The European Citizens' Initiative and Habermas : The transnationalization of the democratic space

(1)

THE EUROPEAN

CITIZENS’ INITIATIVE

AND HABERMAS

The transnationalization of the democratic space

JULY 26, 2018

UNIVERSITY OF AMSTERDAM

THESIS SUPERVISOR: PROF. DR. C. (CHRISTINA) ECKES Theophile Maiziere

(2)

Page | 1

Abstract:

The European Citizens’ Initiative is one of the latest attempts at legitimizing the decisions of the European Union. The initiatives allow for citizens to put forward matters they consider to be important and allow for them to be reviewed by the Commission and potentially be presented in front of the European Parliament. It is therefore a form of participative democracy. Due to the constant criticism the EU faces when it comes to its democratic deficit, this Thesis attempts to look further into this latest development to understand whether the project is heading down a more accepted and democratically legitimized path. To

understand this, the Thesis looks at the ECI in the light of the works of the German philosopher Jurgen Habermas. He believes the European Union’s finality is to ensure the continuation of the democratic lifestyle of its citizens. To do so, it needs to install a proper transnational democratic space. The Thesis therefore looks at the ECI in the light of Habermas’ vision of a transnational democratic space for Europe. The research performed here allows us to understand that the ECI is a very ambitious and welcome project when it comes to furthering democracy on the European level, but it suffers from many issues. Indeed, its process is arguably too complex and inaccessible to the common citizens. This explains the disappointing results the ECI has shown over the years. Very few initiatives actually manage to successfully go through the necessary steps. With evidence put forward in this work we manage to understand that this project of initiatives is an insufficient democratic mode of juridification. It cannot be said, in its current form, to represent Habermas’vision of a transnational democratic space (which would need to take the form of Habermas’ double sovereignty idea). The ECI fails to elevate the role of the European Union citizen to the level of the National citizen when it comes to decision making with the EU. The ECI allows us to understand that the issues plaguing it are the result of how the EU itself has developed and the limits it has imposed upon itself (for various reasons). A rethinking of the treaties might be in order if we wish to see the ECI reach its full potential.

(3)

Page | 2

The European Citizens’ Initiative: An Answer to

Habermas’ democratic deficit?

Introduction

“The issue of the Democratic deficit never seems to go away” said Andrew Moravcsik at the 17th annual Hungarian Political Science Association conference in Budapest1. More than 60 years after the end of the Second World War, the EU finds itself in a difficult situation (Brexit being one strong example of the issues it faces today). The Admirable and idealistic vision of the European Union project has finally been caught up by the political realities of our times. The fragility of the European Union comes from within (though it still faces important external challenges). As a result of the will of both right and left wing political elites, the European Union construction has happened for the people, without the people. The EU finds itself confronted with the growing resistance of the past 20 years. Maastricht treaty referendums were barely won in certain countries. The Treaty of Nice found itself rejected by founding members like France and the Netherlands. The subsequent implementation of some of the measures put forward in the Nice treaty through the Lisbon treaty did not help redeem the population’s trust in the EU project. The low voter turnout to the European Parliament elections is a clear sign the project is still threatened by this internal fragility. The divide between populations and the pro-European politicians has consistently increased. Another element worth criticizing is Europe’s peace claims. The EU sees itself as vehicle for peace. It intended to evolve by going beyond national identities. It wished to play an important role on the global scene by upholding the values it held dear. It thought itself capable of this through the power of its norms, providing aid, and the force of its civil society. It would establish a strong presence without the need to become a super power or a powerful military force (but modern newfound support for European Defense forces proves otherwise2). Today’s Europe finds itself confronted with the reality of the modern world. The deregulation of the global economy has forced us to seek competitiveness and rendered ideas of a social Europe more difficult to achieve. The Economic crisis has led to the Greek crisis which in turn pushed us towards draconian austerity measures. The refugee crisis has tested our capability for cooperation, unity and acceptance (which ver y

1_{Central European University, 'Andrew Moravcsik Discusses Democracy And The EU At A CEU Conference'}

<https://www.youtube.com/watch?v=FgRE4Kukys4> accessed 7 May 2018.

2_{Justin Huggler, 'Merkel Voices Support For Macron's Proposed European Defence Force' (The Telegraph,}

2018) <https://www.telegraph.co.uk/news/2018/06/03/merkel-voices-support-macrons-proposed-european-defence-force/> accessed 5 June 2018.

