratic legitimacy derived from representative democracy. The EU’s ‘striving’18 towards supranational democracy has been a gradual one that builds on existing democratic strengths. As Barber said, ‘strong democracy is a complementary strategy that adds without removing and reorients without distorting’.19 This attitude of building on the representative foundations of liberal democracy and developing newer forms of citizen participation to support it underpins Articles 10 and 11 TEU. Whilst the pre-eminence of the European Parliament (EP) in providing supranational democratic legitimacy under Article 10 is evident, we should not under-estimate the importance of the shift towards participatory democratic legitimacy that Article 11 represents. The essence of the distinction between participatory and representative institutions is the direct nature of participatory democracy, and the delegation of power implicit in representative forms of democracy. As the next section will illustrate, the EESC could be viewed as representative in nature (although not of course in the same way as the EP), but the degree of representativeness of its members and democratic credentials of the civil society that they give voice to are critical for its legitimacy. A principal challenge for proponents of participatory democracy over the years has been to find a way for these diffuse democratic spaces to co-exist with more traditional representative structures.20 The evidence in recent years is that the EESC offers a way to help achieve this. The ECI and the EESC both rely on the normative assumption that increased citizen participation in political dialogue and policy-making increases the legitimacy of a polity. The EESC relies on a civil society or corporatist approach to participatory democracy,21 whereas the ECI gives citizens a direct voice,22 albeit limited in impact, in the EU decision-making process. Both enable the participation of non-institutional actors in the policy and law-making processes,23 but the distinction between citizen and civil society participation is an important one. On the one hand, the ECI, EP petitions and EU public consultations are forms of participatory democracy that provide citizens with a direct opportunity to engage with EU decision-making. The EESC does not provide citizens with direct

17 The EU has also started engaging with deliberative democratic instruments. See more on this in ch 9 by James Organ in this volume. 18 G de Búrca, ‘Developing Democracy beyond the State’ (2008) 46(2) Columbia Journal of Transnational Law 221. 19 Barber (n 13) 309. 20 Floridia (n 16) 31–32. 21 Schiller (n 15). 22 Nevertheless, civil society has an important role in the ECI too. See more on this in ch 3 by Luis Bouza García in this volume. 23 J Mendes, ‘Participation and the Role of Law after Lisbon: A Legal View on Article 11 TEU’ (2011) 48 CML Rev 1849.

The Role of the European Economic and Social Committee  255 engagement; rather, it provides civil society organisations (CSOs) with a forum for their representatives to engage with EU policy-making, and even then the EESC only has a limited right to be consulted by the other EU institutions. This chapter argues that the EESC nevertheless promotes the broader concept of citizen participation through its role as a bridge between civil society and EU institutions. It has been observed that ‘“real” participation (participation that is ‘truly effective’) is tied to the decision-making nature of the participatory process’.24 Effective citizen participation must have a genuine impact on, and challenge existing preferences within, the EU political agenda and its law and policy outcomes.25 Participation thus has three principal components: political debate and dialogue in general; mechanisms to influence the political agenda; and influence over the final policy and legislative decisions that removes the discretion of political institutions to some degree. Article 11 does not implement this type of effective participation, but a more moderate form of participatory democracy where citizen participation has a limited impact on the discretion of EU institutions. We see this limited approach to citizen participation in the EESC’s weakness as the ‘voice of civil society’ and in the legislative design of the ECI. The imperfectly worded26 Article 11 TEU does not refer specifically to participatory democracy, but implements key aspects of it. Article 11(1) and (2) focuses on opportunities for public debate and dialogue. For some, the wording of the first two paragraphs presents striking similarities, and civil society in the second paragraph could include citizens as well.27 For others, the first paragraph mainly accentuates the importance of horizontal dialogue and the second one that of vertical dialogue.28 To that end, and according to the latter reading of Article 11, there must be opportunities for citizens and representative organisations to enter into a dialogue about all areas of EU action, and Article 11(2) requires institutions to engage in dialogue with representative organisations and civil society, but not with citizens. It is this engagement with representative organisations and civil society that most closely links the EESC with Article 11. Article 11(3) requires the use of consultations,29 but is addressed only to the Commission. However, in a broader sense, the explicit reference to consultations in the Treaty is of relevance

24 Floridia (n 16) 38. 25 J Organ, ‘EU Citizen Participation, Openness and the European Citizens Initiative: The TTIP Legacy’ (2017) 54 CML Rev 1713; A Alemanno and J Organ (eds), Citizen Participation in a Democratic Europe: What Next for the EU? (Lanham, MD, Rowman & Littlefield/Colchester, ECPR Press, 2021). This is developed from the democratic criteria presented in R Dahl, Democracy and its Critics (New Haven, Yale University Press, 1989). 26 Mendes (n 23) 1852. 27 ibid. 28 C Marxsen, ‘Participatory Democracy in Europe: Article 11 TEU and the Legitimacy of the European Union’ in F Fabbrini et al (eds), What Form of Government for the European Union and the Eurozone? (Oxford, Hart Publishing, 2015). 29 See, eg, R Kies and P Nanz (eds), Is Europe Listening to Us? Successes and Failures of EU Citizen Consultations (Farnham, Ashgate, 2013).

256  James Organ and Nikos Vogiatzis to the EESC, which, as the next section explains, plays a crucial consultative and advisory role. It could be argued that the first three paragraphs of Article 11 TEU formalise existing practice in the EU, particularly regarding the Commission. Even before the Lisbon Treaty, the Commission engaged in public consultations and civic dialogue within and beyond the legislative process, admittedly with varying degrees of success. In addition, the EESC has always been encouraging of such practices, and acted as a bridge between EU institutions and CSOs. However, the democratic value of these provisions is that they explicitly include participatory democracy as part of EU legitimacy, and that they explicitly link participation to democracy. As Joana Mendes said about Article 11: ‘It entails a distinct transformation in the way of perceiving participation in the EU. For the first time at Treaty level, participation in decision making beyond political representation is explicitly linked to democracy … it can no longer be approached merely as an aspect of process efficiency and policy outputs, detached from democratic values.’30 Crucially, the first two paragraphs are addressed to all EU institutions, and this raises a plethora of issues and questions about the extent of their obligations to engage with citizens and civil society.31 Requirements for dialogues and consultations within the EU support the role of the EESC and strengthen civil society and citizen policy engagement, but they do not specifically strengthen citizen or civil society impact on policy or law outcomes. Without further change in institutional practices, EU dialogues and consultations remain at the level of tokenism in Arnstein’s ladder of participation.32 Conversely, the ECI has the potential to enable citizens to have a direct impact on policy-making and delegate some power away from EU institutions,33 albeit merely as an agenda-setting instrument that has weak formal influence over EU institutional decision-making. Article 11(1)–(3) TEU is directly beneficial to the consultative/advisory role of the EESC as the house of organised civil society and civil dialogue. The relevance of the ECI to the EESC is less direct, because it is in principle an instrument for citizen participation rather than civil society participation,34 and it is designed for promoting specific citizen interests rather than sectoral or economic interests agreed in the EESC by consensus.35 30 Mendes (n 23) 1850. 31 See further: N Vogiatzis, The European Ombudsman and Good Administration in the European Union (Cham, Palgrave Macmillan, 2018) 268–279. 32 SR Arnstein, ‘A Ladder of Citizen Participation’ (1969) 35 Journal of the American Institute of Planners 216. 33 A Karatzia, ‘The European Citizens’ Initiative and the EU Institutional Balance: On Realism and the Possibilities of Affecting EU Lawmaking’ (2017) 54 CML Rev 177; N Vogiatzis, ‘Between Discretion and Control: Reflections on the Institutional Position of the Commission within the European Citizens’ Initiative Process’ (2017) 23 European Law Journal 250. 34 However, citizens can only invite the Commission to propose EU legislation, but they cannot propose legislation themselves. 35 See also on this point C Hönnige and D Panke, ‘The Committee of the Regions and the European Economic and Social Committee: How Influential are Consultative Committees in the European Union?’ (2013) 51 Journal of Common Market Studies 452, 454.

The Role of the European Economic and Social Committee  257 In principle, as a participatory instrument, the ECI delegates some degree of power to citizens, whereas the EESC only offers citizens the chance to engage in a consultative or advisory process through civil society representatives. However, CSOs recognise the value of participatory democracy and their involvement is crucial for the success of the ECI,36 so in practice, an ECI will usually need to engage with CSOs to succeed.

III.  The Role of the EESC in the EU Institutional Setting The EESC is an EU advisory body that was established by the Treaty of Rome of 1957 and that became operational in 1958. Article 13(4) TEU now specifies that the ‘European Parliament, the Council and the Commission shall be assisted by an Economic and Social Committee and a Committee of the Regions (CoR) acting in an advisory capacity’. However, the two advisory bodies do not have the status of an institution.37 The EESC was based on similar committees in five of the founding Member States,38 and was set up to give social and economic interest groups a place in EU governance. The influence of the EESC was slow to develop in the first few decades, with interest groups not perceiving it to be of value and the Council of Ministers being reluctant to allow its development. Despite the significant step of giving the EESC the right to issue own-initiative opinions from 1972, Lodge and Herman, writing in 1980, described the EESC’s role in decision-making as ‘invisible’ and that it was ‘in danger of becoming obsolete’.39 The EU’s focus then turned to the EP as the institution to represent EU citizens in the legislative process, further sidelining the EESC. While the Maastricht and Amsterdam Treaties strengthened the EESC,40 it was not until the turn of the twenty-first century that the EESC started gaining more significance. This was reflected in the EESC’s shift away from focusing solely on socioeconomic interests towards devoting greater attention to citizen participation through promoting the interests of organised civil society. The EESC successfully refashioned its institutional role by taking advantage of the growing general concern about the EU democratic deficit and, more specifically, the value given 36 See, eg, J Greenwood, ‘The European Citizens’ Initiative and EU Civil Society Organisations’ (2012) 13 Perspectives on European Politics and Society 325. 37 Article 13(4) TEU. For the EESC, if further authority for this claim is required, see also Case T-117/08, Italy v EESC, EU:T:2011:131, paras 29–31. 38 M Westlake, ‘The Antecedents, Origins and Creation of the European Economic and Social Committee’, Bruges Political Research Paper No 52, May 2016. 39 J Lodge and V Herman, ‘The Economic and Social Committee in EEC Decision Making’ (1980) 34 International Organization 265, 266–67. 40 M Westlake, ‘The European Economic and Social Committee’ in D Coen and J Richardson (eds), Lobbying the European Union: Institutions, Actors, and Issues (Oxford, Oxford University Press, 2009) 128.

258  James Organ and Nikos Vogiatzis to participatory democracy, consultation and citizen participation through civil society, which culminated in Article 11 TEU. It did this by emphasising its role as the bridge to and voice of civil society. As well as developing this role, the EESC also promoted participatory democracy – as it did, for example, in the run-up to the Convention on the Future of Europe in 2003. This dual role of promoting civil society interests and participatory democracy in general provides the EESC with the potential to be an important political body in the EU’s ongoing efforts to enhance its democratic legitimacy. The EESC’s main function is to deliver opinions to the EU legislature, which may be considered before draft legislation becomes binding law. Article 304(1) of the Treaty on the Functioning of the European Union (TFEU) provides further detail about the EESC’s advisory role: The Committee shall be consulted by the European Parliament, by the Council or by the Commission where the Treaties so provide. The Committee may be consulted by these institutions in all cases in which they consider it appropriate. It may issue an opinion on its own initiative in cases in which it considers such action appropriate.

Thus, the EESC’s non-binding opinions can be classified as ‘mandatory’ (where the Treaties explicitly require its involvement), ‘optional’ (where the three EU institutions responsible for the initiation or adoption of legislation deem it appropriate) and ‘own-initiative’ opinions (where the EESC itself deems it appropriate to intervene).41 Importantly, however, although established Court of Justice of the European Union (CJEU) case law implies that the EESC should be consulted where the Treaties so provide,42 the aforementioned EU institutions do not have a duty to ‘discuss [the opinions] or take a formal vote on them’,43 even where EESC opinions are mandatory. This limits the possible influence of the EESC in the EU law-making process. The strongest influence of the EESC seems to come with its use of own-initiative opinions.44 The opinions on the ECI, which are discussed later, are important examples. The EESC’s own mission statement is broadly articulated and shows a clear focus on advancing participatory democracy and the role of CSOs.45 In that sense, the EESC primarily understands participatory democracy as a system that would enable the voice of organised civil society to be heard in EU decision-making. This is evident from its composition and the interests that it seeks to represent: the EESC currently has 329 members, who are appointed by the Council on the basis of a proposal by Member States. Their term is for five years, which can be renewed.46 They belong to one of the following three groups: the Employers’ Group,



41 This

appears to be the terminology used by the EESC. See, eg, EESC, ‘Annual Report 2018’, 51 ff. 138/79, Roquette Frères v Council, EU:C:1980:249, paras 32–37 (with reference to the EP). 43 Hönnige and Panke (n 5) 626. 44 ibid 630. 45 See www.eesc.europa.eu/en/about. 46 ibid. 42 Case

The Role of the European Economic and Social Committee  259 the Workers’ Group (mainly trade unions) and the Civil Society Organisations’ Group,47 which indicates a broad conception of civil society.48 The focus on participatory democracy is explicit in the motto of the Civil Society Organisations’ Group, whose stated aim is ‘to truly strengthen participatory democracy across the European Union.’49 The TFEU makes clear that EESC members should be completely independent in the performance of their functions and that they should serve the EU’s general interest.50 Nevertheless, they are not employed by the EU, nor do they work there exclusively; they do not receive a salary from the EU, but only ‘an allowance when on Committee activities’ and for their travel expenses.51 When an opinion is requested by EU institutions, or when the EESC has decided to draft an own-initiative opinion, this will be assigned to and prepared by one of its six sections52 or the Consultative Commission on Industrial Change. Once the opinion has successfully been debated and passed through the responsible section, it is then adopted (or rejected) by the plenary by a simple majority.53 If accepted, it becomes the EESC’s formal opinion and is then submitted to the EU institutions. Interestingly, the preamble to the EESC Rules of Procedure openly admits that the interests represented by the EESC can often be ‘diametrically opposed’ and this concerns not only employers and employees, but also ‘the other socio-occupational interests represented’ by the Civil Society Organisation’ Group.54 However, this challenge is viewed by the EESC as an opportunity for negotiation and dialogue that ‘may improve the quality and credibility of the European Union decision-making process, inasmuch as they make it more comprehensible and acceptable for Europe’s citizens and increase the transparency which is so vital for democracy’.55 Despite its presence in the EU’s governance system for over 60 years, with powers which have progressively increased,56 the EESC remains relatively

47 This latter group ‘ensures that the Committee is a dynamic force and is empowered to give full voice to the concerns of the various economic, social, occupational and civil organisations that make up civil society in the Member States’. See: EESC, Civil Society Organisations’ Group, www.eesc.europa. eu/en/members-groups/groups/civil-society-organisations-group. 48 B Kohler-Koch and C Quittkat, ‘What is Civil Society and Who Represents it in the European Union?’ in U Liebert and H-J Trenz (eds), The New Politics of European Civil Society (Abingdon, Routledge, 2010). 49 See www.eesc.europa.eu/en/members-groups/groups/civil-society-organisations-group. 50 See Article 300(4) TFEU. 51 Westlake (n 38) 133. 52 These are: Economic and Monetary Union, Economic and Social Cohesion; the Single Market, Production and Consumption; Transport, Energy, Infrastructure and the Information Society; External Relations; Agriculture, Rural Development and the Environment; and Employment, Social Affairs and Citizenship. 53 See Rules 37 (on the work of the sections) and 61(2) (on voting) of the EESC’s Rules of Procedure of March 2019. 54 ibid Preamble (point 2). This reflects the broad conception of civil society employed by the EESC. See Kohler-Koch and Quittkat (n 48). 55 ibid. 56 Westlake (n 38) 128. Two such moments of increasing powers can be identified: the faculty to prepare own-initiative opinions, granted to the EESC in 1972; and the institutional and budgetary autonomy further to the Maastricht Treaty in 1993 (ibid 129).

260  James Organ and Nikos Vogiatzis unknown outside the so-called ‘Brussels bubble’.57 Equally, the EESC has been the subject of very limited scholarly research, particularly legal scholarship, where the first account on the legal position of the EESC is yet to be produced. Accounts focusing on the EESC, either exclusively or in conjunction with the Committee of the Regions as the other consultative body mentioned in Article 13(4) TEU, seek to provide an overview of its evolution and key functions.58 It has been shown that the EESC’s work struggles to get the attention of the EP and the Council, and, in order for such attention to increase, the EESC should become more proactive, notably by ‘organising workshops and attending hearings or conferences’.59 More optimistic accounts underline the potential of the EESC as a ‘functional assembly’ that could enhance deliberative democracy in the EU.60 Thus, post-Lisbon, the ECI and other aspects of Article 11 TEU gave the EESC an opportunity to enhance its role and develop EU citizen participation. Using the ECI as a case study, the rest of this chapter explores the extent to which the EESC has taken this opportunity and the impact that this has had on participatory democracy.

IV.  Could and Should the EESC Play a More Meaningful Role in the ECI Process? While the ECI is analysed in greater detail elsewhere in this volume,61 the subsections below focus specifically on the contribution of the EESC to the ECI debate.

A.  The EESC’s Contributions and Proposals for the ECI The EESC has played a crucial role in promoting the ECI as an instrument of participatory democracy. This is evidenced, for example, by the well-attended annual ECI Days, which have involved the participation and contribution of various stakeholders, representing a wide range of CSOs, and including senior EU political figures, such as the then Commission Vice-President Frans Timmermans, Members of the European Parliament (MEPs), the European Ombudsman and others. The EESC

57 See, eg, J Greenwood, Interest Representation in the European Union (Basingstoke, Palgrave Macmillan, 2017) 47, arguing that the EESC’s ‘advisory powers always make for a marginal position among EU institutions’. 58 Westlake (n 38). 59 Hönnige and Panke (n 5) 625. 60 S Smismans, ‘The European Economic and Social Committee: Towards Deliberative Democracy via a Functional Assembly’ (2000) 4 European Integration online Papers, eiop.or.at/eiop/pdf/2000-012. pdf. Elsewhere, he pointed out that the EESC has used the concepts of civil society and civil dialogue as ‘a tool to redefine its proper role and combat the risk of marginalisation within the European institutional set-up’. See S Smismans, ‘European Civil Society: Shaped by Discourses and Institutional Interests’ (2003) 9 European Law Journal 473, 484. 61 See ch 11 by Mario Mendez and ch 12 by Jasmin Hiry-Lesch in this volume.

The Role of the European Economic and Social Committee  261 furthermore has published a guide to the ECI62 and a ‘European passport to active citizenship’ (subsequently renamed European Democracy Passport),63 and has helped ECI organisers with the translation of proposed initiatives. Particularly in recent years, the EESC has sought to contribute to the ECI process through the roles of facilitator and institutional mentor. More specifically, the EESC sees its role as ‘facilitator for emerging initiatives, providing a platform for dialogue and information, bringing together the organisers involved, or hosting meetings, in its role as the home of civil society’, and as ‘institutional mentor, offering the Commission its assistance in the evaluation phase of a successful ECI, by jointly organising a public hearing and/or drawing up an opinion in time for the Commission’s evaluation, as part of its normal consultative role’.64 It follows that the facilitator role primarily concerns the period before and after the registration of an ECI up until the conclusion of the collection of signatures, while the institutional mentor role covers the period after the submission of signatures to the Commission and until its ‘communication’ under Article 15(2) of Regulation 2019/788. In the four opinions presented below, the EESC has provided further justification of these claims. One of the common threads of these Opinions is that the ECI process entails a conflict of interest for the Commission. This is presented in several different forms: it could be that the Commission decides on the legal merits of an ECI at the admissibility stage and on the political merits of a successful ECI; it could be that there is a conflict between the Commission’s admissibility decision and the support that it provides to organisers up to and after registration; and it could be that there is a potential conflict for the Commission (according to the EESC at least) between facilitating the ECI process after registration and being the institution that decides on the political merits of a successful ECI. The strength of the proposition that there is a conflict of interest for the Commission is not evaluated here, and views vary as to whether there is one, but even if one were to doubt whether the term ‘conflict of interest’ is appropriate, it is undeniable that the ECI operates under the full control of the Commission, effectively at all stages of the process. Let us now consider the four EESC Opinions in further detail. The first Opinion was an own-initiative Opinion on participatory democracy and Article 11 TEU from March 2010, which took into account the Commission’s Green Paper on the ECI.65 The EESC made it clear that it was committed to making a ‘tangible contribution’ to the ECI.66 In disagreement with the EP, it argued that the ECI process should not be monitored by the EP or the EU legislature more generally as this would violate the separation of powers; rather, it called 62 The guide is currently in its third edition, which was completed in 2015, but one assumes that a revised version will follow soon which will take into account the revised ECI Regulation. See: www.eesc.europa.eu/sites/default/files/resources/docs/en_15_577-citizens-initiative.pdf. 63 See: www.eesc.europa.eu/sites/default/files/resources/docs/15_223-citizenship-passport-en.pdf and www.eesc.europa.eu/sites/default/files/files/en_edp_20_167_0.pdf. 64 See: www.eesc.europa.eu/en/initiatives/european-citizens-initiative. 65 EESC (n 10). 66 ibid point 1.6.

262  James Organ and Nikos Vogiatzis for independent monitoring with the EESC expressing preparedness to undertake the role of an independent ‘advisory body’ or ‘helpdesk’.67 The EESC also proposed the following measures: to draft an opinion on successful ECIs to be submitted to the Commission within the deadline available to the Commission to issue its communication; to provide an opinion on ongoing ECIs; and to organise hearings that would involve the EP, the Council and the Commission.68 The second Opinion concerned the proposal for the first ECI Regulation (namely Regulation 211/2011) and was completed in July 2010.69 Therein, the EESC reiterated the proposal that it could organise a hearing or be involved in its organisation as ‘a bridge between the EU and the public’.70 In addition, it was mentioned that the Commission’s communication on the follow-up to successful initiatives should also be communicated to the EESC and the Committee of the Regions.71 More importantly, the EESC’s strategy of acting as the ECI facilitator and institutional mentor was outlined, and is now the EESC’s official position on the ECI.72 The third Opinion was adopted in 2016 as an own-initiative Opinion aimed at addressing ‘significant technical, legal and bureaucratic problems’ identified with the ECI Regulation 211/2011, and it clearly stated that ‘the ECI had not reached its full potential’.73 The Opinion made some strong recommendations to enhance the ECI’s impact. For example, it proposed that the Commission should guarantee some form of appropriate follow-up within 12 months of a successful ECI and, if this does not happen, that the EP could use Article 225 TFEU to put pressure on the Commission to make a proposal.74 In terms of its own role, the EESC clarified that it should participate in EP hearings on successful ECIs and underlined some of the steps that it had taken to promote the ECI: the ECI Day, the active citizenship passport and the ECI guide.75 The following proposal was also submitted: [T]he EESC proposes to set up an institutional forum on the participation of European citizens, to become a permanent platform for discussion and debate at the Committee along the lines of the European Migration Forum, building on European Citizens’ Initiative Day. In order to guarantee the participation of highly qualified speakers, the EESC would also invite institutional representatives with a stake in this issue, one representative per citizens’ committee with a registered initiative and all interested stakeholders.76 67 ibid point 4.4.4. This was further explained in point 4.12.3: ‘the [EESC] feels that initiators of citizens’ initiatives should also have access to a contact point providing advice not only on procedural questions but also on substantive issues. The [EESC] is willing to act as a “helpdesk” here’. 68 ibid point 5.7. 69 EESC, Opinion on the ‘Proposal for a Regulation of the European Parliament and of the Council on the Citizens’ Initiative’, SCO/001, 14 July 2010. 70 ibid point 3.8.2. 71 ibid point 3.8.3. 72 ibid points 4.3.1–4.3.2. 73 EESC, Opinion on ‘The European Citizens’ Initiative (Review) (Own-Initiative Opinion)’, 2016/C 389/05, 21 October 2016. 74 ibid point 6.1.6 75 ibid points 4.2.1–4.2.7. 76 ibid point 6.4.

The Role of the European Economic and Social Committee  263 This Opinion also restated the belief that there was a potential conflict of interest inherent in the Commission’s role to both support ECI organisers and assess the merits of a successful ECI. These roles as ‘institutional mentor and judge’ should, according to the EESC, be separated and the EESC would be a ‘natural candidate’ to take them on.77 The fourth Opinion was adopted in 2018 and addressed the revised ECI Regulation.78 Concerns were raised about the potential for conflict of interest as the Commission decides on ECI admissibility, but also acts as an institutional mentor. However, the new ECI Regulation renders the admissibility stage somewhat more flexible, for instance by allowing both revision and resubmission of proposals and partial registration.79 The 2018 Opinion recommended separating the facilitating and institutional mentor roles, reiterating the EESC’s willingness to continue supporting initiatives and reaffirming the view that the EESC is a natural candidate for both roles.80 Importantly, the EESC backtracked on an earlier suggestion that it could host the ECI hearing, accepting that this should be left to the EP.81 In addition, the EESC offered to monitor the Commission’s follow-up to successful ECIs,82 to invite organisers of ECIs falling within the EESC’s remit to present the initiatives at its premises83 and to always prepare an own-initiative report for successful ECIs when this falls within its remit.84 The new ECI Regulation, which has applied since 1 January 2020, enhances the entitlements of the EESC in several ways: (a) the new procedure for registration specifies that the Commission shall inform the EESC of the registration of an initiative,85 and the successful collection of statements of support;86 (b) the EESC, alongside other EU institutions and bodies, should be given the opportunity to attend the hearing at the EP;87 and (c) the EESC will henceforth be notified of the Commission’s communication containing the latter’s legal and political conclusions.88 In this way, the EESC is part of the dialogue at all stages of an ECI, and there is now an expectation of inclusion and information. The Regulation also responds to several other EESC recommendations to improve the support or design of the ECI. For example, the Commission now provides a guide to the ECI and translation services for organisers,89 which had been offered by the EESC

77 ibid points 6.1.5 and 6.1.5.1. 78 EESC, Opinion on the ‘Proposal for a Regulation of the European Parliament and of the Council on the European Citizens’ Initiative’, 2018/C 37/74, 14 March 2018. 79 Article 6(3–7) of Regulation 2019/788. 80 EESC (n 78) point 1.5.1. 81 ibid point 1.5.5. 82 ibid point 4.2.1. 83 ibid point 4.2.3. 84 ibid point 4.2.4. 85 Article 6(8) of Regulation 2019/788. 86 Article 14(1) of Regulation 2019/788. 87 ibid Article 14(2). 88 ibid Article 15(2). 89 ibid Article 4.

264  James Organ and Nikos Vogiatzis since 2015. However, the Commission remains as both institutional mentor and facilitator, and political and legal decision-maker during the ECI process. The following section evaluates whether the EESC would be the ‘natural candidate’ to lead on the ECI institutional mentor and facilitator roles instead of the Commission, and the implications thereof for EU participatory democracy.

B.  The EESC as ECI Facilitator and Institutional Mentor: An Evaluation The above EESC Opinions demonstrate how keen this EU body is to be involved in the ECI, and where it sees its role being focussed and developed. Through the above activities, the EESC has raised the profile of the ECI as a means of enhancing citizen participation and participatory democracy. Simultaneously, the rights related to information and participation at the ECI hearing suggest that these efforts helped to strengthen the EESC’s institutional role. However, while the ongoing contribution of the EESC is now acknowledged in legislation, the latter does not assign the roles of ECI facilitator and institutional mentor to the EESC. In fact, the Commission has taken on more of the facilitation, such as translation services. It should also be noted that, particularly during the first years of the ECI’s operation, the Commission was willing to offer practical help of this sort to organisers. The following evaluation of whether the EESC should be the ECI facilitator and/ or institutional mentor focuses on two principal issues: (a) the distinction between citizen and civil society participation and, relatedly, the democratic representativeness of the EESC; and (b) inter-institutional engagement between the EESC and other EU institutions.

i.  Citizen and Civil Society Participation and Democratic Representativeness The EESC is, or at least views itself as, the home of civil society. As ECI facilitator and institutional mentor, one could argue that the EESC would be taking on roles that it has already partially taken on itself. However, several objections can be submitted against the EESC’s claim to be the natural candidate for the roles of ECI facilitator and institutional mentor. First, the ECI has not been designed as an instrument open only to organised civil society. In fact, the ECI is mentioned in the provisions on EU citizenship,90 and the European Court of Justice has inter alia confirmed that the ‘right to undertake an ECI constitutes … an instrument concerning the right of citizens to participate in the democratic life of the Union, provided for in Article 10(3) TEU’.91

90 Article 91 Case

24 TFEU. C-418/18 P, Puppinck and Others v Commission, EU:C:2019:1113, para 54.

The Role of the European Economic and Social Committee  265 This does not mean that organised civil society has not boosted the prospects of this instrument or that, quite pragmatically, it is better placed to use its networks and resources to mobilise citizens with a view to successfully collecting the required number of signatures.92 However, strengthening the role of the EESC might increase the sense of confinement of the ECI to organised civil society and perhaps contradict the message from the ECI Regulation that this tool is a European Citizens’ Initiative, enabling everyone, regardless of their association with specific organisations, to support and be involved in a campaign. Second, the content of an ECI is clearly not confined to the remit of the EESC, which is something that the EESC appears to acknowledge by claiming to issue own-initiative Opinions only on those successful ECIs that fall within its remit. If so, the question emerges as to why, in instances where the proposal does not fall within its area of work, the EESC should be considered a ‘natural candidate’ to act as an institutional facilitator and mediator as opposed to performing these roles voluntarily, which is already the practice. Third, if the Commission were to lose its ECI roles as facilitator and/or institutional mentor (on which matter the authors do not express an opinion here), one can reasonably ask whether these roles should not be attributed to the EP instead of the EESC.93 EU citizens democratically legitimise the EP through voting for MEPs, whereas the EESC is merely indirectly legitimised through civil society representatives. The difference between the legitimacy bases of the two assemblies, which are both representative to some degree,94 is central to considering whether the EESC or the EP should be the ECI facilitator and/or institutional mentor. The EESC has worked to increase the representativeness of its members over the years. The introduction of the Liaison Group in 2004 was a notable step.95 This group intends to be a formal emanation of the promises for horizontal and vertical dialogue between civil society and EU institutions that are envisaged in Article 11 TEU. It describes itself as providing CSOs with ‘their only institutional bridge to the EU institutions’. As such, it aims to strengthen the voice of EU civil society, promote participatory democracy and increase the representativeness of the EESC. There have also been efforts to strengthen the quality of civil society engagement by increasing the deliberative value of forums such as the European Migration Forum. That being said, the very limited role of the EP in the ECI is a rather ­striking feature of the instrument,96 not least because of the EU’s commitment to dual legitimacy, in which the EP represents EU citizens and the Council represents

92 See, eg, Greenwood (n 36). 93 The Council is discounted as its basis for legitimacy is intergovernmental in nature, whereas the EP is supranational in nature. 94 The EESC is different from parliamentary assemblies in terms of composition, appointment, ­interest representation and other aspects. See, eg, Smismans (n 9). 95 See: www.eesc.europa.eu/en/sections-other-bodies/other/liaison-group. 96 See Vogiatzis (n 33) 265–66.

266  James Organ and Nikos Vogiatzis the Member States.97 However, following the EESC proposal to organise hearings for successful ECIs, the EP stated that it alone should be organising them and the EESC backed down. Equally, the EESC’s argument about institutional balance, which was also directed at the EP, could have been articulated more clearly, because the Treaties entitle the EESC to submit Opinions in many areas of EU legislative action, but do not give it any further formal role in the law-making process, including in the monitoring of the political work of the EP. Due to its place in the institutional framework and its role as co-legislator, a stronger role for the EP would also strengthen the likely impact of the ECI as a democratic instrument. This is attractive both in normative, democratic terms and to campaigners in practical terms if one believes that successful ECIs should have greater impact on EU law and policy. One may also ask, assuming that the Commission should not have either of them, whether the roles of ECI facilitator and institutional mentor could be split. The EESC would undertake the former, which is more focused on practical support for civil society and citizens. The institutional mentor role, which is more focused on the design and impact of the ECI, could be reserved to the EP as EU co-legislator. Of course, what providing ‘assistance in the evaluation phase of an ECI’98 would entail is a matter that requires further analysis, not least in terms of the democratic legitimacy of the EP and the EESC, but is a path of enquiry that is beyond the scope of this chapter. Assigning the role of ECI facilitator exclusively to the EESC would have to satisfactorily address the aforementioned challenges about the ECI being a citizen-centred rather than a civil-society-centred i­nstrument, and the fact that there could well be ECIs falling outside the remit of the EESC.

ii.  The EESC’s Inter-institutional Engagement with Other EU Institutions Central to the efforts by the EESC to increase its influence, and therefore the influence of CSOs, on EU law and policy is the formalisation of inter-institutional engagement between the EESC and EU institutions. The EESC signed formal cooperation agreements with the European Commission in 201299 and with the EP in 2014.100 The EESC has limited formal political power, but the strengthening of the EESC’s role in the EU legislative process through increased and more frequent inter-institutional engagement goes some way towards compensating for this by increasing its ‘soft power’ to influence EU law and policy. The evolving

97 See Article 10(1)–10(2) TEU. 98 See: www.eesc.europa.eu/en/initiatives/european-citizens-initiative. 99 Protocol on Cooperation between the European Commission and the European Economic and Social Committee, 22 February 2012. An updated version of the Protocol was agreed in October 2022, but was not yet published at the time of writing this chapter. 100 Cooperation agreement between the European Parliament and the European Economic and Social Committee, 5 February 2014.

The Role of the European Economic and Social Committee  267 role of the EESC in the ECI, which has the potential to influence the initiation of the legislative process, is an important example of this development. If the EESC is representative of citizens through its engagement with civil society, and participatory democracy is important for EU democratic legitimacy, as indicated in Article 11 TEU, then should the EESC have greater influence on the legislative process? Some have gone as far as to argue that the EESC should be able to veto legislation that its members do not approve of,101 but even if this is seen as a step too far, and the EP is likely to think so, there are numerous other ways to give the EESC a stronger influence on the legislative agenda and move it up from the tokenism rung of Arnstein’s participation ladder.102 Furthermore, the link between the EESC and EU Member States is relevant here in light of the EU’s dual legitimisation. The 329 EESC members are nominated by national governments and approved by the Council, but they are expected to perform their role in the interests of all EU citizens. Does this mean that the EESC offers anything that the EP does not in terms of the balance between the supranational and intergovernmental legitimisation of the EU, which would perhaps justify a stronger role for the EESC as the ECI institutional mentor? In 2004, the EESC decided to engage more meaningfully with European CSOs rather than with Member State organisations,103 hoping to increase its influence and visibility.104 This was a pivotal moment in the EESC’s strategy to be one of the EU bodies that would facilitate and campaign for enhanced transnational citizens’ participation in the EU, such as through the ECI. If the CSOs that make up the EESC are strongly representative of their members’ interests as both Member State and EU citizens, then there would be an argument that the EESC should be given part of the institutional mentor role, which would give it some further impact on the EU legislative process. Conversely, if the CSOs that make up the EESC are still too Member State-based, then the claim to supranational legitimacy is not strong enough for the EESC to more strongly complement the EP in the EU legislative process. In addition, the strengthening of the link with CSOs primarily constitutes a strategic and more recent choice of the EESC to increase its influence, rather than a competence assigned to it via Treaty reform. Thus, the extent to which the EESC adds to the EU’s legitimisation – and, consequently, the extent to which this could be further reflected in the legislative process – remains an open, yet valid, question, on which further research is needed.

101 H Abromeit, ‘How to Democratise a Multi-level, Multi-dimensional Polity’ in A Weale and M Nentwich (eds), Political Theory and the EU: Legitimacy, Constitutional Choice and Citizenship (London, Routledge, 1998). 102 Arnstein (n 32). 103 Conversely, because of the appointment of members by the Council further to nomination by Member States, the EESC has ‘links to national civil society in a way in which no other organization does’. See Greenwood (n 57) 47. 104 ibid 131.

268  James Organ and Nikos Vogiatzis Lastly, the EESC proposed to further institutionalise fora that would debate and promote the ECI.105 Although the precise content of this proposal is as yet unknown, one should be mindful that one of the key criticisms of the ECI process was that it was too burdensome for organisers and citizens. Many of the EESC’s Opinions reflect these concerns. If so, a balance has to be found between, on the one hand, adding institutional layers to the process, and, on the other hand, ensuring that ECI organisers have sufficient and appropriate opportunities to present their initiative and gain support among key EU stakeholders, which was the likely motivation behind the proposal for the EESC’s institutionalisation. In any case, the new ECI Regulation ‘extends’ the hearing invitation to the EESC, while the information rights that the EESC is granted should enable it to continue the existing work of promoting the significance of the ECI as a tool of citizen participation. As already noted, the discussion of the possible role of the EESC in the ECI process begs broader questions about the role of this body in the EU legislative process and its contribution to EU democratic legitimacy. Strengthening the institutional engagement of the EESC would give specific sectoral interests a greater chance to challenge EP decision-making. Increased contestation in EU policymaking could in turn enhance the indirect representation of citizen interests and greater politicisation of EU-level issues, which is important for driving citizen interest and further participation.106 If one accepts the need for a plurality of approaches to democratic legitimisation and for an openness to developing and complementing modes of citizen participation, then this indicates the value of further analysing the role of the EESC. A systemic view of how democratic criteria are met in the EU’s institutional structure would explore the strengths and weaknesses of the different institutions and how they can engage to maximise democratic legitimacy.107 In this chapter, we have only considered participatory democracy and effective citizen participation, but there are other important democratic values, such as inclusion and deliberation,108 and other democratic instruments, such as public consultations,109 that should be analysed in relation to the contribution of the EESC. If the EESC can bring something extra to EU democracy, then the other institutions should decide how best to incorporate it into the EU institutional system, and not view a rise in the EESC’s political influence as an inevitable, zerosum game that reduces political influence elsewhere. A key consideration is the degree to which the EESC derives democratic legitimisation through the CSOs from which its members are drawn.

105 EESC (n 78). 106 S Hix, What’s Wrong with the European Union and How to Fix it (Cambridge, Polity Press, 2008). 107 Alemanno and Organ (n 25). 108 See a classic discussion of the democratic criteria in Dahl (n 25). 109 EESC, ‘EU Public Consultations in the Digital Age: Enhancing the Role of the EESC and Civil Society Organisations’, 20 November 2017.

The Role of the European Economic and Social Committee  269

V.  Concluding Remarks Promoting the ECI and participatory democracy has principled and strategic value for the EESC. It strengthens the voice of civil society, which is the central mission of the EESC, and provides a platform for the EESC to argue for the strengthening of its institutional role. Having done this with some success, the EESC is not the marginalised committee that it once was. It plays an active role in EU decisionmaking and does have some, albeit limited, influence over policy, as exemplified by the implementation of some of its proposals for change to the ECI Regulation.110 Continued EESC support for the ECI to have a stronger impact on EU decisionmaking, and EESC claims, albeit not uncontested, to be the ECI facilitator and institutional mentor appear to be avenues to continue to push for the evolution of the EESC’s inter-institutional engagement and its influence on the EU legislative process. The ECI is not the only form of citizen participation through which the EESC seeks to achieve its ambitions and promote participatory democracy. For example, in its contribution to the European Commission’s 2021 work programme, which is one of the EESC’s most important contributions to EU policy each year, the EESC recommends that the ‘Commission combine public consultations (because of its limitations) with ad hoc round tables of relevant stakeholders, such as social partners and organised civil society, in order to strengthen participatory democracy’.111 The EESC also provides an important opportunity for the EU to develop EU civil dialogue, as established in Article 11 TEU, to understand citizen preferences through their representation by groups with sectoral and other interests, and for citizens to influence EU law and policy-making. Through its promotion of the interests of organised civil society, the EESC gives citizens influence in EU law-making, but it is only indirect via membership of CSOs and further limited by the EESC’s position as an advisory body. However, the EESC’s advisory role has had some influence on EU law-making and democratic developments, particularly on EU citizen participation upon which CSOs rest their legitimacy, and has had success in raising its own profile. This leads to the question of whether the EESC should have further influence over the EU legislative process and how inter-institutional engagement should operate in the future. The EESC would need to demonstrate stronger democratic legitimacy credentials to justify a stronger formal role in the EU legislative process. The EESC’s link with civil society means that its role supporting the ECI could be developed further. This would provide the EESC, and therefore CSOs and the interests and members they represent, with more influence over the ECI and, in turn, over the initiation

110 Only recently, newer publications have been focusing on their influence on the European Commission during the proposal stage (Neshkova (n 4)) and on the positions of MEPs and the staff of the Permanent Representations in the first reading (HÖnnige and Panke (n 35)). 111 See: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020XE3155.

270  James Organ and Nikos Vogiatzis of EU legislation. Simultaneously, a balance would have to be achieved as the ECI has not been designed as an instrument exclusive to CSOs. However, it is harder to justify giving the EESC the institutional mentor role for successful ECIs, at which point influence on the initiation of EU legislation is stronger. Participatory democracy needs to find a way for the diverse democratic spaces and instruments it relies upon to co-exist with more traditional representative structures. Part of the challenge for the ECI and the EESC, in this context, is to understand how to co-exist with the EP and the Commission, and to define their place in the initiation of the EU legislative process. The decisions about the role of the EESC and the ECI process will influence this co-existence. Formally, the ECI is important as a means to give voice to citizens in EU decision-making, and, in practice, it is also an important participatory mechanism for EU civil society. The EESC is founded on the principles of participatory democracy and gives voice to civil society at the EU level, and, like the ECI, is formally accepted as a legitimate route to influence EU law and policy. This complementary development of the EESC and the ECI should strengthen and clarify the EESC’s role in EU decisionmaking, and increase the effectiveness of EU citizen participation through both the EESC and the ECI. In turn, this should help participatory and representative EU democratic spaces and lead to an EU democratic system that more coherently rests on both Articles 10 and 11 TEU. Yet, the impact of the developing role of the EESC should not be over-stated. The EESC can develop to increase citizen influence over EU decision-making, strengthen participatory democracy and ‘bring citizens closer to the Union’, but it is just one aspect of the EU’s complex democratic system that needs to continue to evolve.

part iv Challenges and Future Prospects

272

14 Beyond the Post-it Citizen Engagement in Policy-Making through Material Deliberation PAULO ROSA, THOMAS VÖLKER AND ÂNGELA GUIMARÃES PEREIRA

I. Introduction In May 2019, the European Commission’s Joint Research Centre (JRC) ­inaugurated the first ever makerspace in an EU institution, bringing together a network of more than 800 EU makerspaces.1 The start of the pandemic required imagination to continue what had started as a promising journey of experimentation with ­citizen engagement in policy-making in which material deliberation2 and ­tinkering3 practices gained prominence. This chapter analyses the rationales underlying the possibility of extending civic intervention in public spaces to a policy-making milieu. To facilitate this, we introduce the maker movement and the different strands of the debate on ‘making’ and personalised fabrication, and present the shortcomings of the participation and engagement practices that are currently discussed in the debate about the public understanding of science (PUS) and public engagement with science (PES). We then present five case studies, two of which were implemented by the JRC makerspace, which demonstrate how makerspaces and the maker culture contribute to citizen engagement in policy-making.

1 P Rosa et al, Overview of the Maker Movement in the European Union (Luxembourg, Publications Office of the European Union, 2017). 2 S Davies et al, ‘Citizen Engagement and Urban Change: Three Case Studies of Material Deliberation’ (2012) 29 Cities 351, 357. Material deliberation posits that in order to express a variety of emotions (such as hate, love, fear, attachment, pleasure and nostalgia), human beings interact and thus deliberate in diverse ways: through reasoned argument in spoken and written language, through their bodies, through touching or through material co-creation. 3 This concerns ‘engaging in a tactile and kinaesthetic dialogue with tools, resources, and potential products or services’ as defined in A Kornel, Spinning into Control: Improvising the Sustainable Startup (New York, Palgrave Macmillan, 2018) ch 2.