(5)

Page | 4

few countries have demonstrated). The environmental crisis has presented us with new and urgent challenges. The difficulty of implementing the ambitious and admirable project that is the European Union is definitely more complicated than anticipated. The European Union was also very challenged by its expansion. The Western European electorate has had difficulty accepting the Eastern European expansion of the Union which brought with it heavy flows of migration. Globalization, social uncertainty, identity crisis and the feeling of being dispossessed of democratic rights has led many countries to show reticence towards the EU project. David Cameron, deciding to deal with the anti European feeling expressed by UKIP, decided to consult his population as to the future of the country within the Union. 51.9% of the Britons voted in favor of leaving the European Union. The result of the vote was largely seen as an expression of populism. While not necessarily being untrue, it would be wrong to fully blame the result of this interesting vote entirely on a populist phenomenon. A serious and thorough self-analysis should be conducted by the EU itself. Yet when one observes the white paper of 2017 published by the Commission, we can see serious self-reflection is lacking3. Indeed, in that paper, there is no talk about changing how decisions are taken, but only about the type of decisions and paths that should be taken. The unwillingness to acknowledge the input legitimacy issues will only further hurt the EU project as a whole. The EU cannot function entirely based on output legitimacy. The EU populations can be divided in the following way: There are up to ¼ that can be considered pro-European, another ¼ that can be considered anti-European and finally 2/4 that can be qualified as sceptics (meaning they are unsure about the EU project as a whole). This dubious population is the one we have to convince once again. Every year, election after election, referendum after referendum, the reality becomes undeniable, a substantial part of the populations is losing interest and faith in the EU. Multiple answers have been put forward in order to remedy this increasing skepticism. But overall these answers take more or less the same format: more integration. Further harmonization could prove itself useful. It can be argued that the harmonizing of budgets and fiscal measures and the creation of a European minister of finance could provide great benefits. But answers such as these still fail to help regain the trust of skeptics concerning the EU project. Others would argue we need to re center the European Union within the debate of democracy. It can be argued that we should build upon the already increased role of the EU parliament and national parliaments (on the European Union level) and develop those further to help answer problems

3_{'WHITE PAPER ON THE FUTURE OF EUROPE' (Ec.europa.eu, 2017)}

<https://ec.europa.eu/commission/sites/beta-political/files/white_paper_on_the_future_of_europe_en.pdf> accessed 9 May 2018.

(6)

Page | 5

of democratic legitimacy. After all, what better institutions to do this through than the EU’s most democratically legitimate institutions and its national counterparts. This would allow us to place the European Union citizen and the national citizen at the forefront of the debates and decision making.

This is the route German philosopher Jurgen Habermas seems to seek. He proposes Europe develops a dual sovereignty model through which the national level and the European one would be elevated to the same level in order to effectively take decisions and permit a constructive European wide conversation (while not foregoing the national level and its problematics). Habermas’s ideas seem to be the right type of self-reflection the EU needs right now. Yet, it would be unfair to say the Union has remained idle when faced with criticism. It has taken interesting measures to remedy its problems. Indeed, among the more important measures, one can point towards the European Citizens’ Initiative which aimed to provide European Citizens with a more participative form of democracy. The Initiative allowed Citizens to put forward ideas they wanted to see implemented within the EU level. But whether the Initiative has provided the EU with the necessary tools to remedy its issues is uncertain. It would therefore be interesting to ask ourselves the following question: How does the European Citizens’ Initiative respond to Habermas’ vision for a transnational European democratic space?

In order to answer this question, we will first seek to understand and analyze Habermas’s vision for Europe regarding its democratic future. Secondly, we will observe the functioning of the European Citizens’ Initiative and the results it has provided since its implementation. We will then look into whether the ECI is the proper democratic mode of juridification for the task at hand. Finally, we will attempt to understand what past limits of EU law have led us to the issues we face today with the European Citizens Initiative.

(7)

Page | 6

Chapter 1 Habermas and Monnet

Jürgen Habermas is a German philosopher and is seen as a representative of the second generation of the Frankfurter Schule (the Frankfurt school of thought). His works focus on the analysis of capitalism, the rule of law and Democracy. Habermas’ interest in the European project is relatively recent. Habermas began to express an increased interest in the European questions and the European project itself during the 90s4_{. This interest increased in the}

following years. This was especially witnessed during the period of the voting on the Treaty establishing a Constitution for Europe. He strongly argued in favor of the treaty5. For Habermas, the European issues cannot be disassociated from the broader thought on world order. The European Union and its struggles are only one of the many aspects Habermas wishes to tackle. Initially, Habermas seemed in favor of having a form of federal Europe6. Today, he defends the idea of a transnational European democratic space. This means that he does not necessarily advocate for supranational order, nor does he really argue in favor of a postnational Europe. The philosopher defends the concept of a Europe of cooperation. Through this, he wishes to see a Europe where different levels of sovereignty and representation cooperate with each other, without overshadowing and making one another disappear7.

When reading the works of Habermas one realizes that he asks a crucial question the peoples of Europe and its politicians sometimes fail to ask: What is Europe’s finality? It would appear that the building of today’s European Union rests upon the uncertainty of its finality. Though, this comes as no surprise as even the founding fathers of the European Union, like Jean Monnet, predicted this. His memoirs exemplify this: “Where this necessity will lead, and toward what kind of Europe, I cannot say. It is impossible to foresee today the decisions that could be taken in a new context tomorrow.”8_{. The forms the institutions will take during the building of the}

EU is something, as Monnet rightfully said, that no one can truly predict as they will have to

4_{Demetrios Douramanis, Mapping Habermas (Edition Eurotext 1995).}

5_{Thomas Grege, 'Habermas Forum' (Habermasforum.dk) <http://www.habermasforum.dk/> accessed 14 April}

2018.

6_{Giancarlo Bosetti, Interview with Jürgen Habermas, 'Sì, Voglio Una Costituzione Per L´Europa Federale'}

(2000).

7_{Jürgen Habermas, 'Zur Prinzipienkonkurrenz Von Bürgergleichheit Und Staatengleichheit Im Supranationalen}

Gemeinwesen. Eine Notiz Aus Anlass Der Frage Nach Der Legitimität Der Ungleichen Repräsentation Der Bürger Im Europäischen Parlament' (2014) 53 Der Staat.

(8)

Page | 7

respond to the realities of the times in which said institutions are conceived. Habermas’ writing indicates a similarity to Monnet’s understanding that “Day to day effort is needed to make one’s way forward: but what matters is to have an objective clear enough always to be kept in sight”9_{. Though one should not forget that these two men are still substantially different on}

multiple fronts. Monnet is a high official while Habermas is a philosopher. Monnet is more in favor of a technocratic approach to European integration. Like multiple of the founding fathers of the European Union Monnet had a vision for Europe which combined Federalism and functionalism. Functionalism eventually evolved into neofunctionalism through which integration was seen as happening thanks to a spillover effect. Though as much as some writers and thinkers such as Alan Millward10 or Moravscick11 would argue Europe’s evolution was very much influenced by an intergovernmental decision-making process, it would be a crucial mistake to deny the influence of the supranational and neo functionalist approaches. Monnet by advocating some form of technocratic development makes some valid points. Indeed, through this, he wishes to spare the European project from the instability of democratic life and electoral results. This allows for a better continuation of economic projects on the long term. He saw it as more favorable to bet on the abilities of engineers and economists rather than the demagoguery of politicians. Habermas, as a philosopher, shares a different opinion. He laments the uncoupling of democratic legitimacy from the political sphere12_{. Monnet had difficulties as}

can be seen in his memoirs13, of conceiving a European Union where consulting the citizens would shape its evolution. For him, the development of the European project could only happen through a technocratic and functionalist decision-making process as the peoples of Europe seemed to be more Eurosceptic than their leaders. Though one could point out the paradoxical possibility that this Euroscepticism is only present due to the exclusion (in its beginnings) of forms of democratic legitimacy. An argument could be made that by the time more democratic elements were introduced within the functioning of the European Union, the citizens had already developed an idea of Europe as a technocratic and functionalist system. This would explain the low turnout of voters to the European Parliament elections over the years14. The technocratic and functionalist Europe rests upon output legitimacy. It is through its

9_Ibid.

10_{Alan Steele Milward, The European Rescue Of The Nation-State (Routledge 2010).}

11_{Andrew Moravcsik and Peter J Katzenstein, The Choice For Europe (Cornell University Press 1999).} 12_{Jürgen Habermas, Technik Und Wissenschaft Als "Ideologie." (Suhrkamp 1968).}

13_{Jean Monnet, George Wildman Ball and Richard Mayne, Memoirs (Doubleday 1978).}

14_{Associated Press Constant Brand, 'Turnout In EU Elections 'At A New Low' (The Independent, 2009)}

<https://www.independent.co.uk/news/world/europe/turnout-in-eu-elections-at-a-new-low-1699207.html> accessed 15 April 2018.

(9)

Page | 8

achievements that it justifies itself. This may have been effective when the European project only consisted of a handful of countries, but it is no longer the case today. The EU is now made up of 28 Member States (though we will be back to 27 soon). The EU is now made up of half a billion people. Output legitimacy is no longer sufficient to justify the technocratic decision-making process. The realities of today now require further implementation of input legitimacy and among this, democratic legitimacy.

This is where Habermas steps in. He believes that Europe’s ultimate objective is to preserve the democratic lifestyle that European citizens have come to enjoy. As it was previously mentioned in this chapter, Habermas’ objective is to advocate for a transnational European democratic space. We now have to look beyond the simple nation state. Clinging to the nation state in an effort to defend your rights is an understandable reaction (and that has sometimes expressed itself through populist movements throughout Europe). But Habermas believes the answer lies in a more supranational solution (while not advocating for the end of the nation states as we know it). Today’s cooperation between nations has given rise to many agreements, treaties and international agents which now go beyond the nation state. The Comprehensive Economic Trade Agreement (CETA) with Canada comes to mind. Indeed, CETA proposes to implement an Investment court system (some form of hybrid between a court and an Investor-State Dispute settlement). Such a “court” can be argued to threaten the democratic choices of the peoples of Europe. We are still awaiting the opinion of the Court of Justice of the European Union (hereafter CJEU) to determine the validity of such a system. Nonetheless it exemplifies well the issues states now have to deal with in our modern world. It is only by transnationalizing our democracy that we can hope to overcome the nation state’s inability to protect the democratic space15. The modern nation state alone is also unable to tackle a wide variety of issues. Today’s challenges like the environment, migration, energy or defense all span beyond the national borders. The only way for the European citizens to remain in control of their future, resolve political issues, but most of all remain sovereign, is to establish a political and democratic space that goes beyond the national borders. Sovereignty has to be shared on a European level if it is to be preserved at all. For Habermas, democracy has a choice to make:

either it will survive on the European level, or it will die. To do so, he believes we have to outgrow our current conceptions of identity and sovereignty.