274  Paulo Rosa, Thomas Völker and Ângela Guimarães Pereira Over the last decade, the so-called ‘Maker Movement’ gained significant momentum and interest among both scholarly and non-scholarly publics. Numerous communities of hobbyists, engineers, artists, designers, hackers, craftsmen and others are thriving globally. Events such as the Maker Faire or the recent Commission-backed European Maker Week are becoming increasingly important in promoting this maker culture. Additionally, specialised magazines, blogs and scholarly publications addressing ‘making’ from a range of perspectives began emerging. Making is often celebrated as a driver for the new ‘industrial ­revolution’4 and the ‘democratisation of innovation’5 due to its close connection to new tools that enable digital and personalised fabrication. The availability and affordability of these tools is expected to generate new forms of education, guided by an increased focus on craftsmanship and engagement with the material world.6 This chapter adds a different layer to the discussion on making and the maker movement that has hitherto not received much attention. Notable exceptions are the works of Kera et al,7 who analyse hackerspaces, the do-it-yourself (DIY) movement and their relationship with the emerging forms of citizenship, and Mota,8 who focuses on the role of the maker culture in challenging technoscientific innovation models. By bringing together the literature on maker cultures and DIY and the debate on engagement and participation in policy-making, we want to think about the phenomenon of making through the lens of citizen engagement and ask how making might respond to the shortcomings of the increasingly standardised and formalised modes of public participation.9 We argue that the maker culture can enrich and expand the scope of engagement practices and push them ‘beyond the post-it’, ie, beyond the overly formalised, static and discourse-focused forms of engaging with citizens. Linking the maker culture with engagement practices may thus trigger a reconceptualisation of the notions of participation and engagement by going beyond informing and decision-making towards tinkering, material deliberation and material co-creation. The latter might stimulate more collaborative bottom-up framings of problems together with uninvited publics, and foster ideas of prototyping policy-making. The Maker Movement can be seen as a rediscovery of the DIY culture of the 1940s and 1950s, deepened by the introduction of digital technologies.10 4 C Anderson, Makers: The New Industrial Revolution (London, Random House Business Books, 2012). 5 E von Hippel, The Democratization of Innovation (Cambridge, MA, MIT Press, 2005). 6 See M Honey and DE Kanter, Design, Make, Play: Growing the Next Generation of STEM Innovators (New York, Routledge, 2013); L Martin, ‘The Promise of the Maker Movement for Education’ (2015) 5 Journal of Pre-college Engineering Education Research 30, 39. 7 D Kera et al, ‘Post-apocalyptic Citizenship and Humanitarian Hardware’ in R Hindmarsh (ed), Nuclear Disaster at Fukushima Daiichi: Social, Political and Environmental Issues (Abingdon, Routledge, 2013) 125, 143. 8 C Mota, ‘The Rise of Personal Fabrication’ (2011) Proceedings of the 8th ACM Conference on Creativity and Cognition 279, 288. 9 J Chilvers and M Kearnes, Remaking Participation: Science, Environment and Emergent Publics (Abingdon, Routledge, 2015). 10 Mota (n 8).

Beyond the Post-it  275 The current maker culture can be distinguished from other DIY cultures by the ­incorporation of digital media in the creation process in three distinct ways:11 (a) makers often share their creations’ designs in online communities and likewise access other makers’ designs online; (b) makers often use digital fabrication ­technologies to craft their artefacts, and (c) makers’ creations are often a digital artefact. However, the establishment of the maker movement is not only due to technological advancement. Critical are also the development of accessible personal digital fabrication tools (section I.A), the emergence of physical spaces which foster new forms of collaborative work (section I.B), and the embracement of an open-source culture and the establishment of networks/communities of interest (section I.C).

A.  Personal Digital Fabrication Tools Access to personal fabrication tools – such as 3D printers, laser cutters and computer numerical control (CNC) milling machines – opens up new ways for personal expression and allows ideas and concepts to be easily transformed into tangible objects. Personal fabrication tools enable the rapid prototyping of tangible objects and the means for almost anyone to make almost anything, giving back to individuals the control of the creation process. Instead of being limited by what is available in stores and being obliged to purchase something that someone else believed was wanted, people can create what undoubtedly better reflects their needs and wishes. Moreover, personal fabrication tools transform the maker into a potential producer, engendering a decentralised and highly customised manufacturing model. Individuals can transform the objects that they create into products and goods outside the traditional manufacturing model.

B.  Collaborative Physical Environments The emergence of community-oriented physical spaces – such as FabLabs,12 ­hackerspaces13 and makerspaces – is enabling new forms of collaborative work 11 E-S Katterfeldt, ‘Maker Culture, Digital Tools and Exploration Support for FabLabs’ in J Walter-Hermann and C Büching (eds), FabLab: Of Machines, Makers and Inventors (Bielefeld, Transcript Verlag, 2013) 139, 147. 12 FabLabs (short for Fabrication Laboratories or Fabulous Laboratories) are workshops where people can meet, exchange ideas and collaborate with the common purpose of designing and digitally manufacturing custom-built objects. The concept was developed by MIT’s Neil Gershenfeld and initially aimed to explore the applications of personal fabrication in those parts of the world that cannot easily access tools for fabrication and instrumentation. See more in N Gershenfeld, Fab: The Coming Revolution on Your Desktop: From Personal Computers to Personal Fabrication (New York, Basic Books, 2005). 13 Hackerspaces (also called hacklabs) are community-funded and community-managed physical spaces gathering people with common interests (eg, programming, technology and digital art). The concept started in Berlin in August 1995, when C-Base, the world’s first hackerspace, was founded. For more on this, see B Pettis et al (eds), Hackerspaces: The Beginning (Opensource, 2011).

276  Paulo Rosa, Thomas Völker and Ângela Guimarães Pereira and fostering a renewed interest in STEAM education.14 These spaces function as multidisciplinary learning environments that stimulate new ideas and concepts for products, thereby accelerating invention and design cycles while enhancing existing practices and expertise. These spaces encourage experimentation and the sharing of experiences and expertise. The aim is to take advantage of the community’s knowledge and of the greater creative input associated with working within a collaborative community. The term ‘makerspace’ was originally associated with the Make Magazine,15 often in the context of creating tinkering spaces for children. However, the concept became more widespread and began being used by practitioners to refer to any generic space (often also including FabLabs and hackerspaces) that promotes active participation, knowledge sharing, and collaboration through open exploration and creative use of technology (ie, through tinkering and making). Makerspaces do not comply with or need to include a pre-defined structure and set of personal fabrication tools. This chapter uses this broader definition of a makerspace – a publicly accessible creative space that explores the maker mindset and tinkering practices. Makerspaces have a role in promoting novel education models, allowing for new curricula to develop and for theoretical concepts learnt at school to be practically applied, thus enabling students to become part of a community of practice and become more interested in STEAM disciplines. The end result is claimed to be better education by making it more experimental and connected to real-world situations, while such hands-on learning (‘learning by making’) can contribute to filling the skills gaps in the labour market.

C.  Open-Source Culture Embracing open-source culture potentially opens up novel niches for sustainable innovation.16 By following a creation process based on the unconstrained access to documentation, manuals, source code or design blueprints, projects become open to anyone who wishes to reuse, revise, remix and further redistribute them to continuously improve them or change them to reflect something that better

14 STEAM education is described as a pedagogical approach that uses Science, Technology, Engineering, the Arts and Mathematics as access points for guiding student inquiry, dialogue and critical thinking. For more on this, see M Khine and S Areepattamannil, STEAM Education: Theory and Practice (Cham, Springer, 2019). 15 G Cavalcanti, ‘Is it a Hackerspace, Makerspace, TechShop, or FabLab?’ Make Magazine, 22 May 2013, https://makezine.com/2013/05/22/the-difference-between-hackerspaces-makerspacestechshops-and-fablabs. 16 A Powell, ‘Democratizing Production through Open Source Knowledge: From Open Software to Open Hardware’ (2012) 34 Media, Culture & Society 691, 708; E von Hippel, ‘Innovation by User Communities: Learning from Open-Source Software’ (2001) 42 MIT Sloan Management Review 82.

Beyond the Post-it  277 suits other needs. In the last two decades, several open-source projects have emerged from the maker movement (and have likewise influenced it). The two most known examples are the Arduino electronics prototyping platform and the ReRap desktop 3D printer, both fully freely documented online. In the subsections above, we have highlighted three different aspects of the maker movement – prototyping, collaboration and sharing. These illustrate the intersection of uninvited bottom-up civic engagement and the idea of participatory democracy through invited citizen engagement.

II.  Challenging the ‘Technologies of Participation’ As shown above, the debates about the maker culture mainly focus on the potential for making to challenge mainstream models of innovation and for it to develop new forms of education. In this chapter, we propose thinking about making and the maker culture from the perspective of public participation and citizen engagement in science and policy-making. We argue that making enables us to rethink engagement and participation in terms of material practices and craftsmanship. This way of reconceptualising these notions addresses some of the key long-standing issues in engaging citizens in knowledge production and policy-making, such as the persevering of the deficit model, agency of citizens towards the processes that they are involved in, or even meanings of ‘inclusiveness’ of engagement processes and the narratives that sustain them. To these ends, in the following three subsections, we briefly outline attempts to integrate science and society, focusing on debates about PUS and PES. These debates have evolved for a couple of decades now and have addressed different ways of building relations between science and the so-called ‘public’. Following that, and drawing on recent writings from science and technology studies (STS) and post-normal science (PNS), we address a range of issues faced by citizen engagement activities.

A.  Hard to Kill: The Deficit Model Over the past few decades, we have witnessed lively debates about the changing relations between science, policy-making and society, which question not only how they (should) relate to each other, but also the very concepts themselves. Genetically modified food, renewable energies and novel technoscientific fields like nanotechnologies exemplify policy fields where questions about how to make decisions in the face of increasing scientific uncertainty have been hotly discussed. Both the epistemic authority and social legitimacy of scientific experts and science itself have been questioned. For its part, COVID-19 has given renewed visibility to public health policy-making and to experts with a role in governing the pandemic.

278  Paulo Rosa, Thomas Völker and Ângela Guimarães Pereira Within this broader context, the term ‘public understanding of science’ commonly refers to a debate that started in the UK in the mid-1980s, when British science policy-makers faced a crisis because the so-called ‘public’ seemed to lose trust in science, which in turn would jeopardise the latter’s own legitimacy.17 Scientists and policy-makers argued that the reason for this lack of trust was that the public did not understand scientific facts, ie, that members of the public suffered from a cognitive deficit. This argumentation was backed by surveys that demonstrated citizens’ lack of knowledge of the so-called ‘basic scientific facts’.18 Given such problem framing, the only possible solution was to ‘inform’ and ‘educate’ the public, which led to the development of various forms of science communication. A range of controversies concerning technoscientific issues – such as cloning, genetically modified food or xenotransplantation during the 1990s – quickly proved that this model was too simplistic. Subsequently, this so-called ‘deficit model’ was sharply criticised by scholars from the STS field for resting on an elitist and simplistic conception of the relationship between experts and so-called ‘lay citizens’. As a reaction, new modes of science–society relations were developed that can be subsumed under the label of ‘public engagement with science’. The aim was to give the public a voice and enable democratic participation in decision-making processes. Yet, although sharply criticised, the deficit model seems hard to kill.19 It is still tangible when citizens are employed ‘as an embodiment of values, ethics, morals that add a subjective dimension to the objective business of determining risks or scientific facts’,20 or to perform data collection tasks required by many citizen-related sciences. Conceptualised as rational actors in such settings, citizens are merely provided with bits of knowledge prepared by experts based on which they are supposed to make their decisions; citizens are not considered to be ­‘epistemic actors’ capable of contributing in any meaningful way beyond stating their ­preferences. Additionally, criticism has been voiced regarding the representativeness and selectivity in the recruitment processes of such engagement exercises. Often, the idea of a ‘general public’ is invoked where very particular communities come together for deliberation events.21 Furthermore, procedures of recruitment and the rationales guiding such selection processes are often obscure and non-transparent, meaning that it is not clear who is doing the recruitment and

17 Royal Society ad hoc Group (chaired by WF Bodmer), The Public Understanding of Science (London, Royal Society, 1985). 18 B Wynne, ‘Misunderstood Misunderstandings: Social Identities and Public Uptake of Science’ (1992) 1 Public Understanding of Science 281, 304; J Ziman, ‘Public Understanding of Science’ (1991) 16 Science, Technology & Human Values 99, 105. 19 Â Guimarães Pereira and T Völker, ‘Engaging with Citizens’ in V Šucha and M Sienkiewicz (eds), Science for Policy Handbook (Amsterdam, Elsevier, 2020) 78, 95. 20 M Michael, ‘“What are We Busy Doing?” Engaging the Idiot’ (2012) 37 Science, Technology, & Human Values 528, 554, 530. 21 M Michael, ‘Publics Performing Publics: Of PiGs, PiPs and Politics’ (2009) 18 Public Understanding of Science 617, 631.

Beyond the Post-it  279 on what grounds. As a consequence, such engagement exercises are much too often merely public relations vehicles for scientists or policy-makers, where it is not clear how citizens actually link to governance and how, if at all, they become consequential for science or policy-making. Furthermore, EU public consultation mechanisms, such as the ‘Have Your Say’ portal,22 cannot guarantee any degree of inclusiveness because the response rates are small and the responses often provided by citizens affiliated with non-governmental organisations and businesses. These ‘voicing’ mechanisms therefore need to be understood as a particular ‘mode of governmentality’, meaning that these techniques are imperfect means of giving voice to the people, and they are also a means of ‘making’ such citizens and their understanding of ‘governance’.23 Such engagement of citizens may even foreclose more radical forms of citizenship, such as protests and grassroots movements.

B.  How Can Making Contribute to the Institutionalisation of Meaningful Citizen Engagement? The maker culture is certainly not the solution to all the aforementioned problems, nor do makers necessarily want it to be.24 However, we argue that making and the maker culture, together with co-design and prototyping practices, can be a valuable addition to already existing modes of engagement and that, by providing more open and creative forms of engagement and problem making, they can inspire new ways to address some of the shortcomings of the previous approaches to science–society engagement. First of all, the maker culture allows for a focus on material deliberation, material co-creation and a more dynamic conceptualisation of ‘the citizen’. While the PUS tradition viewed the public mostly as a coherent entity with a cognitive deficit, different and heterogeneous publics with different degrees of knowledge and experience were ‘discovered’ later on. Yet, these publics were still deficient, this time suffering from a ‘democratic’ deficit, lacking a ‘voice’ in decision-making processes. Different methods were then devised to give citizens a voice. Issues were framed, simplified and presented to the public so that the latter can discuss them and make (often expert-led) informed decisions. The ‘post-it’ (a brand of sticky notes) became the symbol for such formalised, science-led and mostly discursive deliberation exercises. The discussion of the maker culture enables us to challenge existing ideas of the public or the citizens and to experiment with new forms of engagement. Citizenship

22 See more in ch 10 by Paolo Zicchittu in this volume. 23 U Felt and M Fochler, ‘Machineries for Making Publics: Inscribing and Describing Publics in Public Engagement’ (2010) 48 Minerva: A Review of Science, Learning and Policy 219, 238. 24 F Ferretti and  Guimarães Pereira, ‘A New Ethos for Science? Exploring Emerging DIY Science “Qualities”’ (2021) 125 Futures, https://doi.org/10.1016/j.futures.2020.102653.

280  Paulo Rosa, Thomas Völker and Ângela Guimarães Pereira itself needs to be understood as a dynamic category. As Gabrys convincingly argues, citizenship is co-emergent with particular engagement events, their material and virtual environments and technologies.25 Focusing on DIY environmental sensing technologies, they argue that these technologies are a means for developing new, more active forms of citizenship that can challenge established power relations concerning environmental practices. Horst and Michael similarly talk about speculative design projects and argue that engagement through design and prototyping implicitly presumes a different kind of citizen.26 Citizens in traditional engagement settings – workshops or focus group discussions – enter engagement exercises in order to discuss with ‘experts’ about an issue, a problem or a challenge in order to contribute to the process of finding solutions. The issues at stake are mostly ‘prepared’ by experts: they are summarised, ordered and sometimes also ‘simplified’.27 Such engagement exercises tend to be scientist-led or policy-led. The problem with such ‘social research framing of science-citizen relations’ (emphasis in original)28 is that citizens’ opinions are treated as survey results with little citizen control over both the use of their opinions and the framing of engagement exercises. However, as Soneryd points out, it might be fruitful to rethink the conceptions of citizenship: ‘Rather than being a direct reflection of how policy elites imagine publics, citizenship is made in the interaction between how people are interpreted as citizens, and the way in which they themselves make sense of this in relation to their own histories and visions of the future.’29 Makerspaces, we argue, have the potential to challenge the prevalent conceptions of citizenship and allow experimentation with a different idea of citizens and with more open forms of engagement.

C.  Material Deliberation and Co-creation in the Maker Movement In this section, we describe three cases of citizen engagement connected to the maker movement that depict making as a space for engagement: DIY aerial

25 J Gabrys, ‘Programming Environments: Environmentality and Citizen Sensing in the Smart City’ (2014) 32 Environment and Planning D: Society and Space 30, 48. 26 M Horst and M Michael, ‘On the Shoulders of Idiots: Re-thinking Science Communication as “Event”’ (2011) 20 Science as Culture 283, 306. 27 A while ago, the third co-author of this chapter developed a concept called ‘progressive disclosure of information’, which sought to overcome such simplifications and, instead, give progressive access to the complexity of issues and not decide a priori to which level of simplification participants would have access. 28 A Irwin, ‘Constructing the Scientific Citizen: Science and Democracy in the Biosciences’ (2001) 10 Public Understanding of Science 1, 18. 29 L Soneryd, ‘Technologies of Participation and the Making of Technologized Futures’ in J Chilvers and M Kearnes (eds), Remaking Participation: Science, Environment and Emergent Publics (Abingdon, Routledge, 2015) 144, 161.

Beyond the Post-it  281 photography in certain neighbourhoods of Jerusalem (section III.C.i), participatory radiation measurement in the aftermath of the Fukushima nuclear disaster (section III.C.ii) and the makers’ response to the COVID-19 pandemic (section III.C.iii). They are relevant for this chapter because they exemplify several aspects of making as a space for civic engagement and citizenship, and because they speak to citizen engagement modalities that the JRC makerspace aims to implement.

i.  DIY Aerial Mapping in Jerusalem This project of DIY aerial photography in Jerusalem was carried out by Hagit Keysar and her colleagues.30 They used the Public Lab’s balloon and kite aerial photography toolkits31 to process aerial photos into a geo-referenced, highresolution map in Jerusalem. The context of this work is the Israel–Palestine political conflict which introduces complexities linked to the method itself. Residents of selected areas were involved in mapping and visualising geo-spatial information for advocacy. People and their issues of concern were the focal point of the maps, while the process allowed maps and mapping to bring together people, places, issues and technological process’. The outcomes of this work are DIY aerial maps with a series of tangible stories that matter to the community that participated in their development. The authors describe this type of engagement as ‘new ways of seeing’,32 given that cartography has been in the hands of states and, more recently, in those of corporations.33 A map is ultimately a representation of a chosen storyline making particular claims. Conway argues that grassroots maps are distinguished by the purposes of the maps, the actors that create them and the sociocultural contexts from which the mappers’ purposes arise. The rationale for this work speaks to the engagement practice that sees citizens as the ‘extended peer community’,34 consisting of all those affected by an issue who are prepared to enter into dialogue about it, bringing their ‘extended facts’ into governance processes.

30 H Keysar, ‘A Matter of Scale – Civil Architecture and Open Hardware’, Public Lab, 19 October 2014, https://publiclab.org/notes/hagitkeysar/10-19-2014/a-matter-of-scale-civil-architecture-andopen-hardware. 31 J Breen et al, ‘Mapping Grassroots: Geodata and the Structure of Community-Led Open Environmental Science’ 14 (2015) ACME: An International E-Journal for Critical Geographies 849. 32 H Keysar, ‘Seeking New Ways of Seeing: Collaborative Mapmaking in Jerusalem’ (2013) Evidence & Influence: Short Stories from Info-Activists, https://micromag.evidenceandinfluence.org/ article/mapmaking-in-jerusalem. 33 AR Conway, ‘Practitioners of Earth: The Literacy Practices and Civic Rhetoric of Grassroots Cartographers and Writing Instructors’ (PhD dissertation, Bowling Green State University, 2016). 34 SO Funtowicz and JR Ravetz, ‘A New Scientific Methodology for Global Environmental Issues’ in R Costanza (ed), Ecological Economics: The Science and Management of Sustainability (New York, Columbia University Press, 1991) 137–52.

282  Paulo Rosa, Thomas Völker and Ângela Guimarães Pereira

ii.  DIY Radiation Monitoring in Fukushima On 11 March 2011, a tsunami triggered by an earthquake flooded Japan’s north coast causing the meltdown of the Fukushima Daiichi Nuclear Power Plant operated by TEPCO. The area surrounding the power plant was contaminated by nuclear material released by radioactive plumes and the reactor’s cooling water.35 The Japanese public struggled to understand the situation and its consequences, mostly due to a lack of radiation data. The centralised radiation monitoring managed by Japan’s Ministry of Education, Culture, Sports, Science and Technology (MEXT) was severely damaged by the tsunami. Although MEXT still managed to publish information on radiation levels, there were issues with the format of the data published and with the ‘multiplicity of norms for radiation measurements’,36 which made it difficult for the public to get a clear picture of what was going on. After the Fukushima disaster, Safecast, a network of concerned and potentially affected citizens, was formed. Safecast describes itself as ‘an international, volunteer-centred organization devoted to open citizen science for the environment’, which aims to generate and publish ‘accurate and trustworthy radiation information’.37 It has strong ties with Tokyo Hackerspace, whose members were key in developing DIY Geiger counters and other radiation monitoring tools, and in teaching anyone interested how to affordably build and use these counters. These tools allowed many people to gather radiation data and share them online, resulting in an alternative source for information on radiation levels. By bringing together novel ways of making and open-source ideology, and with its ties to citizen activism, the Safecast case illustrates how the maker culture can contribute to citizen engagement activities based on material deliberation.

iii.  COVID-19: Makers’ Response to Material Scarcity in the Midst of the Healthcare Crisis In March 2020, faced with the COVID-19 pandemic, hospitals were in dire need of life-saving equipment and protective gear. The high risk of virus exposure for health workers and patients showed that there was insufficient manufacturing capacity to cope with the equipment shortage. Makerspaces thus took action to create and manufacture novel, open-source and low-cost personal protective equipment (PPE), such as face masks and face shields; specific health device components, such as valves; and even mechanical ventilators. During these first months of the pandemic, tackling the global coronavirus crisis brought together makers and healthcare professionals. The Helpful Engineering initiative (more than 16,000 members) and the Open Source COVID19 Medical Supplies (close to 70,000 members) 35 J-C Plantin, ‘The Politics of Mapping Platforms: Participatory Radiation Mapping after the Fukushima Daiichi Disaster’ 37 (2015) Media, Culture & Society 904, 921. 36 ibid 909. 37 See http://blog.safecast.org/about.

Beyond the Post-it  283 are two global initiatives aimed at helping over-burdened medical staff. These initiatives relied on the open sharing of information and knowledge through multiple online platforms, which facilitated the finding and replication of solutions in makerspaces all over the world to help local hospitals. Hackathons, such as the European Commission’s EUvsVirus hackhaton held on 24–26 April 2020, were also organised as short duration events where participants pitch ideas and team up to design solutions to address the coronavirus pandemic in the EU. The PPE shortage in hospitals and clinics, as well as among first responders and social workers, was one of the major issues makers worked hard to address and actually make: open-source face shields specifically designed for this purpose that were 3D printed or laser cut. From Czechia to Portugal, makers were rallying to produce and deliver face shields for those working on the frontlines.38 Furthermore, shortly after the outbreak of the COVID-19 pandemic in Italy, a hospital in the Italian city of Brescia, located in the region hardest hit by COVID-19 infections, ran dramatically low on certain valves needed for intensive care devices. As the regular supplier was unable to provide replacement valves in time to save the patients, the solution found was to replicate the valves’ design and 3D print them locally. Even if, for accuracy and medical compliance reasons, the valves cannot be printed in typical personal 3D printers, this story highlights the ingenuity of the solution found. Another example of makers’ interventions during the pandemic is the Easy Covid19 project,39 which utilises 3D printing to turn full-face snorkelling masks into emergency ventilation masks. These initiatives highlight several aspects of the maker communities’ ethos, above all open-source and collaborative ideals, as well as sharing and solidarity. These all reflect a model of citizenship that relies on material intervention about ‘matters of care’.40

III.  Two Cases of Material Deliberation and Co-creation Run by the JRC Makerspace A.  Citizen Engagement at the European Commission’s Joint Research Centre The work Presented in this section is situated in a Directorate General of the Commission, JRC. At the JRC, several collectives of citizen engagement

38 The number of face shields is difficult to assess, but a survey to makers in six European countries (Belgium, Czechia, France, Portugal, Spain and the UK) revealed that over half a million face shields had been donated to local hospitals and other institutions unprepared with protective equipment by June 2020. 39 See www.isinnova.it/easy-covid19-eng. 40 Ferretti and Guimarães Pereira (n 24).

284  Paulo Rosa, Thomas Völker and Ângela Guimarães Pereira co-exist,41 and there are several definitions of citizen engagement available. The two cases reflect the authors’ effort to advance approaches where citizens have actual influence in the processes that they engage with (research or policymaking).42 Therefore, the meaning of citizen engagement in this chapter is not just about exploring opinions and interests, or eliciting knowledge and values, but also about ‘openly discussing matters of “concern” and controversy’.43 This definition recognises that there is not a single public with coherent and static views that can be ‘surveyed’, but that such views can only emerge through co-creation and deliberation.44 Also, engagement should aim at mobilising the knowledge, imaginations, affections and values of citizens to improve the quality of all relevant stages of policy-making. This section presents two projects conducted by the JRC makerspace to illustrate how this space is used in a policy milieu. The aim is to show how making can step out of its grassroots origins and enable inclusive policy-making conversations based on the materiality of the issues of concern in an EU institution.

B.  The Future of Work In recent years, EU institutions have paid significant attention to the future of work.45 This case study was developed to inform a 2015 JRC initiative on this topic. The idea was to explore different realms where futures of work are being experimented with and which reflect imaginaries other than those of industry and business. We started with the question of whether there are (or what are) the other drivers of work futures that are ignored by the most common future of work narratives? In these narratives, information and communications technology (ICT) seemed to be the main driver of change, which was either portrayed as a safe harbour for companies to thrive or as a stern threat and main cause of work destruction. We explored these questions with maker communities, which do not have homogeneous objectives and motivations, but are de facto enabling new models of education, collaborative work and manufacture. We first mapped the drivers and narratives about the future of work presented in the media, policy and academia, as well as in personal fabrication and collaborative

41 T Völker and  Guimarães Pereira, ‘“What Was That Word? It’s Part of Ensuring its Future Existence” Exploring Engagement Collectives at the European Commission’s Joint Research Centre’ Science, Technology, & Human Values, forthcoming, https://journals.sagepub.com/ doi/10.1177/01622439211046049. 42 The third co-author of this chapter coordinates the Competence Centre on Participatory and Deliberative Democracy at the JRC, which was launched in October 2021. 43 This definition is inspired by readings in Chilvers and Kearnes (n 9). 44 Guimarães Pereira and Völker (n 19). 45 See most recently JRC, The Changing Nature of Work and Skills in the Digital Age (Luxembourg, Publications Office of the European Union, 2019); M Kiss, ‘The Future of Work: Trends, Challenges and Potential Initiatives’, EPRS Ideas Paper, Doc No PE 679.097, February 2021.

Beyond the Post-it  285 economy discourses. Eight thematic narratives were found: (1) automation; (2) globalisation; (3) micro-factories; (4) sharing economy; (5) new skills; (6) green economy; (7) ageing; and (8) migration.46 This mapping phase was followed by engagement with different maker movement actors through in-depth interviews and group settings, which were all carried out in makerspaces. The results yielded insights into the maker movement’s values, motivations and expectations as to the futures of work – outcomes which could inspire much-needed extended conversations and the reimagination of the futures of work. This case study illustrates two facets of the usage of makerspaces. The first one is that by engaging with bottom-up communities, policy issues can be framed by uninvited publics, thus extending the terms of the debate to their matters of concern, which would otherwise not be voiced. The second relates to the idea of ‘going where people go’. The JRC makerspace is part of the wider network of makerspaces and sharing their identity, thus making it possible to propose the same engagement activities across the makerspace network involving makerspaces’ communities.

C.  Connected and Automated Vehicles Between 2018 and 2019, in collaboration with other EU makerspaces, the JRC makerspace ran a pilot project on citizens’ imaginaries on Connected and Automated Vehicles (CAVs).47 The project focused on the social and ethical issues that the technology involved raised in the context of EU policy-making. Engagement methods included in-depth interviews with stakeholders to explore the various mobility narratives, ethical considerations, expectations and matters of concern about this new type of mobility. We organised Futures Making Ateliers,48 group settings engaging ordinary citizens to imagine alternative mobility, deconstructing the technological promises of Level 5 automation CAVs, as well as their plausibility and desirability from the participants’ point of view. We started by examining the narratives that justified the proposal, anchoring our analysis in the key EU policy document that addresses these innovations – the 2018 Commission Communication on Automated Mobility.49 The three-hour-long discussions which were held were an opportunity for participants to explore and co-create future scenarios regarding EU mobility. 46 P Rosa et al, Futures of Work: Perspectives from the Maker Movement (Luxembourg, Publications Office of the European Union, 2018). 47 A van Wynsberghe and  Guimarães Pereira, Mobility Imaginaries: The Social & Ethical Issues of Connected and Automated Vehicles: Narrative Analysis and Engagement with Different Actors (Luxembourg, Publications Office of the European Union, 2021). 48 We used the plural ‘futures’ to question the narratives promoting one particular future and to explore a variety of scenarios with participants. 49 European Commission, ‘On the Road to Automated Mobility: An EU Strategy for Mobility of the Future’ COM (2018) 237, 17 May 2018.

286  Paulo Rosa, Thomas Völker and Ângela Guimarães Pereira During the ateliers, participants were individually asked to build their future vehicle with Lego® building blocks and were later asked to place them in a future neighbourhood, which was collectively agreed upon by other participants. The contextualisation of the vehicle prompted a number of discussions on desirability and feasibility. Ethical and other values of CAVs were explored through Lego® robots built by JRC colleagues from the LivingLab on mobility.50 These were built to mimic some of the algorithms that CAVs may use to move autonomously and deal with spatial context. We held eight such futuring ateliers across Europe engaging with 148 participants in total. They were held in local languages in Italy, Portugal and Belgium. The participants themselves represented countries such as Greece, Italy, Portugal, Austria, Poland, Belgium, the Netherlands, France and the UK. As the political and civic capacities of participants differed, the JRC sought to provide enough contextual information while allowing space for in-depth debates within and between groups. Participants started by sharing their experienced mobility through a speculative futuring material activity. They were asked to use Lego® to build a vehicle of the future that solved a mobility issue that they deemed important. A demo of Lego® robot cars that exemplified algorithmic automated driving was used as a trigger for participants to reflect on ethical issues raised by CAV-based mobility futures. This was followed by a scenario-building exercise during which the participants’ futures challenged the assumptions made by policymakers and stakeholders, and explored mobility alternatives that concerned active modes of transport, low-tech solutions and behavioural and/or infrastructural changes that could impact how we move in the first place. This case demonstrates the importance of material discussion of controversial matters so as to trigger critical thinking about the officially assumed policy futures that are poorly discussed with the publics.

IV.  The Potential of ‘Making’ for Citizen Engagement in the European Commission How exactly do we think that the maker culture can add to the debate about the previous attempts of engaging science and society? To answer this question, we use the case studies presented above to address the shortcomings of mainstream technologies of participation and to critically reflect on the potential for making to stimulate the rethinking and enriching of engagement and participation in a policy milieu. We argue that the latter can be achieved through: (1) material deliberation and co-creation, and prototyping; (2) its embeddedness in local communities, and its potential for bottom-up problem framing and the engagement of uninvited publics; (3) a different conceptualisation of citizenship that co-emerges with 50 See more in A Raposo et al, JRC Future Mobility Solutions Living Lab (FMS‐Lab): Conceptual Framework, State of Play and Way Forward (Luxembourg, Publications office of the European Union, 2021).

Beyond the Post-it  287 particular maker cultures; and (4) refocusing on long-term engagement and on an understanding of interaction not as dialogue, but as co-creation continuously in the making.

A.  Material Deliberation and Co-creation, and Prototyping All the case studies described above illustrate how, together with new forms of citizenship, new modes of engagement can emerge from within the maker culture that go beyond mainstream engagement practices and their focus on discursive means of deliberation and dialogue symbolised by the post-it. Additionally, making can be used to explore more open and creative forms of engagement, as opposed to discursive practices of reading, drafting and distributing different sorts of texts and leaflets.51 It has the potential to be a fertile ground for collective and collaborative experimentation, where critical approaches to technoscientific innovation are explored through material deliberation.52 Both the CAVs project and the DIY aerial mapping exercises can be considered cases of material deliberation, as both processes and products incorporate non-traditional modes of deliberative interaction, including the discursive (eg, storytelling), the material (eg, sites, places, objects and building blocks) and the affective (eg, the set of emotions that particular sites and places cause participants to display). The development of the DIY Geiger counters also shows how material tinkering can lead particular technologies to co-emerge with a network of actors and issues. Developing these technological artefacts and training people to do the same helped to address the problem of producing trustworthy knowledge on radiation in the area.53 Central to understanding what is going on in such cases is ‘tinkering’. This notion refers to small-scale and localised practices of collaborative experimentation with solutions to particular problems. Tinkering thereby focuses not so much on controlled, large-scale experiments, but is more about exploring the crafts, skills and creativity of local communities engaged in material interventions. A sense of play and fun is fundamental to such spaces. The outcomes of these practices can be inspiring as they often offer new approaches to societal issues that concern us all. Furthermore, makerspaces and prototyping may enable radically different problem framings and critical thinking. New issues might evolve that had not even been considered before. Just building a vehicle of the future with Lego® building blocks allowed participants to reflect on their mobility issues, consider links with the broader aspects of their economies, and change the agenda of the participatory exercise, moving the focus of the discussions from the CAV technology to the social and economic implications of the current mobilities.

51 Chilvers

and Kearnes (n 9); Soneryd (n 29). et al (n 2). 53 The devices were specifically designed to be affordable and easy to produce. 52 Davies

288  Paulo Rosa, Thomas Völker and Ângela Guimarães Pereira

B.  Engaging within Spaces Where People Go The idea of having a makerspace at the JRC helps with experimenting with public spaces where uninvited publics dwell as loci to carry out invited citizen engagement in science and policy-making.54 While this can be viewed as a way to tap into publics that are otherwise hard to ‘invite’, this is ultimately an attempt to recognise the importance of bottom-up framing of societal issues. Makerspaces can be regarded as spaces for collective experimentation or tinkering, spaces in which more ‘uninvited’55 forms of participation are enabled by the fact that these spaces are not solely science-led, but are created and led by various kinds of actors with different backgrounds. In this way, making can contribute to rethinking engagement: such uninvited forms of collaboration allow for more bottom-up problem framings. In ‘traditional’ engagement formats that function mainly as ‘formalized mechanisms of voicing’,56 the problems are mostly pre-defined either in the form of a technological fix or as a social innovation. Citizens are brought into the process mostly to assess the potential impacts and ethical issues concerning the solutions. The problems are not open for debate. However, as Callon and his colleagues have convincingly argued in the context of nuclear energy: ‘If the end justifies the means, only debate can justify the end.’57 This means that we need to find ways of collaboratively and creatively thinking about the problems that need to be addressed. The case studies of DIY aerial mapping, Safecast and COVID-19 makers show how publics are not pre-defined entities that are selected by public engagement experts, but rather emerge together with particular ‘matters of concern’,58 ‘matters of care’59 and specific situations or ‘events’.60 In the case of DIY mapping, the long-lasting Israel–Palestine political conflict over settlement activities led to the constitution of an ‘extended peer community’ which, together with alternative means of cartography, focused on producing tools that could generate different stories and narratives in order to facilitate dialogue. In the Fukushima example, the actors developing and distributing DIY Geiger counters were neither assembled nor selected by government bodies; instead, they emerged as a reaction to what was perceived as problematic handling of the consequences of the nuclear disaster. 54 Völker and Guimarães Pereira (n 41). 55 B Wynne, ‘Public Participation in Science and Technology: Performing and Obscuring a Political– Conceptual Category Mistake’ (2007) 1 East Asian Science, Technology and Society: An International Journal 99. 56 Michael (n 20) 530. 57 M Callon et al, Acting in an Uncertain World: An Essay on Technical Democracy (Cambridge MA, MIT Press, 2009) 109. 58 B Latour, ‘Why Has Critique Run out of Steam? From Matters of Fact to Matters of Concern’ (2004) 30 Critical Inquiry 225, 248. 59 M Puig de la Bellacasa, ‘Matters of Care in Technoscience: Assembling Neglected Things’ (2010) 41 Social Studies of Science 85, 106. 60 Horst and Michael (n 26).

Beyond the Post-it  289 Similarly, many of the participants in both the future of work and CAVs cases run by the JRC were affiliated to or visited the makerspaces where the engagements took place and volunteered to participate in our participatory journeys, responding to a purposeful invitation. They accepted that invitation not only because they were there already or because they were interested in the subject, but also because they were intrigued by this way of making publics.

C.  Long-Term Engagement and ‘Matters of Care’ Thinking about engagement against the background of the maker culture also directs attention to the particular temporalities of participation. In recent years, scholars in the field of STS have stressed the importance of thinking about ‘care’ in technoscience.61 As an alternative to logics of choice, which focus on one-off engagements for the sake of decision-making based on sound scientific evidence, care-oriented approaches emphasise the need for continuous long-term engagement between heterogeneous actors, thus taking into account the temporal dimension of technoscientific innovation. Makerspaces are places of continuity, where members experiment and exercise their patience with the issues they would like to solve. In the DIY aerial mapping, COVID-19 PPE and Safecast examples, a change in the temporalities of engagement becomes necessary due to the need for long-term responses. In the aerial mapping case, the actors involved were confronted with a long-lasting conflict that could not be resolved through ‘mere’ informing and decision-making, but required a different temporal dimension. In the COVID-19 PPE case, the makers operated in a temporality of emergency, appropriating the materiality of the emergency and intervening according to their ethos and practices. In the Fukushima case, the actions taken by actors and the networks that were formed were motivated by the need to deal with the long-term consequences of the nuclear accident, such as the possible health effects of contamination, compensation and clean-up.62 Such forms of engagement warrant replacing the logic of choice or judgement, in which citizens are presented with a set of options and are asked to make an informed decision or recommendation, with the logic of care. The latter logic is characterised by a contextualised and situated understanding of certain problems and by modes of engagement that are oriented towards long-term collaboration. The shift from logics of choice to logics of care is especially important when we acknowledge the complexity of contemporary problems and the uncertainty of

61 Puig de la Bellacasa (n 59); A Mol, The Logic of Care: Health and the Problem of Patient Choice (Abingdon, Routledge, 2008). 62 MR Reich and A Goto, ‘Towards Long-Term Responses in Fukushima’ (2015) 386 The Lancet 498, 498.

290  Paulo Rosa, Thomas Völker and Ângela Guimarães Pereira scientific knowledge claims in situations where there are no clear-cut options to choose from.63 As mentioned above, extending participation and creating spaces for collective experimentation also aims at opening up problem framings. This has been the clear outcome of the two cases run by the JRC makerspace. By allowing a diverse set of actors to contribute to discussions about the problems that need to be tackled, it might be possible to create ‘objects of care’64 and direct attention to ‘matters of care’.65

D.  Reinvention of Deliberation? The Virtual and Material Challenges of COVID-19 With one exception, all the cases presented above were carried out before the outbreak of the COVID-19 pandemic, which has been challenging our received notions of conviviality since March 2020. Commission President Ursula von der Leyen’s ‘new push for democracy’ is an opportunity to reimagine participatory governance in the EU by openly exploring novel formats and places of engagement and, importantly, the institutional arrangements needed to democratise knowledge, values and imaginations to design policy. A number of policy areas ventured into engaging citizens in policy design: EU Missions in Horizon Europe, the Conference on the Future of Europe, cohesion policy and the Climate Pact, to name a few. But with the COVID-19 lockdowns, citizen engagement practitioners had two major concerns. On the one hand, the dilemma was how to continue working if physical gatherings of people were not allowed. On the other hand, the ‘deficit model’ was very dominant because governance of the pandemic relied mostly on one branch of science, leaving little to no space for one to voice the factual effects that the pandemic had on other aspects of life, including youth mental health. Hence, for practitioners, the pandemic’s first casualty was the essence of their work. However, practitioners everywhere, including those in the European Commission, resorted to online platforms as the means to continue developing the project of participatory democracy. At first, we were concerned that citizens would not be interested in engaging in conversations that were not of their immediate concern. Who would want to talk about and imagine green spaces in their cities when we were confined to our dwellings? Or would the confinement instead reinforce the need for citizens to discuss the use of urban spaces? Who would care about ‘climate change’ and ‘smart cities’ when in some countries – like Italy, 63 S Funtowicz and R Strand, ‘Models of Science and Policy’ in T Traavik and LC Lim (eds), Biosafety First: Holistic Approaches to Risk and Uncertainty in Genetic Engineering and Genetically Modified Organisms (Trondheim, Tapir Academic Press, 2007) 263, 278. 64 MK Halpern et al, ‘Stitching Together Creativity and Responsibility: Interpreting Frankenstein across Disciplines’ (2016) 36 Bulletin of Science, Technology & Society 49, 57. 65 Puig de la Bellacasa (n 59).

Beyond the Post-it  291 Portugal and Spain – we were told to stop moving around or even to go to a nearby park? Or would the confinement instead make these questions more urgent, given that COVID-19 gave us a glimpse of the possible consequences of other crises, such as climate change?66 We have come a long way since Arnstein’s iconic 1969 ladder of citizen participation, which has stimulated a great deal of the thinking about citizen engagement. In some cases, fairly high ranks in this ladder have been achieved with citizens engaged as agents of change. Yet, the lower ranks in this ladder remain of concern because they refer to disempowering modes of relationship between institutions and citizens, such as one-way communication, manipulation and tokenism. The pandemic has shown that going down the ladder is easy, as current governance seems to emphasise citizen engagement narratives that view citizens as data bodies, with behaviours to guide, and as receptors of the ‘new normal’ policies. However, the pandemic has also emphasised that, now more than ever, space urgently needs to be made to capture citizens’ imagination and their matters of concern, so as to collectively decide the ‘normals’ and norms by which we want to live in the future. The makerspace can reinforce modalities of engagement where people explore issues of concern beyond expert-led dialogues and instead experiment with expectations, imaginaries and responsibility.

V.  Concluding Remarks In this chapter, we have proposed thinking about making and the maker culture from the perspective of the debates on public participation and citizen engagement. We have explored and illustrated how the maker culture might be able to add a different layer to these ongoing debates and enable critically reflecting on and responding to various problems of the existing citizen engagement practices and, ultimately, of EU democracy. Looking at different cases, described as instances of engagement, we have argued that particular features of making indeed have the potential to enrich and expand the scope of engagement practices and push them ‘beyond the post-it’, ie, beyond standardised, static and discourse-focused forms of science–society– policy engagements. In particular, we have shown how making can contribute to rethinking engagement in terms of material deliberation and co-creation, the inclusion of ‘uninvited publics’, bottom-up problem-framings, the redefinition of expertise with counter-knowledge production, and what it means to be a ‘citizen’. In other words, the maker movement represents a democratic innovation of its own right, and introducing participatory practices based on making could be viewed as a means to enhance citizens’ involvement in EU democratic governance. 66 See, eg, G Monbiot, ‘Covid-19 is Nature’s Wake-up Call to Complacent Civilisation’, The Guardian, 25 March 2020, https://www.theguardian.com/commentisfree/2020/mar/25/covid-19-isnatures-wake-up-call-to-complacent-civilisation.