It is important to look at these notions as they are regularly used by eurosceptics to oppose

15_{Neue Gesellschaft/Frankfurter Hefte, Interview with Jürgen Habermas, 'Das Eigentliche Ziel Ist Die}

(10)

Page | 9

further European integration. Indeed, the argumentation of such people goes like this: There is no such thing as a European identity, therefore there is no European people capable of discussing European politics, which means there is no European citizenship and European democracy.

Sovereignty

A crucial aspect that is needed in order to form a functioning transnational democracy is that of sovereignty. The concept of sovereignty can be found in both national and international law, but one might say it is more of an idea from political science rather than law. It is a form of declaration of independence. When exercising power, declaring it to be sovereign means it cannot be put into question by external forces. Sovereignty is an idea that arrived with the modern nation state. It was a concept used to advocate independence. It was put forward to break free from the previous political system of feudalism. It was meant to promote principles of liberty and not submission. Sovereignty was the change from an outdated feudal system to a modern nation state. But this is a broad understanding of sovereignty and many authors and academics vary in their definition of the term. What is interesting to point out is the variation of understanding of sovereignty depending on the historical context. Hobbes, Rousseau or Tocqueville all present sovereignty as this absolute concept and yet all vary in their understanding of it. Becoming aware of the relativity of this concept helps open the mind and understand sovereignty as a less monolithic idea. Habermas takes into account the ever-evolving understanding of sovereignty. He asks us to differentiate between state and popular sovereignty16. Historically, the two concepts are two sides of the same coin. In order to express itself, popular sovereignty relies on state sovereignty. The state guarantees a social, fiscal, political and institutional framework which allows for democracy to exist and thrive. But this link is not made of steel. It was indeed very important during the rise of the modern nation state. Yet its importance is now dwindling. As was previously stated in this chapter, the ability of the modern nation state to respond to the needs of today is gradually withering away (the environment is a good example of a contemporary issue that the modern nation state is unable to tackle at its level). Further cooperation and sharing of sovereignty is therefore required. If the peoples of Europe wish to maintain their ability to determine their own fate, then they must learn to share their sovereignty at the European level. For Habermas, popular sovereignty is

(11)

Page | 10

the communication power of the diverse civil society17. He understands nation states as being formed of diverse groups (and not one homogenous and united nation) that express themselves through different channels in order to form popular sovereignty. In the context of the transnational European democratic space, Habermas identifies two sources of popular sovereignty: One the one hand the European Parliament which represent the European Union citizens, and on the other hand, the European Peoples and the national citizens which are represented by the Members States18 (indirectly represented in the Council). Sovereignty is therefore seen as split between the role of the European Citizen and the role of the National Citizen. This double sovereignty idea argues that the transnationalising of sovereignty should not signify a substantial loss of democratic legitimacy. Though more work is still needed in order to ensure the equality of importance of the national citizen and the European Union citizen.

Throughout his work, Habermas has strived to clarify that the concepts of identity and sovereignty were not necessarily linked to the concept of the nation state itself. As much as they may have arisen with the modern nation states, these two ideas have never truly been fixed. Expanding our ideas so we understand them to go beyond our presuppositions does not mean abandoning the idea of the nation state. The works of Jean Marc Ferry19_{(who has often}

commented on the works of Habermas) could enlighten us as to how the transnational European Democracy should be built. For him, the building of this project happens on three different levels. More precisely the coexistence of three different legal systems: Internal law, the law of the people and cosmopolitan law. Internal law consists of regulating laws between citizens within a nation state and granting them fundamental rights. We then have the law of the people which consists of relations between peoples of different nation states or between different peoples within a nation state. One might argue that the EU’s judicial structure is already more developed then the rest of international law when it comes to this second aspect. Finally, we have cosmopolitan law which refers to law associated with the European Union citizenship (meaning, free movement of persons, right of residence in another country, the right to vote in municipal elections, the right to vote in the European Union parliament). In order to ensure that democracy and popular sovereignty are maintained, further institutional reforms are required. Within this mindset, it could be said that the 2007 Lisbon treaty went in the right direction by

17_{Neue Gesellschaft/Frankfurter Hefte, Interview with Jürgen Habermas, 'Das Eigentliche Ziel Ist Die}

Transnationalisierung Der Demokratie' (2014).

18_{Jürgen Habermas and Christian Bouchindhomme, La Constitution De L'europe (Gallimard 2012).} 19_{Jean-Marc Ferry, La République Crépusculaire (Éd du Cerf 2010).}

(12)

Page | 11

expanding the role of the European parliament. Indeed, it strengthened democratic legitimacy through its increasing of the importance of the national parliaments in the decision-making process as well (the orange and yellow card procedures). It also obliged the council to render the meetings public whenever it was debating a law. Though these reforms are still insufficient.

More democratization of institutions and their processes is still required. If there is one thing we can understand from Habermas and his works, it is that a more radical

democratization is needed for Europe. But that democracy needs to be voluntary and requires a high level of willing participation from the citizens. As members of this democracy we have to do our part, while not letting ourselves be swayed by laziness or demagoguery. Political parties and the media also have an important role to play in all of this20. They need to help form the political will and opinion of the citizens. Without them, an efficient democracy cannot take place. When one sees national leaders such as Theresa May claiming credit for certain EU regulations21, it is not difficult to understand that many politicians and media have failed at their task. Habermas urges us to forget our intergovernmental practices, in order to create this essential transnational European Democratic space. It is the only way he sees for us to maintain democracy and sovereignty within our modern world. Unlike what some politicians would have you believe, a more integrated and democratic Europe means the saving of democracy. Alan Millward claims that the European project saved the nation state22_{. Today, it is up to the}

nation state to save the European project and with it, the sovereignty of the peoples of Europe.

20_{Jürgen Habermas, Europe: The Faltering Project (Polity 2008).}

21_{Jon Stone, 'Theresa May Ridiculed In European Parliament For Claiming Credit For EU Regulations' (The} Independent, 2018)

<https://www.independent.co.uk/news/uk/politics/brexit-theresa-may-ridiculed-european-parliament-plastic-bag-charge-credit-card-fee-ban-eu-a8161541.html> accessed 17 April 2018.

(13)

Page | 12

Chapter 2 The functioning of the ECI

This brings us to the European Citizens’ Initiative. This initiative is clearly an attempt to further democratize the EU decision making process. Whether it is a success is still left to be determined. In order to approach the subject, we should first define what the European Citizens’ Initiative (hereafter ECI) is. The ECI is a system through which 1 million citizens from at least 7 different member states can ask the Commission to propose legislation (as long as it is within the competence of the Commission)23. This Lisbon treaty innovation is a change from previous efforts of integration, as it proposes a more direct form of democratization. It elevates the role of the European Union citizen by moving away from the top down integration approach it previously had. The ECI allows the citizen to directly participate, for the very first time since the EU’s creation, in the creation of rules determining the development of the European Union. The Initiative relies on a transnational cooperation of citizens and therefore contributes to the making of a European civil society. Yet this initiative is being criticized. It has been said the process of bringing an initiative to the Commission is too complex24. On top of this, the process would appear to lack the necessary funding to function properly. Finally, it has also been said that the commission has ignored some of the projects created through the

ECI25. The European Union through the ECI, has decided to provide the EU citizens with an initiative

ability similar to the ones available to the European Parliament and the Council, which are defined in articles 225 and 241 TFEU. It can be said that the ECI finds legal justification in

article 11 TEU, in which it is said that “ 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

23_{'Basic Facts - European Citizens' Initiative - European Commission' (Ec.europa.eu, 2018)}

<http://ec.europa.eu/citizens-initiative/public/basic-facts> accessed 18 April 2018.

24_{'New Report Highlights Limited Of Success Of Europe Citizens' Initiative' (Theparliamentmagazine.eu, 2018)}

<https://www.theparliamentmagazine.eu/articles/news/new-report-highlights-limited-success-europe-citizens-initiative> accessed 18 April 2018.

25_{'Right2water: Commission Ignoring Citizens' Wishes' (Theparliamentmagazine.eu, 2016)}

<https://www.theparliamentmagazine.eu/articles/opinion/right2water-commission-ignoring-citizens-wishes> accessed 18 April 2018.

(14)

Page | 13

implementing the Treaties.”. Article 24 TEU is also of importance in making the ECI a reality. But such a project requires a high level of legislation to surround it and ensure it does not become a burden on the Commission. In order to achieve this Regulation 211/2011 on the

citizens’ initiative was created. Initiatives have to be put forward and supported by a Committee

of citizens made up of EU citizens capable of voting in the European Parliament elections. The organizers of the initiative which make up the committee of citizens should be made up of at least 7 people from at least 7 different member states26. They should also be able to vote in their national parliamentary elections. The initiative and the necessary information should then be registered with the Commission in one of the official languages of the EU27. In order to be properly registered the initiative has to be realistic, in accordance with the values of the European Union and within the realm of competences of the Commission. The organizers may choose to collect signatures on paper or online. For the latter, the commission will have to check the validity of the online system. It will also have to abide by a set of rules such as ensuring the security of the collection system or making sure the data gathered is stored in the territory of a Member State28_{. Once everything is validated, the organisers have 12 months to}

gather the minimum requirement of 1 million signatures29. It is important to remember that a minimum of support has to be collected from at least 7 different member states, but it is not obligatory to gather support from all member states of the European Union. The number of signatures to be acquired in a member state depends on its population and what the Commission has decided on. The identity of the signatories is then checked by the national authorities in order to assure the Commission of the validity of the signatures30. Once this is done the Commission has to review the initiative itself and provide an answer as to what it plans on doing. It may take approximately 20 months from the initiative’s registration to the legislative acts that follow (if the steps are all successfully passed). Since the beginning of the initiatives in 2012, “67 ECIs have been filed with the European Union. 19 were rejected on legal grounds by the Commission. 48 initiatives were registered. 23 missed the target of one million signatures within 12 months, while seven initiatives have been withdrawn by the organisers themselves. 7 ECIs are currently gathering signatures and 4 have managed to fulfil all the necessary requirements (The Minority SafePack Initiative has recently gained 1 million signatures and would constitute a fifth, but it still needs to be reviewed by the member states