292  Paulo Rosa, Thomas Völker and Ângela Guimarães Pereira Furthermore, we have demonstrated how making is remaking public participation at the institutional level by casting light on citizens’ terms, frames and strategies of engagement with issues that they care about and on which they are willing to take action.67 This was remarkably visible through the COVID-19 PPE case on the makers’ response to the emergency need for respiratory artefacts during the pandemic. The JRC makerspace is exploring novel ways of deliberating beyond the ‘post-it’. These types of civic intervention can also be seen as a partial response to problems with representative democracies, where those who are elected often do not represent the evolving needs and expectations of their constituencies during the time between elections. As with many grassroots movements, makerspaces are performative of democracy discontent. In this sense, making can be seen as a novel way to rethink the institutionalisation of citizens in both research and policy-making. For EU policy-making specifically, this has implications for how institutions regard the legitimacy of citizens’ interventions. The latter could indeed benefit numerous policies and initiatives, such as the Climate Pact and EU Missions, and help to shape the future of participatory and deliberative democracy in the EU.



67 Puig

de la Bellacasa (n 59).

15 Looking for the Silver Lining The COVID-19 Pandemic as a Window of Opportunity for Citizen Participation in the EU PETAR MARKOVIĆ

I. Introduction By March 2020, when the World Health Organization declared the outbreak of the COVID-19 pandemic, European Union (EU) Member States, one by one, closed their internal and external borders.1 The whole world seemed to have stopped, but nowhere was this more patent than in the EU, the world’s most economically integrated community where freedom of movement had been instrumental in bringing 27 European economies together into a single multilevel polity over a span of seven decades. The rapidly worsening health situation led to the suspension of free movement caused by successive lockdowns during the initial phase of the pandemic, followed by a softer but unequal constraint on free movement which ensued after the introduction of COVID certificates in the latter phase of the pandemic.2 This combined health and free movement crisis joined ranks with Brexit, the rule of law problems and the heated debates on the adoption of the EU’s long-term budget. Together, these crises formed a perfect storm of sorts. What follows is a reflection on how the Union’s weathering of this storm has increased the relative importance of citizen participation in the EU transnational debate in general and in the decisionmaking process about the future direction of the post-pandemic EU in particular. 1 For instance, of the 21 Schengen countries that had reintroduced borders by 21 March 2020, 10 did so unilaterally without previously notifying the European Commission as per the Schengen Borders Code. See European Commission, ‘Only 11 Schengen Members Have Notified EU for Reintroduction of Internal Border Checks’, press release, 21 March 2020, https://www.schengenvisainfo.com/news/ only-11-schengen-members-have-notified-eu-for-reintroduction-of-border-checks. 2 See a critical analysis of the impact of EU Digital COVID Certificates in A Alemanno and L Bialasiewicz, ‘Certifying Health: The Unequal Legal Geographies of COVID-19 Certificates’ (2021) 12 European Journal of Risk Regulation 273.

294  Petar Marković To understand the notion of citizen participation in EU governance in the context of the pandemic, one ought to take a look back at the nature of the European integration project itself. A rather obscure international organisation, founded in the 1950s to render war between Germany and France ‘not merely unthinkable, but materially impossible’,3 by supranationalising the production of coal and steel, has over decades of Treaty revisions evolved into a Leviathan that plays a decisive role in the Europeans’ lives.4 Yet, the European Communities were not initially intended as a democratic project. There was no lofty constitution. There was no ‘We, the People’. On the one hand, the wider public has for decades reaped the benefits of European integration whilst living in a state of relative ignorance about it. On the other hand, without public ‘hindrance’, the EU’s evolution could by and large proceed undisturbed. All this changed at the turn of the century. Succinctly put by Hooghe and Marks, a permissive consensus among the European publics had given way to a constraining dissensus to deeper integration of which the negative referendum results in France and the Netherlands were merely symptoms.5 Responding to this tectonic change, EU institutions have gradually turned towards EU citizens and organised civil society in order to boost their democratic credentials and open up to direct channels of citizen participation.6 When the pandemic started, EU citizens had seven main channels of democratic participation of varying scopes and purposes at their disposal: European elections, the European Citizens’ Initiative (ECI), petitions to the European Parliament (EP), complaints to the European Ombudsman, online public consultations, Citizens’ Dialogues and European Citizens’ Consultations. With the notable exception of the European elections – a form of electoral participation that embodies the EU’s representative and not participatory democracy and which has so far resisted introducing e-voting – all other participation instruments listed here have steadily been transformed to harness the power of information communication technologies (ICT) to turn them into institutionalised e-participation channels linked to EU decision-making procedures and institutions.7 Importantly, these instruments exhibit varying levels of institutionalisation. While the ECI, EP petitions and Ombudsman complaints are certainly institutionalised and formal instruments with legal bases in the Treaties, the remaining ones are merely policy initiatives,

3 Schuman Declaration, 9 May 1950. 4 V Miller, ‘How Much Legislation Comes from Europe?’, House of Commons Library Research Paper 10/62, 13 October 2010. 5 L Hooghe and G Marks, ‘A Postfunctionalist Theory of European Integration: From Permissive Consensus to Constraining Dissensus’ (2009) 39(1) British Journal of Political Science 1–23. 6 On this evolution, see LB García, Participatory Democracy and Civil Society in the EU: Agenda-Setting and Institutionalisation (Basingstoke, Palgrave Macmillan, 2015) 1–41. 7 See an overview of e-democracy case studies in European politics at all levels of governance in L Hennen et al (eds), European E-Democracy in Practice (Cham, Springer, 2020). On the interplay between ICT, petitions to the EP and complaints to the European Ombudsman, see IC Leite, ‘EU Institutions and ICT: A New Challenge in Transparency and Dialogue with Citizens’ (2021) 15(3) Transforming Government: People, Process and Policy 309–18.

Looking for the Silver Lining  295 with some being more ingrained in EU policy making (eg, online consultations) and some very sporadic (eg, European Citizens’ Consultations). This more or less institutionalised EU participation infrastructure is increasingly coupled with a plethora of non-institutional democratic innovations, whereby digital tools are developed and run ‘exclusively by citizens, civic groups and organisations, with the goal to support formal democratic decision-making or to establish an alternative democratic process’.8 The latest addition to the constellation of EU channels of citizen participation, inaugurated on 9 May 2021, is the Conference on the Future of Europe (CoFoE). First suggested by French President Emmanuel Macron in March 2019, the idea of holding the CoFoE was taken up by the President of the European Commission, Ursula von der Leyen, in 2019 as one of the cornerstones of her Commission’s six political priorities, presented as the ‘new push for democracy’.9 Whether because the new Commission President felt emboldened by the first increase in voter turnout at European elections in over two decades or because she sought to make amends for having been appointed in defiance of the Spitzenkandidaten system, the Conference was set in motion. The CoFoE is intrinsically linked to the pandemic in at least three ways. First, originally planned as a two-year process, the Conference was ultimately shrunk to just one year, with a year of preparation having been lost to the pandemic and political infighting over the chairmanship, form and scope of the Conference. Second, the Conference was styled as the beacon of EU democratic rejuvenation,10 following the worrying tendency of pandemic-fuelled democratic backsliding across the Member States.11 Third, after a year filled with great uncertainty and a deficit of trust from both citizens and national governments,12 EU institutions managed to contain all the components of the storm. In December 2020, the EU managed to contain the health crisis, announce a vaccine rollout, negotiate a trade agreement with the UK and broker a historic deal for the Union’s multiannual financial framework for 2021–27 – the largest investment plan in the EU’s history aimed at addressing the consequences of the pandemic. As the most recent avenue for closing the gap between the EU and its citizens, the Conference was intended to signal a move towards a forward-looking and more democratic post-pandemic Union. 8 See a recent overview of these in F Grazian and H Nahr, Next Level Participation: Citizen-Driven E-Democracy Tools (Brussels, European Liberal Forum, 2021). 9 cf U von der Leyen, A Union That Strives for More: My Agenda for Europe (Brussels, European Commission, 2019) 19; European Commission, Communication ‘Shaping the Conference on the Future of Europe’ COM (2020) 27, 22 January 2020. 10 D Boffey, ‘Emmanuel Macron: COVID Highlights Need to “Beef up” EU Powers’, The Guardian, 9 May 2021, https://www.theguardian.com/world/2021/may/09/emmanuel-macron-covid-highlightsneed-to-beef-up-eu-powers. 11 S Russack (ed), The Effect of Covid on European Democracies (Brussels, European Policy Institutes Network, 2021). 12 P Marković and E Avramovska, Under a Double Lockdown: The Impact of the COVID-19 Pandemic on Mobile EU Citizens’ Rights (Brussels, European Citizen Action Service, 2021).

296  Petar Marković Several months into the exercise, at the time of the writing of this chapter, does the CoFoE promise to enhance citizen participation at the EU level in the pandemic and post-pandemic times? To answer this question, section II frames the discussion by placing two long-standing cleavages of EU democratic politics – national versus supranational and representative versus participatory democracy – in the new context created by the COVID-19 crisis. In section III, the chapter gives a brief account of the impact of the pandemic and the related measures by: (i) examining the changes in EU citizens’ attitudes and behaviour towards the EU and their role in EU governance; and by (ii) exploring whether these changes constitute a significant evolution in EU democratic practices. Finally, section IV analyses the aptitude of EU institutional channels of citizen involvement for facilitating citizens’ e-participation. This is carried out through an analysis of the contributions that citizens have made on the CoFoE Multilingual Digital Platform, specifically under the theme of European democracy in the period between the launch of the platform and the end of September 2021. The analysis reveals not only that citizens have used this transnational digital democratic innovation to directly participate in the debate on the future of Europe, but also that they have asked for participation to be further embedded in the EU’s future institutional architecture.

II.  New Crisis, Old Stakes The initial responses to the health crisis unveiled two of the EU’s many discrepancies encapsulated by the géométrie variable of the relationship between EU institutions and its Member States and citizens. First, in the absence of EU competences to address the health crisis head-on, Member States resorted to unilateral action.13 A cacophony of national measures that ensued represented a typical collective action problem: actions that appeared as rational from the perspective of an individual Member State resulted in a collectively suboptimal outcome. To mitigate the spread of the pandemic, Member States suspended the freedom of movement. This proved similar to the migration crisis, when, under pressure to react to the perceived surge of immigrants at their borders, some Member States took divergent unilateral action, thereby threatening the functioning of the Schengen Agreement, itself the cornerstone of EU citizenship.14 Second, the EU’s response to the health crisis was also similar to the euro crisis, since they both induced recourse to government-led solutions at the expense of

13 See further AM Pacces and M Weimer, ‘From Diversity to Coordination: A European Approach to COVID-19’ (2020) 11 European Journal of Risk Regulation 283–96. 14 S Salomon and J Rijpma, ‘A Europe without Internal Frontiers: Challenging the Reintroduction of Border Controls in the Schengen Area in the Light of Union Citizenship’ (2022) German Law Journal (forthcoming), https://doi.org/10.1017/glj.2021.60.

Looking for the Silver Lining  297 parliamentary action at the national and EU levels. Consequently, we witnessed anew the tendency of ‘executive dominance’15 and the augmentation of ‘policy without politics’16 of EU multilevel governance. Executives, national and supranational alike, and not citizens and their elected representatives were the protagonists of crisis decision-making. Faced with crises, EU governance seems to have drifted further away from the Lisbon Treaty goal of enhancing EU citizenship and citizens’ political participation.17 In the case of both unilateral and executive action, it is argued here that the role of citizens was marginalised. The onset of the COVID-19 pandemic laid bare and exacerbated the contradictions that have fuelled EU politics in recent decades. This is demonstrated below through the lens of two types of tension at the root of the health crisis: the tension between supranational and national democracy; and the tension between representation and participation.

A.  The Tension between Supranational and National Democracy Parts of public opinion and of academia still consider European integration a zerosum game, whereby any transfer of policy-making powers from the national to the EU level is perceived as undemocratic.18 At the same time, transnational issues, of which the pandemic is the prime example, cannot effectively be dealt with by any Member State acting alone. Hence, we inevitably face a democratic dilemma, whereby neither solely EU action nor solely national action ‘can keep the promise of the democratic nation state to be both input- and output-legitimate: the delegation of competences to inter- or supranational bodies leads to a reduced input legitimacy whilst non-delegation implies a limited output-legitimacy’.19 This tension was clearly demonstrated during the pandemic. Health permeates numerous EU policies – from food safety to public security, and from consumer protection to wildlife conservation. Yet, saving lives, which is the core objective of health policy, is still a national competence. This unsustainable situation finally pushed the Commission to call for a European Health Union that would make it possible to address cross-border health threats in the future both during and beyond the ongoing health crisis.20 Crucially, this bold and necessary move 15 cf D Curtin, ‘Challenging Executive Dominance in European Democracy’ (2014) 77(1) Modern Law Review 1–32. 16 VA Schmidt, ‘Democracy and Legitimacy in the European Union Revisited: Input, Output and “Throughput”’ (2013) 61(1) Political Studies 2–22. 17 V Cuesta Lopez, ‘The Lisbon Treaty’s Provisions on Democratic Principles: A Legal Framework for Participatory Democracy’ (2010) 16(1) European Public Law 123–38. 18 See, eg, G Majone, ‘The Referendum Threat, the Rationally Ignorant Voter, and the Political Culture of the EU’, University College Dublin Working Papers in Law, Criminology & Socio-legal Studies No 04/2009. 19 J Neyer and A Wiener (eds), Political Theory of the European Union (Oxford, Oxford University Press, 2010) 172. 20 See more in Marković and Avramovska (n 12).

298  Petar Marković towards envisioning a more harmonised and communitarised level of health protection did not come about merely as the result of internal pressures, but is also due to citizen support. Namely, as Eurobarometer data from the summer of 2020 clearly indicates, and having grappled with the first months of the pandemic, ‘over two-thirds of EU citizens now expect the EU to have a more active role in protecting their health, particularly in protecting them from health threats that transcend national borders’.21 The unprecedented pandemic situation seems to be changing citizens’ attitudes in the direction of European solutions to transnational problems in the area of health. This attitudinal change is also translating into institutionalised EU citizen participation with the first COVID-themed ECI registered by the European Commission asking for improved global access to vaccines and other medical treatment.22 Similarly, the issuing of European bonds as part of the project to finance the post-pandemic recovery led some to speculate that this could lead to a European ‘Hamiltonian’ moment, a reference to the US founding father who initiated the mutualisation of state debt following the Revolutionary War which solidified the unity of the new Union.23 No matter how durable these advances along the national–supranational axis prove to be, they will only be inputlegitimate if echoed in the ideas put forth by the citizens in the CoFoE process.

B.  The Tension between Representation and Participation For the most of its history, the EU has been based primarily on representative democracy (Article 10 of the Treaty on European Union (TEU)), with Member States as the primary pouvoir constituant. The more recent efforts to strengthen EU participatory democracy and citizen participation seek to address the perceived crisis of representative democracy at both the national and EU levels.24 As words like ‘diagnosis’ and ‘malaise’ began being used more frequently to describe this state of affairs, a vast number of calls were made by academics and practitioners to introduce ‘remedies’ in the form of diverse mechanisms of direct, participatory and deliberative democracy as a way to fight this crisis from the input side of the EU’s political system.25 21 A Alemanno, ‘Towards a European Health Union: Time to Level up’ (2020) 11 European Journal of Risk Regulation 721–25. 22 European Commission, ‘European Citizens’ Initiative: Commission Decides to Register “Right to Cure” Initiative’, 21 August 2020, https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1499. 23 O Issing, ‘The COVID-19 Crisis: A Hamilton Moment for the European Union?’ (2020) 23(2) International Finance 340–47. 24 See, eg, H Kriesi, ‘Is There a Crisis of Democracy in Europe?’, (2020) 61 Politische Vierteljahresschrift 237–60; G Dimova, Democracy beyond Elections (Cham, Palgrave Macmillan, 2020) 199–221. 25 See the works illustrating a decade of development of such literature in B Geissel and K Newton, Evaluating Democratic Innovations: Curing the Democratic Malaise? (Abingdon, Routledge, 2012); A Alemanno and J Organ (eds), Citizen Participation in Democratic Europe: What Next for the EU? (Lanham, MD, Rowman & Littlefield/ Colchester, ECPR Press, 2021).

Looking for the Silver Lining  299 This tension is also increased by the ambiguity with which institutional channels of EU citizen participation are governed. The ECI exemplifies this poignantly. Namely, the Commission, acting as both the judge and jury of the incoming ECIs, has preferred to highlight the ECIs’ political aspect as a tool for initiating transnational debate rather than their substantive aspect as a tool for achieving actual legislative impact.26 We see the same ambivalence when it comes to the CoFoE. On the one hand, the Joint Declaration on the Conference on the Future of Europe – signed on 10 March 2021 by the Presidents of the EP, the Council and the Commission – only vaguely refers to a feedback mechanism envisaged to transform citizens’ input into concrete recommendations and subsequent political action. On the other hand, the Joint Declaration encourages citizens to freely debate issues without ‘a predetermined outcome and without limiting the scope to pre-defined policy areas’,27 but evades the contentious topic of Treaty change, which, although called for by the EP and European civil society organisations (CSOs), remains the taboo of EU politics. If citizens’ demands voiced during the Conference would necessitate a Treaty change and remain unheard, then the pendulum will not have swung away from representation, jealously guarded by the Member States, and will not have swung towards meaningful and impactful participation by the citizens. If the pendulum is indeed moving regarding citizens’ views about the level at which transnational issues ought to be resolved as the result of the pandemic (ie, the tension between supranational and national democracy), should this not be reflected in the balance between the two poles of citizens’ democratic involvement at the EU level (ie, the tension between representation and participation)? To dive deeper into this question, the analysis now turns to the extent to which citizen attitudes have changed during the past two years.

III.  The Pandemic Moment The continent-wide public debate on the Constitutional Treaty was once described by Habermas as a missed opportunity for the formation of a European public sphere  – an almost ‘constitutional moment’ that would have led to a true Constitution for the EU and that would have represented a starting point for European solidarity and critical self-reflection.28 COVID-19 could serve as another such opportunity. Indeed, the pandemic has not only hindered citizen

26 K Nicolaïdis and P Marković, ‘10 Years since the Adoption of the First ECI Regulation: Cause for Celebration or Concern?’, European Citizens’ Initiative Forum, 29 March 2021, https://europa.eu/ citizens-initiative-forum/blog/10-years-adoption-first-eci-regulation-cause-celebration-or-concern_fr. 27 Joint Declaration of the EP, the Council and the European Commission on the Conference on the Future of Europe [2021] OJ C91 I/1. 28 J Habermas, ‘Why Europe Needs a Constitution’ in R Bellamy (ed), Constitutionalism and Democracy (Abingdon, Routledge, 2016) 507–28.

300  Petar Marković participation due to constraints on free movement, it has also enabled it, as is evident from the evolution of the attitudes of Europeans towards the EU in the course of the COVID-19 crisis and from the data about digital forms of participation. Can we therefore talk about a ‘pandemic moment’ for EU democratisation? When lockdowns swept across Europe, the predominant perception among citizens, the media and most national politicians was that the EU’s response was confusing and insufficient. Conducted in the last week of April and the first week of May 2020, a survey of 11,000 people in nine Member States found that some 46% of the Europeans polled believed that the EU had not lived up to its responsibilities in tackling the coronavirus crisis. In some countries, this dissatisfaction was particularly acute. No less than 63% of the Italians and 61% of the French people polled disagreed that the EU fulfilled its duties.29 However, almost two years into the pandemic, trust in the EU stands at its highest level since 2008 – 49% – compared to 37% concerning trust in national governments. Moreover, optimism about the EU’s future has reached its highest level since 2009 – a feeling expressed by 66% of all the respondents (67% in Italy and 53% in France).30 An equally favourable but more nuanced picture is painted by the attitudes of Europeans regarding their role in EU decision-making. A 51% majority of respondents state ‘ordinary citizens’ as the most important actors to be involved in the CoFoE, leaving national governments and EU institutions behind by roughly 10% respectively. However, at the same time, a larger majority of 55% still deem European elections to be the most effective way to make their voices heard in EU politics. This shows that EU citizens find that the electoral form of political participation pays off more in terms of their influence than the available EU channels of non-electoral participation.31 Contrasting these two figures, we see that the share of those who find that citizens should be the drivers of political change in the EU (via the CoFoE) is only 3% lower than the share of those who still find that representative democracy is the optimal channel articulating their political demands – a narrow gap that signals increasing perception of the importance of participatory democracy in the EU. Most importantly, ‘six in ten Europeans (60%) agree that the coronavirus crisis has made them reflect on the future of the European Union’.32 Yet, we are witnessing an accelerated change in the intensity and medium of political engagement during the pandemic. As street gatherings, public protests and party rallies were rendered impossible by protracted lockdowns, civic engagement took a more pronounced digital form. Online co-deciding, crowdsourcing platforms, e-petitions and other forms of online activism now seem to flourish. For example, in 2020, the EP received a record number of 1,573 petitions 29 I Krastev and M Leonard, ‘Europe’s Pandemic Politics: How the Virus Has Changed the Public’s Worldview’, ECFR Policy Brief, 24 June 2020. 30 Standard Eurobarometer 95, Spring 2021. 31 Special Eurobarometer 500 ‘Future of Europe’, 2021. 32 ibid.

Looking for the Silver Lining  301 (80%  of them submitted online), representing an increase of 16% compared to 2019.33 The pandemic road has been bumpier for ECIs, which require an immensely more concerted transnational civic effort to be implemented. Acknowledging this, the European Commission extended the period for collecting signatures of support (also mostly done online) in respect of five initiatives which were in the process of signature collection when the pandemic struck. But this is not just a question of medium and switching from a physical to a virtual setting for political activism. For the first time in their lifetime, the generation of young Europeans born at the time or after European citizenship was introduced in the Treaty of Maastricht in 1993 felt what life is like without the benefits of one of European citizenship’s greatest rights – the freedom of movement.34 Having experienced the impact of the different types of lockdown across the Member States, many of them have grown acutely aware of the importance of safeguarding and advancing their citizenship rights. So, what is it that the citizens are requesting regarding the future of the EU?