26_{Article 3, Regulation 211/2011} 27_{Article 4, Regulation 211/2011} 28_{Article 6, Regulation 211/2011} 29_{Article 2, Regulation 211/2011} 30_{Article 8, Regulation 211/2011}

(15)

Page | 14

and the Commission). None of them have been fully implemented.”31_{. The important number}

of initiatives that have failed to properly register shows there is a real communication problem between the commission and the organizers. The 23 that have failed to gather a sufficient number of support do make us wonder if something should be changed as to the number of required signatures.

Out of the initiatives that have fulfilled the necessary requirements one can find “right 2 water”32_{which collected around 1.6 million signatures with a budget of 140,000€, or “one of}

us”33_{which collected 1.7 million signatures with a budget of 159,219€. The first one wishes to}

ensure that citizens have a right to clean water and sanitation. The other one wishes to put a ban in place on all activities involving the destruction on human embryos (which particularly concerns the area of stem cell research). It can be interesting to point out the conservative nature of this second initiative. It proves that the tool is not only used by progressive and left-wing citizens but also more right-left-wing ones. The European Citizens Initiative has therefore proven that it can be used to successfully represent the views of progressives and conservatives alike.

It is also interesting to point out that the success of all the initiatives that met all the necessary requirements is very much thanks to the national level. The latest initiative to be successful, called “Ban glyphosate and protect people and the environment from toxic pesticides” which aimed to ban harmful glyphosate-based herbicides, gathered 663,867 of its total 1 million signatures from Germany34_{. The right2water initiative gathered 1.2 million of its total 1.6}

million signatures from Germany. Nations can definitely play a deciding role in the success of an initiative.

31_{'The Challenging Making Of The European Citizens’ Initiative' (Democracy International e.V., 2018)}

<https://www.democracy-international.org/challenging-making-european-citizens-initiative> accessed 23 April 2018.

32_{'Initiative Details - European Citizens' Initiative - European Commission' (Ec.europa.eu, 2012)}

<http://ec.europa.eu/citizens-initiative/public/initiatives/successful/details/2012/000003/en?lg=en> accessed 1 May 2018.

<http://ec.europa.eu/citizens-initiative/public/initiatives/successful/details/2012/000005> accessed 1 May 2018.

<http://ec.europa.eu/citizens-initiative/public/initiatives/successful/details/2017/000002/en?lg=en> accessed 1 May 2018.

(16)

Page | 15

Disappointing results of the ECI

Unfortunately, the Commission’s response to the successful ECIs has been disappointing. The attempts to implement measures have either been vague or timid35_{. The future of the ECI may}

be grim. When looking at the number of initiatives submitted between 2012 and 2016 we notice an important drop of ECIs, with 16 initiatives being submitted in 2012 and only 3 in 2016. Though that number goes back up to 8 in 2017. It could be argued that the ECI has failed to convince the European Union Citizens by making them face a complicated and difficult process to achieve. It is tempting to reach the conclusion that the ECI has failed in its mission to further democratise Europe by bringing its citizens closer to its institutions. The results of the ECI between 2012 and 2016 have shown that the Commission is rarely able to actually open itself up to the suggestions of the citizens. It has also demonstrated the lack of knowledge of the EU citizens regarding the abilities of the Commission. Indeed, on multiple occasions, the ECIs have been overly ambitious and inadequate for the Commission’s capabilities. The “Stop TTIP” initiative is a good example of this, as it asked the Commission to put an end to TTIP negotiations. The Commission was unable to do so, as it cannot judicially intervene during the negotiation of a treaty. The “Stop TTIP” initiative also demonstrates other failures. Indeed, this ECI also concerned the Comprehensive Economic Trade Agreement (CETA) with Canada, but the Commission opposed the initiative arguing it was not legally admissible36. By the time the initiative was officially approved and confirmed to be legal by the CJEU, it was already too late as the CETA had already been partially approved.

Saying the ECI suffers from certain issues would not be an understatement. One thing that could explain the low amount of successful initiatives is the complexity of the validation process. There can sometimes be a wide gap between the number of signatures required for the Commission to examine the initiative, and the budget available to the citizens’ committee37_.

Should the ECI not be a project easily accessible by the common European Citizen? The

35_{'The European Commission Once Again Disappoints Citizens That Supported The Initiative For The Right To}

Water' (Europeanwater.org, 2018) <http://europeanwater.org/fr/news/press-releases/770-drinking-water-directive-initiative-for-the-right-to-water> accessed 1 May 2018.