IV.  Citizens’ Demands on the CoFoE Digital Platform: A Preliminary Analysis The CoFoE Multilingual Digital Platform was launched on 19 April 2021, ahead of the formal inauguration of the Conference in Strasbourg on 9 May 2021. This transnational digital democratic innovation is intended as the Conference’s central hub, a dedicated virtual space for sharing all contributions, including citizens’ ideas and decentralised events, as well as the outputs from European Citizens’ Panels and Conference Plenaries. However, it is the ideas proposed by citizens – arguably the most valuable participatory feature of the platform – that I would briefly like to draw lessons from here. Citizens can put forward their ideas, endorse other citizens’ ideas and comment on them in 24 official languages of the EU. Together with other contributions on the platform, these ideas serve as input for the work done in the European Citizens’ Panels and the Conference Plenary. While the platform remained open until 20 February 2022, it is instructive to take a provisional look at the ideas posted by Europeans in the first half of its existence (19 April–30 September 2021),35 and examine how they relate to the long-standing political cleavages identified above – national versus supranational democracy and representative versus participatory democracy – as well as with the taboo of Treaty change.

33 PETI Committee, ‘Health, Fundamental Rights the Most Prominent Petition Topics in 2020’, press release, 9 November 2021. 34 See more on the impact of the pandemic on young Europeans in Eurofound, Impact of COVID-19 on Young People in the EU (Luxembourg, Publications Office of the European Union, 2021). 35 This is by no means a comprehensive qualitative analysis of the digital platform.

302  Petar Marković The platform mirrors the Conference Plenary with nine broad topics offered to citizens for reflection and debate. The ‘Other ideas’ section was added in order to fulfil the promise in the Joint Declaration that citizens would not be constrained by a pre-defined set of topics. Among all these topics, that which centrally addresses the future of citizen participation is that of ‘European democracy’. This topic is, in turn, divided into several categories. The ‘Have your say on European Union policies’ category asks how citizens can be further engaged in EU affairs both during and outside election periods. The ‘Protecting our democracies’ category invites citizens to reflect on innovative ways of ensuring free and fair elections. The remaining two categories deal with media and disinformation respectively. The most relevant for the present analysis are the first two categories, which are presented below according to the two tensions considered in this chapter. The preliminary findings presented here are based on the observation of citizen and CSO inputs in the category of ‘European democracy’ posted on the platform. Whilst limited, the insights thus gained can help to identify significant trends. These are visually schematised in Figure 15.1 below through an abstraction of the content of citizens’ proposals. Figure 15.1  Typology of citizen contributions on the CoFoE multilingual digital platform Calls for institutional reform Calls in the direction of a more federal EU Changing the EU institutions

Introducing new channels of citizen participation

Calls in the direction of rolling back integration

The majority of proposals posted in the observed period tackle institutional reform. In fact, while the titles of some 50 proposals mentioned such reform explicitly, roughly two thirds of the total of around 1,000 ideas within the topic of ‘European democracy’ proposed some sort of institutional change. Citizens seem especially keen on changing and strengthening the institutional architecture of the EU. While the proposals range from general to very concrete suggestions, the first finding is that citizens echo one of the five claims of the ‘standard version of the democratic deficit’ as articulated by Andreas Follesdal and Simon Hix, namely that ‘the European Union is too distant’ and that ‘citizens cannot understand the EU’ because its institutional set-up is not similar enough to the political systems of national democracies.36 That is why a substantial volume of ideas went in the direction of a federal Europe. At least 54 ideas explicitly endorsed a federal Union,

36 A Follesdal and S Hix, ‘Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’ (2006) 44(3) Journal of Common Market Studies 533–62, 536.

Looking for the Silver Lining  303 which represents the largest cluster of individual ideas. In contrast, no more than 14 ideas advocated rolling back integration, either through giving more freedom and respect to the identity of the Member States or through intergovernmental cooperation in the areas of mutual interest but without recourse to communitarisation. Among the more concrete calls for institutional reform, the institution most frequently addressed is the EP. At least 47 proposals asked that more powers be granted to the directly elected representatives of European citizens, whereas at least 20 ideas asked that the EP be granted the power of legislative initiative instead of the Commission. Tied to both the federal argument and the EP, at least 10 proposals asked for the Parliament to exercise fiscal sovereignty at the EU level. There were also quite a few ideas on European elections. Interestingly, the single most supported idea – with at least 21 endorsements – asked for the introduction of transnational lists.37 Other electoral ideas proposed solutions to voter turnout, such as through the introduction of digital voting, postal ballots or same-day voter registration. Several posts asked for the introduction of voting rights for noncitizen residents in the EU. The reform of other EU institutions was also widely discussed. The two most frequent reform ideas were: abolishing the veto/unanimity in the Council and directly electing an EU President with suggestions that she or he come from the European Commission or the Council. Once again, citizens see the institutional future of the EU, as a transnational political system, developing with more federal attributes with which they are familiar in their respective Member States. A large share of the ideas also fell under citizens’ representation, be it through the EP or through their respective governments represented in the Council. However, unsurprisingly and very much according to the basic intention of the CoFoE, citizens are very assertive and creative when it comes to ideas to enhance their participation.38 Namely, they suggested strengthening citizen engagement and a sense of ownership as regards EU decision-making. The most significant among these was the call to perpetuate the existing CoFoE infrastructure and turn it into a permanent EU mechanism for citizen participation that would complement and balance representative democracy. In the realm of e-participation, several suggestions revolved around making the digital platform permanent or creating an online one-stop-shop that would pull all existing institutionalised EU citizen participation channels. Others asked that a user-friendly forum be established either to discuss all EU legislative proposals or as a venue for citizen lobbyists to channel their views.

37 See the most recent academic commentary on this in O Costa, ‘Can the Conference on the Future of Europe Unlock the EU Elections Reform? Reflections on Transnational Lists and the Lead-Candidate System’ (2020) 26(5–6) European Law Journal 460–71; B Crum, ‘Why the European Parliament Lost the Spitzenkandidaten-Process’ (2022) Journal of European Public Policy (forthcoming), https://doi. org/10.1080/13501763.2022.2032285. 38 A certain amount of conceptual confusion is noticeable since citizens often conflate participatory, deliberative and direct democracy.

304  Petar Marković When it comes to deliberation, at least 26 citizens and CSOs demanded a greater use of citizen assemblies and panels.39 When it comes to direct democracy, at least 19 proposals would like to see it strengthened at the EU level. Additionally, some ideas related to referenda were very concrete and innovative, such as the one asking for registered ECIs to be decided on directly by citizens in referenda, or the one proposing the introduction of EU-wide referenda on the most important questions of EU institutional reform. Significantly smaller was a set of ideas pulling in the other direction, asking for national democracies to be safeguarded by making national referenda on all matters of EU institutional reform obligatory.

V. Conclusion Although it is too early to make definitive conclusions about citizen participation in the wake of the pandemic, because neither it nor the CoFoE has ended at the time of the writing of this chapter, three strong tendencies are clearly visible. First, citizen inputs on the CoFoE digital platform are mostly congruent with the latest Eurobarometer public opinion polls: Europeans realise more than ever before that transnational institutional and political solutions are necessary to address transnational issues, like the pandemic. Judging by citizens’ ideas, politics beyond the state in Europe will only grow stronger and its retreat seen during the pandemic is likely to have been temporary. Second, in addition to much more transparent and effective representation, citizens demand that the Union should fully embrace a wide array of tools for fostering citizen participation and deliberation at the EU level. This is especially true of digital tools. The rise in the digital dimension of active citizenship observed during the pandemic is also not a passing tendency, but is here to stay. Third, and finally, the breadth and depth of institutional change required to implement the majority of proposals discussed in this chapter under the platform heading of ‘European democracy’ is such that a change of the Treaties would be inevitable. The Joint Declaration defined the Conference as a ‘citizens-focused, bottom-up exercise’ (emphasis in original). It is clear then that the post-pandemic EU will only be citizen-centred if the Conference results in a Treaty change that will take on board some of the most popular citizen demands.



39 See

more on this in ch 9 by James Organ in this volume.

16 Conclusions DAVOR JANČIĆ

This book has analysed the evolving institutionalisation of citizens in EU governance. It has done so by examining the concepts of citizenship and democracy beyond elections and from the perspectives of democratic participation and deliberation.1 The objective was to enrich the literature on the political dimension of European citizenship, which has most recently focused on its conceptualisation, free movement rights and Brexit,2 and to further develop the literature on citizens’ non-electoral democratic agency,3 which acknowledges the insufficiencies of representative democracy as the sole vehicle for political expression. The idea of greater citizen engagement in decision-making is neither new nor purely European. It coexists with similar movements elsewhere around the globe, within and beyond different countries, regions and international organisations.4 However, in the European Union (EU), the citizen as a standalone democratic actor has gained increasing currency not only in theory but also in practice. The Commission’s 2020 EU Citizenship Report, for instance, finds that citizens’

1 See most recently A Alemanno and K Nicolaïdis, ‘Citizen Power Europe’ (2021) 3 Revue Européenne du Droit 7–15. 2 See, eg, N Cambien et al (eds), European Citizenship under Stress: Social Justice, Brexit and Other Challenges (Leiden, Brill, 2020); AJ Menéndez and EDH Olsen, Challenging European Citizenship: Ideas and Realities in Contrast (Cham, Palgrave Macmillan, 2020). 3 See, eg, S Blockmans and S Russack (eds), Deliberative Democracy in the EU: Countering Populism with Participation and Debate (Brussels, CEPS/London, Rowman & Littlefield, 2020); A Alemanno and J Organ (eds), Democratic Participation in a Citizen’s Europe: What Next for the EU? (Colchester, ECPR Press/New York, Rowman & Littlefield, 2021). 4 S Elstub and O Escobar (eds), Handbook of Democratic Innovation and Governance (Cheltenham, Edward Elgar, 2019); JS Fishkin, Democracy When the People are Thinking: Revitalizing Our Politics through Public Deliberation (Oxford, Oxford University Press, 2018); J DeBardeleben and JH Pammett (eds), Activating the Citizen: Dilemmas of Participation in Europe and Canada (Basingstoke, Palgrave Macmillan, 2009); M Vlerick, ‘Towards Global Cooperation: The Case for a Deliberative Global Citizens’ Assembly’ (2020) 11(3) Global Policy 305–14; O Fox and P Stoett, ‘Citizen Participation in the UN Sustainable Development Goals Consultation Process: Toward Global Democratic Governance?’ (2016) 22(4) Global Governance: A Review of Multilateralism and International Organizations 555–73; OECD, Innovative Citizen Participation and New Democratic Institutions: Catching the Deliberative Wave (Paris, OECD Publishing, 2020).

306  Davor Jančić involvement in deliberations on complex issues faced by EU institutions is ‘central to democratic legitimacy’.5 The holding of the Conference on the Future of Europe (CoFoE) is the latest recognition of this. The Conference not only directly involved citizens in deliberations on the EU, but also yielded a number of proposals on developing EU democracy.6 These include a greater say for civil society organisations, a ‘Youth Check’ for EU legislation, the drafting of a charter on citizen participation in EU affairs and the holding of periodic citizens’ assemblies.7 The last of these proposals has been taken up by the Commission, which promised a new generation of citizens’ panels to be launched in the near future.8 In fact, as Commission President von der Leyen indicated in her 2022 State of the Union Address, citizens’ panels ‘will now become a regular feature of our democratic life’.9 At the same time, the COVID-19 pandemic has brought with it both challenges and opportunities for democratic participation.10 Emergency decision-making with little or no oversight contrasted with the maximisation of online participatory channels. In light of these developments, and taking a contextual and systemic approach to predominantly legal analysis, this book inquired into the already existing EU instruments of participatory and deliberative democracy, recent citizen consultation exercises, and the potential new mechanisms that could in the near future become a part of the EU’s democratic settlement. It observed citizens as a nascent collective institution in EU public law, one with a constantly expanding set of political rights and instruments of action. As Commission Vice-President Dubravka Šuica pointed out on the occasion of the International Day of Democracy in September 2022: ‘Citizens are not an object of democracy. They are primarily participants, across all generations.’11 The chapters of this book accordingly illuminate different aspects of citizens’ ongoing institutionalisation in the EU. Part I, focusing on the more conceptual aspects, started with the editor’s introductory overview of the reasons underlying the expansion of citizen-oriented EU initiatives and of the limitations to electoral and representative modes of European citizenship and democracy. Susanna Cafaro then deconstructed the EU through

5 European Commission, ‘EU Citizenship Report 2020: Empowering Citizens and Protecting Their Rights’ COM (2020) 730, 15 December 2020, 8. 6 R Youngs, ‘EU Democracy after the Conference on the Future of Europe’, Carnegie Europe, 12 May 2022. 7 European Committee of the Regions, ‘Conference on the Future of Europe: Report on the Final Outcome’, 19 May 2022, 79–80. 8 European Commission, Communication ‘Conference on the Future of Europe: Putting Vision into Concrete Action’ COM (2022) 404, 17 June 2022, 5. 9 U von der Leyen, ‘2022 State of the Union Address’, 14 September 2022, https://ec.europa.eu/ commission/presscorner/detail/ov/speech_22_5493. 10 See the reflections in M Poiares Maduro and PW Kahn (eds), Democracy in Times of Pandemic: Different Futures Imagined (Cambridge, Cambridge University Press, 2020). 11 European Commission, ‘International Day of Democracy: Joint Statement by the High Representative/Vice-President Josep Borrell and Vice-President Dubravka Šuica’, 15 September 2022, https://ec.europa.eu/commission/presscorner/detail/en/STATEMENT_22_5545.

Conclusions  307 the notions of politeia and demoi to demonstrate how participatory democracy joins forces with active citizenship in order to narrow the gap between citizens and EU institutions in a Union with dominant national identities. With citizens’ participation often being mediated by the civil society, Luis Bouza García showed that although the move towards greater citizens’ actorness at the EU level has not fundamentally altered the dominance of established insider civil society organisations in accessing EU policy-making, it has created new opportunities for contestation for outsider organisations. In Part II, turning to the participatory instruments of European citizenship, Henri de Waele depicted petitions to the European Parliament (EP) as the most significant, albeit weak and under-utilised, means of citizens’ individual empowerment. While the EP’s Petitions Committee has thus far been effective in mainstreaming the topics covered by petitions, the instrument’s more meaningful contribution to EU democratic legitimacy hinges to a great extent on the nature of the Commission’s future engagement with it. Similarly, Marco Inglese was optimistic about the European Ombudsman’s contribution to good administration in the EU, owing to the high rates of EU institutions’ compliance with the Ombudsman’s recommendations and decisions. Although the Ombudsman’s effectiveness is hamstrung by the non-binding character of its pronouncements, the latter foster respect for the principle of sincere cooperation and help citizens to exercise a degree of indirect oversight over EU decision-making. In relation to this, Natasa Athanasiadou delved into the transparency of the EU legislative process and the citizens’ right of access to documents, arguing that a fair balance needs to be struck between these rights and EU institutions’ independence in order to secure sufficient space for interinstitutional consensus building. This, she argued, can be achieved through greater recourse to proactive transparency in the spirit of the institutions’ ‘co-thinking’ with citizens and through advance publication of legislative documents as opposed to reliance on passive transparency based on access requests. In the first section of Part III, which concentrated on citizen participation concerning the European integration process as such, Davor Jančić gave an assessment of French President Emmanuel Macron’s democratic conventions and the accompanying wider consultations at the EU level. While his critique exposes substantive and procedural risks to the effectiveness of this type of public consultation, it also underlines that this was a milestone initiative which represents a clear recognition of the importance of including citizens in EU deliberations on the Union’s future and one which has set the ground for the CoFoE. As shown by Maaike Geuens, previous national deliberative democracy experiments, like the G1000 and the Ostbelgien model in Belgium, are sources of best practice and have also informed the organisation of the CoFoE. She also argued that top-down and hybrid citizen participation arrangements can be effective if adequate participatory guarantees are ensured. However, the permanence of and follow-up to deliberative forums are critical to successful citizens’ inclusion in democratic governance. This was followed by James Organ’s call for the establishment of a decentralised or

308  Davor Jančić centralised EU Citizens’ Assembly. Based on empirical insights from an EU-funded project on citizens’ assemblies and the CoFoE citizens’ panels, he submitted that the success of an institutionalised EU Citizens’ Assembly would depend on its representativeness, inclusivity and responsiveness to citizens’ preferences. In the second section of Part III, which centred on citizen participation concerning EU legislation, Paolo Zicchittu delved into the Commission’s prelegislative consultations. Examining their practical use, he held that while they have effectively mobilised wide stakeholder participation, they are dominated by industry and business groups rather than by civil society organisations and individual citizens, which hampers equal interest representation in the consultations. He further found that the COVID-19 pandemic had no adverse impact on the consultations, but that their transparency, despite the Commission’s initiatives to improve it, remains weak. The following two chapters analysed the legislative and judicial contexts of the European Citizens’ Initiative (ECI). In his assessment of the 2019 reform of the ECI’s legal regime, Mario Mendez contested the prevalent academic narrative of this instrument’s weakness, arguing that the latter has become more user-friendly and participatory. He also submitted that the ECI goes further than many national agenda initiatives of a similar nature, casting it as a valuable addition to EU democracy. Jasmin Hiry-Lesch then demonstrated the reticence of the Court of Justice towards considering the principle of participatory democracy in its ECI-related case law, allowing the Commission to continue to give this instrument very limited practical effect. She examined the Finnish and Swiss citizens’ initiatives to suggest that, as an instrument that is still assuming its optimal shape, the ECI is presented with the options of becoming legally binding or of having organisers’ expectations of it considerably lowered. That the European Economic and Social Committee (EESC) has had a notable role in supporting the ECI and participatory democracy in general was shown by James Organ and Nikos Vogiatzis. They argued that, despite its advisory character, the EESC has raised the ECI’s profile and has helped to give citizens a degree of indirect influence in the EU legislative process through the agency of civil society organisations. However, any potential upgrading of the EESC to the status of an institutional facilitator and mentor in the ECI process raises issues concerning the EU institutional balance, above all the Committee’s coexistence with the EP and the Commission. Part IV was devoted to the challenges of and future prospects for citizen participation in the EU. In their critique of the classic town hall-style, discoursebased means of participation, Paulo Rosa, Thomas Völker and Ângela Guimarães Pereira turned to the maker culture and the experience of the Commission’s Joint Research Centre Makerspace to propose that the EU should have greater recourse to making, which would allow material deliberation, co-creation and prototyping to enrich citizen engagement practices. They also maintained that while the COVID-19 pandemic has made citizens’ physical participation more difficult, it has also generated momentum for makers to find innovative responses to citizens’ needs. Finally, before this concluding chapter, Petar Marković closed by showing how the coincidence of the COVID-19 pandemic, the CoFoE and the shifts in

Conclusions  309 citizens’ attitudes towards the EU signal a trend favouring greater direct citizen participation in EU governance. However, in order for the post-pandemic EU to become truly citizen-focused, as the CoFoE proclaims this exercise to have been, a Treaty change would be necessary. These chapter insights, in turn, have exposed two important cross-cutting tensions. The first one is between the citizens’ proclaimed empowerment and their practical marginalisation. While citizens are becoming increasingly institutionalised through a growing number of possibilities to pronounce on EU agendas and policies, they have thus far been unable to exercise any significant influence on EU affairs. This state of affairs can be attributed to constraints stemming from the absence of a European public sphere, the Commission’s primarily dialogical approach to citizens as political actors, the lack of consensus among EU institutions and the Member States over the modalities and extent of citizens’ integration into EU decision-making structures, and the reaffirmation of the European Council and the Council in successive crises in what the literature has called new intergovernmentalism.12 Therefore, while the various avenues of citizen engagement complement representative democracy, it is uncertain whether they will have a tangible impact on traditional politics and the existing governance patterns. The second tension juxtaposes the proliferation of non-electoral channels of EU democracy with the lack of coherence between them. These channels seem to be developing ad hoc rather than according to a well-designed blueprint. As a consequence, the relationships between the different participatory instruments and platforms for citizens’ input remain vague. They vary from formal instruments to informal ones, from policy-specific ones to those focusing on European integration as a whole, from regular to occasional to one-off consultations, from those operating in open formats to those of a more closed nature, from those empowering mostly business groups and civil society organisations to those trying to reach the regular citizen, from top-down dialogues to bottom-up debates, and from those that develop at the national level to those trying to bridge both the national and the EU levels to purely EU-level initiatives. Yet, the objectives, legal regime and mutual complementarity of these instruments and platforms are not always clear-cut. Their institutional design, rules, structures, representativeness, inclusiveness and influence need further elaboration from the perspective of the entire EU’s system of participatory and deliberative democracy so as to achieve systemic coherence and generate added value. Despite these tensions, citizens’ greater incorporation into EU democratic governance has one significant advantage, which is the raised level of awareness among EU institutions and the Member States of the legitimising value of giving citizens a say on law and policy beyond voting in elections and referendums. The

12 S Fabbrini and U Puetter, ‘Integration without Supranationalisation: Studying the Lead Roles of the European Council and the Council in Post-Lisbon EU Politics’ (2016) 38(5) Journal of European Integration 481–95.

310  Davor Jančić CoFoE may prove to be a critical juncture in stimulating a robust institutional response to citizens’ recommendations in the years to come, thus helping to increase the credibility and effectiveness of participatory and deliberative components of EU democracy. As transpires from Commission Vice-President Šuica’s Foreword to this volume, the CoFoE has helped to ratchet EU democracy up: citizens have become an inextricable part of the Union’s democracy. Yet, the kind of ‘citizens’ Europe’ that will form in the following decade depends not only on the manner in which the Commission delivers on its commitment to implement the CoFoE recommendations, but also on the willingness of the other institutions at the national and EU levels to strengthen citizens as direct democratic actors in the Union. The spirit of co-creation and co-ownership with citizens has thus pierced the EU policy-making veil and has become the norm. Recent initiatives corroborate this finding. The European Climate Pact, launched in December 2020 as part of the European Green Deal,13 and EU Missions, launched in September 2021 as part of Horizon Europe 2021–27 to address the EU’s five key research priorities (Climate, Cancer, Ocean, Cities and Soil),14 both seek to engage with citizens, communities and organisations and build a more inclusive Europe that legislates in tune with the public’s preferences. It is therefore fair to say, as Vice-President Šuica did at the September 2022 hearing on the conclusions of the CoFoE organised by the EP’s Committee on Constitutional Affairs (AFCO), that owing to the rise of citizenfocused initiatives, ‘European democracy will never be the same again’.15 What we do not know, and what future research should focus on, is the effect that the changes surveyed in this book will have on the existing decision-making institutions and processes at the European, national and subnational levels, what their impact will be on non-state actors, how they may contribute to the creation of a European public sphere and how they may shape substantive policy solutions.