36_{Bernhard Kempen, 'Legal Opinion Regarding The Admissibility Of A European Citizens' Initiative Against TTIP}

(Transatlantic Trade And Investment Partnership) And CETA (Comprehensive Economic And Trade Agreement)' (Stop-ttip.org, 2014) <https://stop-ttip.org/wp-content/uploads/2014/09/EBI-Gutachten_EN.pdf> accessed 2 May 2018.

37_{'European Citizens' Initiative: One Year Of Challenges' (euractiv.com, 2013)}

<https://www.euractiv.com/section/digital/opinion/european-citizens-initiative-one-year-of-challenges/> accessed 2 May 2018.

(17)

Page | 16

required amount of capital necessary to gather the sufficient number of signatures seems to pose a genuine obstacle in making the whole project accessible. How can the EU ever hope to strengthen its democratic legitimacy if it renders its tools accessible only to those who initially possess the means? Successfully leading an initiative requires the help of experts capable in the field of cooperation or decrypting Commission requirements and information. The “Weed like to talk”38_{initiative, which aimed to legalize cannabis under EU law, is a good example of}

the difficulties that can be expected. The initiative only managed to gather 170,000 signatures. The organisers of the project explain their failure due to their lack of funding, practical knowledge and experience in the field of lobbying campaign (on top of their web designer being convicted for cannabis possession in Poland)39 . The problem of language also arises. The need to translate thing in all of the official languages of the EU in order to make sure your message reaches as many people as it can, is something that requires a certain amount of funds and manpower. Yet the translation step is essential to any successful initiative. One of the ways for citizens to overcome the problems of economic capital, would be to ask for outside financial investment. Yet the presence of external sources of financing can render an initiative more biased. This means that Initiative organizers have to possess a strong social network and sufficient funds from the very beginning in order to fully carry out their project to fruition. This is something the average European Union Citizen may not possess. On top of this the question of information sharing is also raised. In order to sign an initiative, a citizen has to provide certain personal information such as a phone number, a home address and a passport or national ID number40. With trust in Institutions being arguably low in general41 it is not surprising that some individuals might not want to share their home address or passport numbers through a signature form. People can understandably believe that sharing this information would infringe upon their private lives. Can the gathering of signatures not be achieved through a less rigorous information requirement? Another issue that needs tackling is the minimum age requirement of the signatories. Under the current law, only citizens capable of voting the European

<http://ec.europa.eu/citizens-initiative/public/initiatives/obsolete/details/2013/000008/en?lg=en> accessed 2 May 2018.

39_{'Weed Like To Talk - European Citizens' Initiative' (Facebook.com, 2014)}

<https://www.facebook.com/weedliketotalkEU/posts/689822044466886> accessed 2 May 2018.

40_{'STATEMENT OF SUPPORT FORM FOR THE EUROPEAN CITIZENS' INITIATIVE: European Free Vaping Initiative'}

(Efvi.eu, 2013) <http://www.efvi.eu/forms/ECI-Support-Statements-Form-59-IE-EN.pdf> accessed 3 May 2018.

41_{'File:Trust In Institutions, By Age Group, EU-28, 2013 - Statistics Explained' (Ec.europa.eu, 2015)}

<http://ec.europa.eu/eurostat/statistics-explained/index.php?title=File:Trust_in_institutions,_by_age_group,_EU-28,_2013.png&oldid=235203> accessed 3 May 2018.

(18)

Page | 17

Parliamentary elections are allowed to sign European Citizen initiatives42. It has been argued that the minimum age should be lowered to 16 as many of the issues tackled by the initiatives concern the youth43. It would also allow for a widening of the pool of potential signatories and help ECIs successfully gathered the needed 1 million signatures. It could be an efficient attempt at widening European debates. Another important issue is the fact that the commission does not take into account problems arising from technical issues concerning the online signature collection system. Online signature collection problems have on multiple occasions led to a loss of signatures and time, which the Commission has done nothing about44. A redesigning of the online platform with a possibility to use Commission hosting services would tremendously facilitate the ECI process.

The ECI has imposed strict timelimits, substantial financial abilities and a considerable organisational ability. These are partially (but still consequentially) responsible for what some have called the “failure” of the ECI. The European Citizens’ Initiative has failed at creating an effective European Civil society.

42_{Article 3, Regulation 211/2011}

43_{'12 Ways To Build A European Citizens’ Initiative That Works!' (Citizens-initiative.eu, 2015)}

<http://www.citizens-initiative.eu/wp-content/uploads/2015/02/12_Recommendations.pdf> accessed 3 May 2018.