13 European Commission, ‘The European Green Deal’ COM (2019) 640, 11 December 2019, 22; European Commission, ‘European Climate Pact’ COM (2020) 788, 9 December 2020. 14 Article 8 of Regulation (EU) 2021/695 of the European Parliament and of the Council of 28 April 2021 establishing Horizon Europe – the Framework Programme for Research and Innovation, laying down its rules for participation and dissemination, and repealing Regulations (EU) No 1290/2013 and (EU) No 1291/2013 [2021] OJ L170/1; European Commission, ‘European Missions’ COM (2021) 609, 29 September 2021, 6. 15 EP, AFCO Hearing on the ‘Conclusions of the Conference on the Future of Europe’, 1 September 2022, https://www.europarl.europa.eu/committees/en/hearing-on-the-conclusions-ofthe-confer/product-details/20220829CHE10561. The speech that Vice-President Šuica delivered at this hearing can be found at https://ec.europa.eu/commission/commissioners/2019–2024/suica/ announcements/vice-president-suica-delivers-speech-ep-afco-committee-cofoe_en.

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334

INDEX Introductory Note References such as ‘178–79’ indicate (not necessarily continuous) discussion of a topic across a range of pages. Wherever possible in the case of topics with many references, these have either been divided into sub-topics or only the most significant discussions of the topic are listed. Because the entire work is about ‘citizenship’ and ‘participation’, the use of these terms (and certain others which occur constantly throughout the book) as an entry point has been restricted. Information will be found under the corresponding detailed topics. access to documents  10, 12, 14, 95, 105–12, 114–15, 118, 122–23 to information  106, 111, 122, 162 accountability  4, 8, 10, 14, 29, 93, 101, 105 accreditation  55–56 active citizenship  35–38, 43, 49, 261, 304, 307 actors  7, 60–61, 100, 102, 159–60, 207–9, 212, 287–90 democratic  128, 305, 310 institutional  10, 181, 232 local  22, 138, 142 political  118, 309 public law, see public law actors administration, good  12, 14, 29, 92–93, 96–97, 102–3, 307 administrative procedures  14, 116 advisory bodies  30, 230, 252, 257, 262, 269 aerial mapping, DIY  280–81, 287–89 AFCO (Constitutional Affairs Committee)  185, 188, 310 agenda initiatives  213–15, 218, 220, 231, 248 domestic/national  216, 219, 232, 308 agenda-setting  16, 29 instrument  226, 256 tools  58, 250 ALDE (Alliance of Liberals and Democrats)  138 Alliance of Liberals and Democrats (ALDE)  138 animal health  24 assemblies  20–21, 26–27, 155–57, 171, 174, 176–77, 181, 186 Austria  162, 214, 218, 286 confiscation of documents  82–83

Ban Glyphosate  23, 225, 227 Barroso Commission  4, 56, 91, 128, 137, 196, 206 BCI  244–45 Belgium  6, 21, 135, 151–58, 162, 184, 286, 307 assessment  157–58 G1000 experiment  152–54 Ostbelgien model  21, 150–51, 154–57, 168, 307 best practices  168, 228, 248, 307 Better Law-Making Agreement  55–56, 113, 121 Better Regulation Agenda  22, 195–200, 203, 209, 211–12 binding ECI  234, 245–47, 249 Brexit  5, 8, 13, 20, 80, 82, 88, 91 negotiations  120–22 Brussels bubble  226, 260 building blocks  33, 37, 286–87 Bulgaria  135, 162 business groups  56, 210, 308–9 businesses  56, 207, 210, 212, 279, 284 Capitani  106–8, 112, 115, 117–20, 123 CARE (Citizens’ Assembly to Renew Engagement on the Future of Europe)  170–72, 174–85, 187 impact  180–82 Member State or EU events, or both  176–78 recruitment and participant stratification  175–76 scope and recommendations  178–80

336  Index CAVs (Connected and Automated Vehicles)  285–86 Charter of Fundamental Rights  12–13, 33, 45, 73, 83, 90, 108 citizen assemblies  6, 20, 60, 150, 304 citizen consultations  10, 16–17, 21, 26, 137–38, 140, 143, 145–46 citizen control  280 citizen deliberation  150, 154 citizen engagement, see engagement citizen interests  44, 256, 268 citizen involvement  16, 18, 26–27, 127, 130, 194, 198, 204 direct  65, 127, 144, 213, 309 citizen-oriented developments/initiatives  7, 21, 127, 130 citizen participation, see also Introductory Note direct  213, 309 effective  106–7, 173, 188, 255, 268 and Ombudsman  97–101 and transparency  106–8, 120 unstable frames  51–68 citizen petitions, see petitions citizen preferences  172, 174–75, 178–79, 188, 269 citizen recommendations  179, 187 citizen scrutiny, effective  106, 122 citizenry  19, 29, 88, 213, 232 citizens, see also Introductory Note citizen assemblies/citizens’ assemblies  10, 155, 169–70, 174–89, 308 constitutional elevation  16, 28 European  28, 33, 44, 46, 49, 51, 247, 249 in European democratic formula  31–33 individual  16, 22–23, 51, 55, 57–58, 60, 206, 210 institutionalisation  3–29, 130, 292, 305 ordinary  11, 22, 87, 285, 300 as public law actors  3–11 role in ongoing legislative processes  105–23 CARE, see CARE definition  171–72 citizen control/citizens’ control  89–103 and Ombudsman  101–3 Citizens’ Council  21, 155 citizens’ dialogues  129, 142, 169 citizens’ panels  170–71, 174, 181–88, 308 as bottom-up exercise  184–85 impact  185–87 participants  182–84

citizenship  9–12, 28, 31–35, 38–39, 41, 43–44, 93–94, 279–81 active  35–38, 43, 49, 261, 304, 307 common  32, 48 and democracy  3, 10–11, 28, 305 dual Member State/EU  177 European  11, 32, 35–39, 41–46, 89, 93, 301, 305–7 national  32, 42 political  11–16, 29 rights  15, 93, 301 single  33, 48 civic engagement  277, 281, 300 civil dialogue  52, 57–58, 63, 65, 86, 256, 269 civil society  51–53, 55–56, 59–60, 62, 64–68, 253–56, 264–67, 269–70 changing structures of opportunity for  54–59 dialogue from accreditation to openness  55–57 European  52–53, 63–64 field of participation  60–62 interests  258 organisations, see CSOs organised  54, 58, 68, 251, 256–58, 264–65, 269, 294 participation  4, 43, 52, 63, 67–68, 252, 254, 264 opportunities as form of governmentality  62–64 and public sphere  64–66 voice of  251–52, 255, 258, 269 Civil Society Europe  60–61, 67 Civil Society Organisations’ Group  251, 259 CJEU (Court of Justice of the European Union)  36–37, 92–94, 106–8, 110–12, 116, 118–20, 122, 238–39 ClientEarth  100, 106–8, 110–12, 115–16, 118, 120 climate change  6, 20, 27, 159, 161–62, 164, 171, 290–91 co-creation  286–87, 291, 308, 310 and material deliberation  30, 280–86 co-legislators  111, 113–14, 118–19, 122, 166, 212, 249, 266 coexistence  32–33, 46–47, 252, 270, 308 peaceful/pacific  34, 42–43 CoFoE (Conference on the Future of Europe)  127–28, 146–47, 149–68, 170–71, 182–89, 295–96, 299–300, 306–10 agenda  163, 184 citizens’ panels  170–71, 174, 181–88, 308

Index  337 initiation and goals  158–59 institutional set-up  160–62 Joint Declaration  170, 185, 187 legitimacy  162–67 Multilingual Digital Platform  296, 301–4 recommendations  166–67, 310 coherence  142, 146, 197, 200, 309 cohesion, social  40–41, 43–45, 49, 207, 290 collaborative physical environments  275–76 colonisation of civil society by managerial institutional logics  67 Commission  54–59, 109–13, 158–68, 194–207, 209–12, 222–43, 245–49, 261–66; see also Introductory Note Barroso  4, 56, 91, 128, 137, 196, 206 Juncker  6, 19, 128, 137, 197, 209, 212 powers  217, 222, 228, 238 von der Leyen  127, 142, 199 Committee of the Regions (CoR)  49, 92, 223, 227, 229–31, 257, 260, 262 common citizenship  32, 48 common values  34, 47 commonality  34, 43, 46, 48 communities  31–33, 35–37, 43, 154–55, 158, 274, 276, 285 expert  11, 108 local  130, 286–87 maker  283–84 comparative law  234, 244–45 competition  28, 59, 61, 64, 67–68, 207 dynamics  67–68 complaints  13, 29, 72, 77, 94–96, 102–3, 179, 224 compliance  14, 101, 103, 307 Comprehensive Economic and Trade Agreement (CETA)  223 compromise  61–62, 110, 116, 168, 185 compromise texts  114–15, 117–18 Conference on the Future of Europe, see CoFoE Conference Plenaries  161, 301–2 Conference recommendations  164, 166, 168 Connected and Automated Vehicles, see CAVs consensus  26, 59, 61, 67, 75, 113, 178, 256 consistency  142, 177–78 constituencies  51–52, 63–66, 199, 207, 292 Constitutional Affairs Committee (AFCO)  167, 185, 310 constitutional elevation of citizens  16, 28 consultation strategy  194, 196, 201–3

consultations  22–23, 54–57, 60, 134–35, 137–38, 141, 194–212, 255–56 citizen  10, 16–17, 21, 26, 137–38, 140, 143, 145–46 open  54, 56–57, 68, 72 open online  52, 55, 60, 67 pre-legislative  193–98, 200–2, 206–9, 211, 308 processes  23, 56, 66, 141, 147, 201, 205, 210 public  10, 22, 111, 169, 208–9, 254, 256, 268–69 wider  141, 143, 307 contestation  20, 61, 63–64, 66–68, 131, 268, 307 political  226, 247 control  15, 19, 90, 92–93, 97, 102–3, 187, 261 citizens’  89–103, 280 convention processes  130, 134, 138, 214 conventions, democratic, see democratic conventions cooperation  37, 58, 68, 100, 156 sincere  96, 99, 101, 103, 307 CoR, see Committee of the Regions costs  60, 155, 203, 210, 219 Council  95, 97–101, 113, 115–20, 155, 158–61, 164–68, 257–58 Court of Justice of the European Union, see CJEU COVID-19 pandemic  5–8, 30, 86, 209–10, 236–38, 281–83, 290–92, 308 makers’ response to material scarcity  282–86 pandemic moment  299–301 virtual and material challenges  290–91 as window of opportunity  293–304 credibility  88, 136, 144, 259, 310 crises  91, 145, 152, 237–38, 278, 291, 293, 297–98 sovereign debt  91, 193 CSOs (civil society organisations)  51–52, 54, 56–61, 67, 141, 255–60, 266–70, 306–9 European  52, 55, 58, 267 insider  60, 68 national  58–59, 64 outsider  60 cultural diversity  43, 134 cultural identities  42, 45–47 culture  33–34, 41, 46, 81, 161, 171, 225, 282 open-source  275–77 of transparency  29 Czech Republic  73, 135, 162, 217, 283

338  Index data controllers  219, 228 decision-making  17–18, 149–50, 186–87, 210–12, 251–52, 257–58, 268–70, 305–7 authority  150 processes  92–93, 98–99, 107, 109–10, 112, 115, 117–20, 194 deficit model  277–79, 290 deliberation  20, 112, 150, 153, 156–60, 164, 176–78, 304–7 citizen  150, 154 day  152–53 inclusive  157, 177 material, see material deliberation reinvention  290–91 weekends  152–53 deliberative democracy  146, 151, 167, 169, 173, 292, 306, 309 deliberative exercises  20, 151, 157, 165 deliberative experiments  150–51, 154, 159, 164 deliberative mini publics, see DMPs deliberative process  7, 150, 160, 176 democracy  8–11, 16–18, 26–31, 34–35, 37–40, 253–54, 305–6, 308–10 beyond representation  125–270 and citizenship  3, 10–11, 28, 305 without a State  31–49 deliberative  127, 146, 167, 173, 292, 298, 306, 309 direct  4, 218, 244–45, 304 disconnects  15–28 European  30, 161, 164, 220, 296, 302, 304, 310 national  17, 297, 299, 302, 304 new push for  290, 295 participatory  9–12, 15–16, 33–34, 37–38, 169–89, 251–61, 264–65, 267–70 representative  3–4, 18, 33, 105–6, 152, 252–54, 298, 305–6 supranational  88, 254, 301 tension between supranational and national  297–98 democracy-oriented initiatives  5 democratic actors  128, 305, 310 democratic conventions  6, 10, 19, 26, 29, 127–47, 307 assessment  139–45 benefits  139–40 institutional set-up and context  132–35 outcomes  135–39 pitfalls  129, 139–43

relationship with other forms and instruments of EU democracy  143–45 democratic deficit  19, 37, 146, 257, 279, 302 democratic governance  10–11, 16, 52, 54, 101, 103, 307, 309 system  43, 45 democratic inclusion  7, 29, 204 democratic innovations  25, 30, 181, 213–15, 218, 220, 291, 295 digital  296, 301 democratic instruments  72, 144, 169, 171–74, 188, 266, 268, 270 democratic involvement  132, 140–41, 144–45, 299 democratic legitimacy  127, 143, 149–50, 211–12, 240, 252–54, 266–68, 306–7 democratic legitimisation  268 democratic life  15, 34, 38–39, 89–103, 105, 129, 220, 222 democratic participation  29–30, 40, 45, 90, 92, 140, 144, 305–6 direct  211 equal  149 democratic processes  7, 35–36, 53, 112, 140, 163, 224, 295 democratic reform  21, 129, 143 democratic renewal  145, 199 envisaging  130–32 democratic systems  72, 108, 174, 188, 270 democratic theory  172, 196, 253–54 democratic unresponsiveness  27 democratic values  5, 39, 256, 268 democratisation  14, 18, 130, 145, 184, 219, 300 demoi  32, 45–46, 48–49, 307 in Treaties  33–35 demos  10, 16, 28, 31–32, 41–43, 45, 72, 88 European demos in the making  40–45 Denmark  129, 142, 162 design  171, 176, 220–21, 263, 266, 275, 280, 283 challenges  177, 182 institutional  11, 29, 309 legislative  215, 217, 255 dialogues  19, 58–59, 128–31, 135–37, 142, 150, 255–56, 287–88 citizens’  129, 142, 169 civil  52, 57–58, 63, 65, 86, 256, 269 exclusive  55, 57, 60 vertical  255, 265 digital platform, see MDP

Index  339 direct citizen involvement  65, 127, 144, 213, 309 direct democracy  4, 218, 244–45, 304 direct elections  37, 90 disclosure  100, 109–11, 114, 116–18 early  111, 114, 119 discretionary powers  77, 85, 234, 242 diversity  34, 43, 47, 51, 134, 172, 175–76, 182 cultural  43, 134 linguistic  23, 33–34 representative  170, 183 DIY (do-it-yourself)  274, 280 aerial mapping  280–81, 287–89 Geiger counters  282, 287–88 radiation monitoring  282 DMPs (deliberative mini publics)  20, 150–51, 154–55, 157–58, 164, 167–68 documents  10, 12, 82, 95, 98–100, 105–23, 201, 204 access to  10, 12, 95, 106–12, 114, 118, 120, 122–23 categories  110, 115–16 draft  120, 122, 205 four-column  100, 114–17 internal  99, 110 key  114, 118, 121 legislative  14, 109, 111–12, 118–19, 122, 307 provisional  112, 116, 119, 121 trilogue  99, 114–15, 117, 119 draft documents  120, 122, 205 dual legitimacy  35, 265 duties  38, 43, 93, 96, 98, 186, 222, 239 general  40, 43 dynamics of competition  67–68 e-participation  204, 294, 296, 303 early disclosure  111, 114, 119 ECI (European Citizens’ Initiative)  58–62, 65–68, 143–44, 213–32, 234, 236–42, 244–58, 261–70 between executive dominance and judicial restraint  233–50 binding  234, 245–47, 249 EESC contributions and proposals  260–64 effects of implementing  57–59 evolution of legislative framework  235–38 facilitator and institutional mentor  262, 264–66, 269 judicial restraint in interpretation of legal framework  238–41 legislative design  217–19

lowering expectations  247–48 more meaningful role for EESC  260–68 non-binding nature  239–41 organisers  222, 230, 238, 242, 248, 261, 268 outcomes  221 and participatory democracy  269, 308 in practice  221–27 process  144, 252, 260–61, 264, 268, 270, 308 promoters  58, 65 registration conditions  238–39 Regulation  24, 58–59, 215, 222–24, 227, 231–32, 262–63, 268–69 revision  227–31 successful outcomes  241–42 Treaty-enshrined design  215–16 unrealistic expectations  219–21 ways forward  243–48 ECJ (European Court of Justice), see CJEU education  40, 44, 136–37, 155–56, 274, 276–77, 282, 284 higher  164, 175, 183 inclusive  156 levels  161, 175 EESC (European Economic and Social Committee)  10, 25, 30, 223, 227, 230, 251–70, 308 Art 11 TEU and participatory democracy  253–57 contributions and proposals for ECI  260–64 as ECI facilitator and institutional mentor  264–68 more meaningful role in ECI process  260–68 Opinions  258, 261, 264 role  252, 257, 266, 270 role in EU institutional setting  257–60 effective citizen scrutiny  106, 122 effective participation  15, 106–7, 180, 182, 187–88, 255, 268 definition  172–74 effectiveness  26, 28–29, 106–7, 109, 113, 120, 170–71, 200 efficacy  53, 73, 75, 82, 88 Efler  222–23 elected representatives  71, 106, 114–15, 157, 297, 303 elections  7, 10–11, 15, 39–40, 129–30, 175, 305, 309 direct  37, 90 EP  3, 5, 132, 134, 138, 214, 294–95, 300 participation beyond  11–15

340  Index electoral reform  6, 21 elites  5, 12, 19, 49, 280 emergency  86, 289, 292, 306 employees  95, 259 employers  195, 258–59 employment  81, 159, 194, 196–97, 203, 208 empowerment  10, 35, 58, 66, 71, 87, 307, 309 End the Cage Age initiative  23, 226–27, 230, 242 engagement  51–52, 137–38, 140, 255, 273–92, 303, 305, 307 civic  277, 281, 300 creative forms  279, 287 democratic  19, 139 effective  178 exercises  278–80 long-term  287, 289 and participation  274, 277, 286 political  6, 300 potential of making  286–91 practices  273–74, 281, 291 public  145, 273, 278, 288 environment  24, 38, 78, 81, 159, 161, 164, 171 institutional  96, 103 protection  65, 207 EP, see European Parliament equal interest representation  210, 212, 308 equality  33–34, 39, 41, 160, 169 Estonia  135, 162 European citizens  28, 33, 44, 46, 49, 51, 247, 249 European Citizens’ Consultations  150, 169, 294–95 European Citizens’ Initiative, see ECI European Citizens’ Initiative Forum  237, 248 European Citizens’ Panels  150, 161, 166, 301 European citizenship  11, 32, 35–39, 41–46, 89, 93, 301, 305–7 European civil society  52–53, 63 and public sphere  64–66 European Commission, see Commission European Council  3, 34, 39, 97–98, 128, 133, 137–38, 159 meetings  128, 133–34, 136–37 European Court of Justice, see CJEU European CSOs  52, 55, 58, 267 European democracy  30, 161, 164, 220, 296, 302, 304, 310 European Economic and Social Committee, see EESC European identity  16–17, 41–42, 47

European Ombudsman, see Ombudsman European Parliament (EP)  12–15, 37–40, 71–88, 97–101, 115–20, 215–20, 260–63, 265–68 AFCO (Constitutional Affairs Committee)  185, 188, 310 elections  3, 5, 132, 134, 138, 214, 294–95, 300 PETI (Petitions Committee)  13–14, 74–77, 79–88, 226, 307 petitions  12–13, 254, 294 resolutions  24, 114, 117, 220 European public sphere  25, 35, 38, 48, 59, 64–65, 67, 309–10 European stakeholder consultations, setting standards for  200–2 European Transparency Initiative  55–56 executive dominance  19, 233, 241, 297 expectation gap  233, 243–49 expectations  51, 54, 88, 91, 181, 248–49, 285, 291–92 high  188, 248 unrealistic  200, 215, 219–20, 231 experimentation  52, 132, 169, 273, 276, 280 expert communities  11, 108 expert groups  194, 202, 209 expertise  67, 87, 166, 208, 276, 291 external  16, 23 experts  150, 152, 154, 156, 164, 228, 277–78, 280 extended peer community  281, 288 external expertise  16, 23 external pressure  110, 112, 116, 118 facilitation  164, 177, 264 facilitator and institutional mentor  262, 264–66, 269 facilitators  113, 141, 164, 177, 261, 264–65 FATCA (Foreign Account Tax Compliance Act)  85 FCI (Finnish Citizens’ Initiative)  218, 234, 244–45, 248–49 feasibility  131, 172–73, 175, 189, 286 feedback  22, 57, 79, 166–67, 194, 198, 200–1, 205–6 mechanisms  146, 187, 299 field approaches  53, 66–68 Finland  17, 110, 162 Finnish Citizens’ Initiative, see FCI formal instruments  12, 16, 294, 309 four-column documents  100, 114–17

Index  341 framework institutional  35, 87, 94, 97, 168, 266 legal  29, 94, 108, 197, 232, 238–39, 248–49 legislative  29, 233–35, 238, 241, 243 framing  28, 40, 177–78, 180, 186, 274, 280, 288 problem  278, 286–88, 290–91 France  6–7, 134–35, 137, 151, 162, 164, 213–14, 294 Nantes Métropole Citizens’ Convention on COVID-19  7 referendums  213–14 free movement  12, 78, 81, 93, 293, 300 freedom  34, 38–39, 133, 138, 293, 296, 301, 303 G1000 Experiment  152–54 GC (General Court)  83, 99–100, 106–8, 110–12, 115–20, 223, 239 Geiger counters, DIY  282, 287–88 gender  44, 134, 155, 161, 164, 166, 175, 182–83 General Court, see GC general presumptions  109–11, 115–16, 119 general public interest  106 geographical origin  44, 155, 161, 166 Germany  80, 129, 135–37, 142, 162, 164, 175, 179 glyphosate  23–24, 59, 225, 227 goals  28, 34, 42–43, 46–48, 52–54, 154, 157–58, 166 normative  54, 66 overarching  12, 35 good administration  12, 14, 29, 92–93, 96–97, 102–3, 307 governance  4–5, 7–8, 18, 25–28, 38, 62–63, 142–44, 296–97 democratic  10–11, 16, 52, 54, 101, 103, 307, 309 good  101, 108 multilevel  39, 42, 47–49, 297 participatory  146, 240, 290 processes  11, 17, 281 system  33, 43, 45, 250, 259 governmentality  53–54, 62–64, 67–68 approaches  53, 62–64, 66–68 networks  62 governments, national  81, 86, 136, 141, 143, 162, 295, 300 Greece  135, 141, 193, 286

health  81, 161, 171, 203, 209, 225, 297–98 animal  24 crisis  295–97 public  159, 207–8, 277 healthcare  155–56 hearings  26, 76, 156, 194, 202, 260, 262, 266 public  223, 226, 230, 236 higher education  164, 175, 183 history  43, 48, 195, 280, 295, 298 hospitals  84, 282–83 housing  26, 156 social  156 Hungary  91, 135, 137, 145, 164, 179 identity  42–43, 45, 61, 98, 102, 285, 303 cultural  42, 45–47 European  16–17, 41–42, 47 national  33–34, 41–42, 46–47, 307 impact assessments  22, 56–57, 109, 111–12, 122, 198 legislative  224, 233–34, 243, 299 inclusion  153, 156, 160, 166, 168–70, 197, 263, 268 of citizens  12, 45, 149–51, 153, 166 democratic  7, 29, 204 political  140, 194 inclusive deliberation  157, 177 inclusive education  156 inclusiveness  22, 64, 162, 212, 277, 279, 309 inclusivity  174, 188, 308 independence  43, 48, 77, 111, 219, 307 influence  66–67, 143–44, 146, 177–78, 187–88, 252, 266–67, 269–70 political  64, 268 initiatives agenda  213–15, 218, 220, 231, 248 ongoing  202, 226 policy  7, 57, 202, 294 registered  221, 228, 237, 262 successful  23, 238–39, 241, 244–46, 248, 262 transparency  55–56 innovations democratic  25, 30, 181, 213–15, 218, 220, 291, 295 technoscientific  287, 289 input legitimacy  16–17, 22–23, 56, 129–30, 146, 162, 167, 199 inquiries  14, 73, 95, 130, 143 strategic  14, 29, 94–95, 98, 100–1, 103, 114–15

342  Index insider CSOs  60, 68 insider organisations  61, 63 insiders  54, 60–61, 65–66, 68, 121, 307 and outsiders  61, 66–67 institutional actors  10, 181, 232 institutional architecture  138, 296, 302 institutional balance  96, 212, 266, 308 institutional channels  296, 299 institutional design  11, 29, 309 institutional environment  96, 103 institutional framework  35, 87, 94, 97, 168, 266 institutional mentor role  261, 263, 266–67, 270 institutional mentors  261–67, 269 institutional position  1, 10, 28, 94 institutional reform  59, 153, 302–4 institutional set-up, CoFoE  160–62 institutional space  108, 119–20 institutional structure  162, 268 institutionalisation  12, 27, 52, 65, 67, 173–74, 186, 188 of citizens  3–30, 130, 292, 305 of civil society participation  52 of meaningful citizen engagement  279 ongoing  11, 306 of proactive transparency  107 institutions, see also Introductory Note and individual institutions national  5, 137, 168 political  39, 139, 172, 181, 226, 255 targeted  94–95, 98 instruments  10, 18, 75–76, 203–5, 231–32, 240–41, 264–65, 306–9 agenda-setting  226, 256 consultation  195, 209 democratic  72, 144, 169, 171–74, 188, 266, 268, 270 existing  28, 196, 226 formal  12, 16, 294, 309 participatory  18, 87, 180–81, 188, 202, 257, 307, 309 weak  88, 231, 308 integration  18, 29, 33, 41, 125, 131–32, 302–3, 309 inter-institutional engagement  252, 264, 266, 269 inter-institutional negotiations  109, 114, 117 interest representation, equal  210, 212, 308 interest representatives  106, 111, 118 corporate  212 internal documents  99, 110

involvement  53, 66–68, 160, 162, 164, 208–10, 212, 257–58 citizen  16, 18, 26–27, 127, 130, 194, 198, 204 CSOs  60, 64 democratic  132, 140–41, 144–45, 299 Ireland  6, 142, 162, 213–14 lives lost at sea  84–85 Italy  73, 79–80, 179–80, 214, 216, 283, 286, 290 JRC (Joint Research Centre)  273, 283, 286, 288–89 makerspace  273, 281, 283–85, 290, 292 Juncker Commission  6, 19, 128, 137, 197, 209, 212 key documents  114, 118, 121 lack of transparency  99, 117, 173 landmark judgments  106, 108, 110, 115, 118 languages  33, 41, 122, 216, 219, 224–26 official  33, 72, 158, 228, 301 law-making  10, 15, 24–25, 143, 173, 176, 180–81, 269 processes  35, 254, 258, 266 Leaders’ Agenda  128 legal acts  92, 96, 215–17, 222, 226, 235 legal framework  29, 94, 108, 197, 232, 238–39, 248–49 on transparency and access to documents  108–10 legislation  18, 144–45, 165–67, 204–5, 210, 224–26, 270, 306 and participation  21–25 legislative action  24, 29, 105, 211, 213, 215, 223–26, 231–32 legislative acts  107, 110, 113, 116, 119, 121, 194, 197 legislative cycle  113, 204 legislative design  215, 217, 255 legislative documents  14, 109, 111–12, 118–19, 122, 307 legislative framework  29, 233–35, 238, 241, 243 legislative impact  224, 233–34, 243, 299 legislative initiative  30, 111, 123, 201, 215–16, 224, 245–47, 250 legislative procedure  29, 98, 109, 113, 116, 119, 189, 246–47 ordinary  37, 92 legislative processes  98, 106–7, 111, 113, 116–23, 185–86, 256–57, 266–70 ongoing  105–23

Index  343 legislative proposals  198, 201–3, 220–21, 225, 227, 230, 232, 246 legislature  214, 216, 237, 243, 245–47, 249, 258, 261 legitimacy  35, 52–54, 56–57, 60–61, 64, 67–68, 175–77, 254 CoFoE  162–67 democratic  127, 143, 149–50, 211–12, 240, 252–54, 266–68, 306–7 dual  35, 265 input  16–17, 22–23, 56, 129–30, 146, 162, 167, 199 output  17, 23, 51, 56, 162, 164, 195, 199 legitimate representatives  60, 67 legitimisation  27, 34, 39, 176, 183, 194, 197, 199 democratic  268 dual  267 Lego  286–87 level playing field  57, 114, 122 linguistic diversity  23, 33–34 Lisbon Treaty  4, 7, 32–33, 37, 40–41, 51, 57–58, 214–17 contribution to defining European political formula  38–40 Lithuania  17, 129, 135, 142, 162 litigation  83, 91 local actors  22, 138, 142 long-term engagement  287, 289–90 Luxembourg  17, 27, 135, 164 Maastricht Treaty  36, 89–90, 92, 215, 301 Macron, Emmanuel  6, 19, 26, 29, 185, 295, 307 democratic conventions  127–47 Madrid City Council  21 maker communities  283–84 maker culture(s)  273–75, 277, 279, 282, 286–87, 289, 291, 308 makers  273–92, 308 collaborative physical environments  275–76 deficit model  277–79, 290 engaging within spaces where people go  288–89 and institutionalisation of meaningful citizen engagement  279–80 long-term engagement  287, 289–90 material deliberation and co-creation  30, 280–86 open-source culture  275–77 personal digital fabrication tools  275

potential of making citizen engagement  286–91 technologies of participation  277–83 makerspaces  273, 275–76, 280, 282–83, 285, 287–89, 291–92, 308 maladministration  12, 14, 83–84, 92–97, 101–2, 239 Malta  135, 162, 164 material deliberation  30, 273–92, 308 and co-creation  30, 280–86 matters of care  283, 288–90 MDP (Multilingual Digital Platform)  30, 159, 161, 163, 166–67, 184, 302–4 Members of the European Parliament, see MEPs mentors, institutional  261–67, 269 MEPs (Members of the European Parliament)  25, 84–85, 132, 135, 181, 260, 265 migration  20, 78, 136–37, 166, 171, 285 mini-publics  170–73, 175–77, 183 Minority SafePack  23, 222, 224, 226–28, 230 mobility  285–87 multilevel citizen consultations  146 multilevel governance  39, 42, 47–49, 297 Multilingual Digital Platform, see MDP Nantes Métropole Citizens’ Convention on COVID-19  7 national authorities  48, 75, 82, 207, 210, 219 national citizens’ panels  140, 161 national citizenship  32, 42 national CSOs  58–59, 64 national democracies  17, 297, 299, 302, 304 national governments  81, 86, 136, 141, 143, 162, 295, 300 national identities  33, 42, 47, 307 national identity  34, 41–42, 46–47 national institutions  5, 137, 168 national law  37, 41, 91, 228 national level  7, 43, 47, 130, 139, 151, 158, 163 national parliamentarians  133–34 national parliaments  4, 14, 33–34, 98, 100, 143–45, 244, 248 national sovereignty  47, 131 nationalism  32, 47, 49 nationality  34, 43, 47, 80, 166, 177, 182, 198 negotiations  100, 113–14, 118, 120, 122, 223, 259 Brexit  120–22 inter-institutional  109, 114, 117

344  Index trilogue  29, 95, 114, 118–22 tripartite  106, 113 negotiators  113–14, 118 neo-pluralist approach  51, 56, 211 Netherlands  23, 142, 151, 154, 162, 193, 286, 294 networks  196, 198, 217, 265, 273, 282, 287, 289 NGOs (non-governmental organisations)  62–63, 106, 194, 196, 208, 228, 279 non-disclosure  107, 111–12, 117, 119–20, 122 general presumption of  112, 117 provisional  118 non-discrimination  32–33, 39, 44, 48 non-governmental organisations, see NGOs OCs (online consultations)  22–23, 54, 56–57, 63, 68, 198–99, 202–6, 209–11 closed  204 open  52, 55, 60, 67, 204 semi-standardised  205 standardised  206 official languages  33, 72, 158, 228, 301 Ombudsman  10, 12–14, 29, 89–103, 114–15, 118, 120–22, 239 and citizen participation  97–101 and citizens’ control  101–3 decisions  100–1 and good administration  93–97 powers  93, 103 recommendations  99, 101, 103, 115, 307 role  93, 96 One of Us Initiative  65, 224 ongoing legislative processes, role for citizens  105–23 ongoing trilogues  112–17 online consultations, see OCs opaqueness  14, 95, 106, 140 open online consultations  52, 55, 60, 67 open-source culture  275–77 openness  22–23, 48, 51, 55, 113, 116, 169, 173; see also transparency opinions, own-initiative  257–59, 261–62, 265 organised civil society  54, 58, 68, 251, 256–58, 264–65, 269, 294 organised interests  11, 108, 195, 199, 203 organisers  152–53, 218–19, 222–31, 234–39, 241–42, 244, 261, 263–64 ECI  222, 230, 238, 242, 248, 261, 268 Ostbelgien model  21, 150–51, 154–57, 168, 307

output legitimacy  17, 23, 51, 56, 162, 164, 195, 199 outsider CSOs  60 outsider groups  62–63 outsider organisations  61, 63, 68, 307 outsiders  54, 59, 61, 66–68 and insiders  61, 66–67 over-representation  175–76, 183 own-initiative opinions  257–59, 261–62, 265 pandemic, see COVID-19 pandemic panels  44, 134, 157, 160–68, 170–71, 174, 183–88, 306 parliaments national  4, 14, 33–34, 98, 100, 143–45, 244, 248 regional  138, 154–55, 160, 245 partial registration  223, 228, 236, 263 participant recommendations  179–80, 186 participants  19–21, 133–34, 137, 140–41, 162, 164, 175–83, 285–87 selection  153, 157, 160, 166–67, 171 participation active  48, 163, 230, 276 beyond elections  11–15 beyond representation  15–28 changes in opportunities  59–66 citizen, see citizen participation civil society  4, 43, 52, 62–63, 67–68, 252, 254, 264 democratic  29–30, 40, 45, 90, 92, 140, 144, 305–6 direct  44, 68 e-participation  204, 294, 296, 303 electoral  17, 294 and engagement  274, 277, 286 and EU legislation  21–25 and integration  18–21 political  11, 37, 297, 300 public  8, 17, 26, 144, 274, 277, 291–92 and representation  298–99 technologies of  277–83 participatory democracy  9–12, 15–16, 33–34, 37–38, 169–89, 251–61, 264–65, 267–70 and Art 11 TEU  253–57 strong  171–74 participatory events  176, 182 participatory exercises  29, 149, 287 participatory governance  146, 240, 290 participatory instruments  18, 87, 180–81, 188, 202, 257, 307, 309

Index  345 participatory mechanisms  12, 27, 53–54, 63–65, 67 participatory opportunities  53, 57, 60, 68, 173–75 participatory processes  173–74, 181, 209, 255 participatory tools  48–49, 52, 54, 58, 60, 67–68, 202 peaceful coexistence  34, 42–43 permanent involvement of citizens  28, 147 personal digital fabrication tools  275 PETI (Petitions Committee)  13–14, 74–77, 79–88, 226, 307 petitioners  13–14, 73–75, 77, 80, 82–84, 86–88 petitions  12–13, 71–77, 79–88, 207, 215, 294, 300, 307 actual use  78–86 citizen  10, 13 exploding myths  86–88 institutional context  74–78 outcome  79, 85 practical operation and bottlenecks  75–78 qualitative survey  82–86 quantitative survey  78–82 technical-procedural foundations  74–75 Petitions Committee, see PETI plenaries  161, 163–64, 166–67 plenary debates  13, 26, 230, 232, 236 Poland  80, 91, 135, 141, 286 policy-makers  59, 61, 118, 196, 278–79, 286 policy-making  22, 59–60, 66–68, 254–56, 268–69, 273–74, 277, 284–85 processes  30, 51, 57, 65, 68, 72, 188, 204 policy preferences  22, 59, 173 policy proposals  66, 130, 149, 197, 210 policy recommendations  107–8, 143, 150 politeia  28, 31–49, 307 pros and cons without demos  45–48 political actors  118, 309 political agendas  38, 40, 149, 255 political choices  33, 49, 105, 239 political citizenship  11–16, 29 political contestation  226, 247 political engagement  6, 300 political inclusion  140, 194 political influence  64, 268 political institutions  39, 139, 172, 181, 226, 255 political participation  11, 37, 297, 300

political support  158, 187, 230 political system  31, 171, 174, 176–77, 184, 188, 298, 302–3 Portugal  135, 184, 218, 283, 286, 291 powers  97, 213, 215–16, 220, 222–23, 254, 256–57, 303 Commission  217, 222, 228, 238 discretionary  77, 85, 234, 242 Ombudsman  93, 103 pre-legislative consultations  308 democratic role and Better Regulation Agenda  197–200 online consultations regime  202–6 paradigm shift in policy-making  195–97 participation of represented interests  206–8 role and functioning  193–212 setting standards for European stakeholder consultations  200–2 preferences  243, 245, 278, 308 citizen  172–75, 178–80, 188, 269 policy  22, 59, 173 presumptions, general  109–11, 115–16, 119 proactive transparency  107–9, 118, 120–23, 307 problem framings  278, 286–88, 290–91 proposal-making, transparency in  110–12 proposals legislative  198, 201–3, 220–21, 225, 227, 230, 232, 246 policy  66, 130, 149, 197, 210 prototyping  274–75, 277, 279–80, 286–87, 308 provisional documents  112, 116, 119, 121 public consultations  10, 22, 111, 169, 208–9, 254, 256, 268–69 public engagement  145, 273, 278, 288 public health  159, 207–8, 277 public hearings  223, 226, 230, 236 public interest  19, 99–100, 109–10, 199, 204 public law actors, citizens as  3–11 public opinion  5, 20, 141, 154, 213, 297, 304 public participation  8, 17, 26, 144, 274, 277, 291–92 public sphere  10, 21, 37, 39, 43, 53, 63–65, 67 European  25, 35, 38, 48, 59, 64–65, 67, 309–10 radiation monitoring  282 reactive transparency  108, 118, 123 reasoned opinions  4, 234

346  Index recommendations  98–100, 154–57, 161–62, 164–68, 171–72, 175–78, 180–84, 186–88 citizen  179, 187 Conference  164, 166, 168 Ombudsman  99, 101, 103, 115, 307 participant  179–80, 186 policy  107–8, 143, 150 referendums  7, 9, 20, 143–44, 179–80, 213–14, 231, 245 EU-related  132, 144 EU-wide  180, 304 France  213–14 second Irish  214, 217 reform  6, 10, 28–29, 196, 198, 200, 227, 302–3 democratic  21, 129, 143 electoral  6, 21 institutional  59, 153, 302–4 Treaty  138, 165, 267 refusals, registration  221–23, 225, 227–28 regional parliaments  138, 154–55, 160, 245 registered initiatives  221, 228, 237, 262 registration  218, 222, 228, 231, 235–36, 239, 261, 263 conditions  238–39 partial  223, 228, 236, 263 refusals  221–23, 225, 227–28 test  217, 222, 224, 229 voters  303 representation  44, 90, 176, 183, 191, 297, 299, 303 equal interest  210, 212, 308 and participation  298–99 participation beyond  15–28 representative associations  40, 51, 101, 106, 197, 253 representative democracy  3–4, 18, 33, 105–6, 152, 252–54, 298, 305–6 representative diversity  170, 183 representativeness  19, 55, 183–84, 188, 205–6, 254, 264–65, 308–9 representatives  45, 90, 105–6, 155, 161, 200, 223, 255 elected  71, 106, 114–15, 157, 297, 303 interest  106, 111, 118 legitimate  60, 67 resources  13, 44, 60, 75, 87, 201, 210, 265 responsiveness  56, 168, 173, 197, 308 Right2Water initiative  24, 223–25 rights citizenship  15, 93, 301 to petition, see petitions sovereign  36–37, 89

Romania  73, 80, 133, 145, 179 rule of law  6, 8, 14, 34, 39, 45, 161–62, 164 Safecast  282, 288 Schengen border controls  86 science  273, 277–79, 282, 286, 288, 290–91 security  34, 38, 115, 138, 161, 164, 171 signature collection  58, 218, 229, 231, 261, 301 signature thresholds  218, 221, 225–26, 231 sincere cooperation  96, 99, 101, 103, 307 social affairs  81, 194, 196, 203, 208 social cohesion  40–41, 43–45, 49, 207, 290 social housing  156 social partners  65, 138, 161, 197, 201, 269 socioeconomic background  44, 161, 166, 182–83 solidarity  23, 34, 39, 44, 48, 193, 283 SOLVIT network  77 sovereign rights  36–37, 89 sovereign states  35, 37, 216 sovereignty  131 fiscal  303 national  47, 131 space to think  106–7, 109, 114, 117, 123 Spain  73, 80, 135, 184, 291 Madrid City Council  21 stolen babies  83–84 Stop TTIP  61, 223–24 Stop Vivisection  23, 224, 227, 239 strategic inquiries  14, 29, 94–95, 98, 100–1, 103, 114–15 stratification  175–76, 183 subsidiarity  98, 140, 197, 204–5 support  155–56, 218–19, 229, 235–38, 242, 244–45, 263, 265–66 collection  236–38 political  158, 187, 230 supranational democracy  88, 254, 301 sustainability  40, 136, 241, 276 Sweden  108, 110, 162 Switzerland  58, 154, 218 BCI  244–45 taxation  20, 44, 136, 162, 204, 206 technical-procedural foundations  74 technologies of participation  277–83 TFEU (Treaty on the Functioning of the European Union)  33, 44, 91–92, 94, 101–2, 108–9, 214–16, 258–59 third-country nationals  92–94

Index  347 thresholds  117, 119, 216, 218, 221, 225–27, 229, 232 signature  218, 221, 225–26, 231 unquantified  216 trade unions  59, 139, 195, 251, 259 Transatlantic Trade and Investment Partnership, see TTIP translation  59, 156, 219, 261 transparency  14–15, 98–101, 105–8, 113–14, 116–23, 164, 166, 211–12; see also openness and citizen participation  106–8, 120 critical assessment and outlook  118–21 culture of  29 initiatives  55–56 lack of  99, 117, 173 level of  120, 123 in ongoing trilogues  113–17 proactive  107–9, 118, 120–23, 307 in proposal-making  110–12 reactive  108, 118, 123 register  55, 57, 65, 67 requirements  116, 118–19, 122 Treaty changes  160, 162, 165, 167, 183–86, 299, 301, 304 Treaty on the Functioning of the European Union, see TFEU Treaty revision/reform  3, 5, 129, 165, 213, 216, 222, 231 trilogues  15, 97, 99–100, 103, 108, 113–18, 120–21 documents  99, 114–15, 117, 119 negotiations  29, 95, 114, 118–22 ongoing  112–17 transparency in  113–17

trust  5–6, 17, 90, 116, 127, 278, 295, 300 TTIP (Transatlantic Trade and Investment Partnership)  61, 85, 223–24 under-representation  167, 175 uninvited publics  274, 285–86, 291 United Kingdom  6–7, 20, 79–80, 82, 120, 278, 286, 295 West Midlands Combined Authority’s Citizens’ Panel on COVID-19  7 United States  41–42, 49, 223 unrealistic expectations  200, 215, 220, 231 unresponsiveness, democratic  27 unstable frames of citizen participation  51–68 values  27–28, 34–35, 38–39, 161–62, 175–76, 179–81, 257, 284 common  34, 47 democratic  5, 39, 256, 268 legitimising  170, 309 Van Gend en Loos  36–37, 89 vertical dialogue  255, 265 visibility  13, 21, 45, 76, 267 von der Leyen Commission  127, 142, 199 voting  26, 113, 116, 167, 170, 173, 265, 309 West Midlands Combined Authority’s Citizens’ Panel on COVID-19  7 workshops  75, 194, 198, 202, 210, 280 World Health Organization  24, 293 youth  161, 167, 183, 290

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