(19)

Page | 18

Chapter3

The European wide debates

The ICE has been created in the hopes of sparking European wide debates. It is one of the more recent attempts at creating a transnational European democratic space. This can therefore be expected to fit within Habermas’ ideas for Europe (which we observed in the first chapter). But to what extent this has been achieved is debatable. To find out more about this, it can be interesting to look at the data gathered by Eurobarometer reports. In a report dating from 2013, Eurobarometer45 finds that Europeans have clear preferences of topics in which they would be susceptible to launch an initiative. It finds that 37 % of them are concerned about the issue of unemployment. Education comes second receiving 23% of concern from European citizens. This is followed with concerns about fundamental rights about EU citizens (with 21%). The topic of environment is close behind with 20%, which is then followed by concerns of consumer protection with 18%. Out of the less pressing matters Europeans seem to be concerned about comes foreign affairs (9%), movement of citizens (8%), fight against terrorism (7%, though it is safe to assume that the terrorist attacks in the recent years have probably increased that percentage), agriculture (7%), EU enlargement (6%) and finally sports (4%). As much as this list of percentages presents clear variation of interests depending on the topic, the one important percentage we need to remember is the one indicating the amount of people having no opinion concerning any of these topics. That percentage is 17% (which is 2% more than the previously conducted survey). The ECI in its beginning (and arguably its prime) seems to have failed to spark interest in European wide debates. Other issues arise with the ECI: What power can an Initiative have if it contradicts already adopted legislation? Can national parliaments (with their newly attributed powers) put ECIs into question? How would such a conflict play out?

The very first Initiative Right2Water already showed us issues that could arise when the interests of the citizens clash with the legislative process. That initiative (spearheaded by a wide group of different unions) pushed the commission to present legislation which would make access to water a basic right. The Commission responded in 2014 saying it would take

45_{'PUBLIC OPINION IN THE EUROPEAN UNION' (Ec.europa.eu, 2013)}

<http://ec.europa.eu/commfrontoffice/publicopinion/archives/eb/eb80/eb80_first_en.pdf> accessed 18 June 2018.

(20)

Page | 19

the necessary steps in order to intensify their efforts in ensuring the right to water was respected by the Member States and taken into account in the development of the EU46_.

Beyond the announcements of the Commission, the ECI exercised a certain amount of influence on the already ongoing (at the time) ordinary legislative procedure. Changes to the Concessions Directive were brought through the influence of the ECI47. But could any

initiative have the power to influence legislative procedures in such a way? The Right2Water initiative (as previously stated) was spearheaded by a Union of substantial size: the European Federation of Public Service Unions (which is made up of many different Union groups representing a substantial amount of employees from the field of health, energy, water treatment, waste…). This begs to question the participative aspect of the ECI. Indeed, it appears that in order for an Initiative to have the necessary influence to make an impact, it needs to be made up of extremely organised civil society. It appears more like a rehashing of a consultation procedure than an actual participatory system capable of actual change and available to any EU citizen. The wish to create a genuine European transnational democratic space can be found among the Commission’s objectives even back in 2001. Indeed, in a white paper, the established aim is to “create a transnational ‘space’ where citizens from different countries can discuss what they perceive as being the important challenges for the Union.”48_{. The ICE is the latest}

attempt by the Commission at creating such a thing. The vice president of the Commission, a year after the launch of the ECI, called it a “success” 49_{and a “permanent feature of the}

European political landscape”50_{. As much as the ECI seems to be presented as the new}

deciding tool for creating this transnational democratic space, the numbers seem to point otherwise. In the end of 2013, 35% of citizens declared they would never consider using the

46_{'EUR-Lex - 52014DC0177 - EN - EUR-Lex' (Eur-lex.europa.eu, 2014)}

<https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52014DC0177> accessed 18 June 2018.

47_{'Statement By Commissioner Michel BARNIER On The Exclusion Of Water From The Concessions Directive'}

(Nuevatribuna.es, 2013)

<https://www.nuevatribuna.es/media/nuevatribuna/files/2014/03/19/20130621_water-out-of-concessions-directive_en.pdf> accessed 18 June 2018.

48_{'European Governance: A White Paper' (Ec.europa.eu, 2001)}

<http://ec.europa.eu/transparency/regdoc/rep/1/2001/EN/1-2001-428-EN-F1-1.Pdf> accessed 22 June 2018.

49_{'Outcome Of Right2water ECI Statement By Vice-President Maroš Šefčovič' (Europa-nu.nl, 2014)}

<https://www.europa-nu.nl/id/vji7icaza0yv/nieuws/outcome_of_right2water_eci_statement_by?ctx=vizpel2l69xr&s0e=vhdubxdwqr zw&tab=0> accessed 22 June 2018.

(21)

Page | 20

ECI, and 34% said they would barely consider it51. This brings us back to the issue that the ECI expects a high level of knowledge and organisation from its citizens. Even if a citizen is highly motivated to make use of this very interesting tool, he/she will face many hurdles in the process (as seen in the previous chapter). The whole project presupposes a certain level of knowledge when it comes to European politics and European Union Law. If the ECI wishes to evolve for the better and achieve a semblance of similarity to Habermas’ vision, the project must renew itself. This initiative project needs to create web of national and regional partners which will help it spread awareness of new initiatives. The Right2Water initiative is a good example of what needs to be done in order to have a genuine transnational space. Indeed, that previous initiative had found support from a significant group of unions through the

European Federation of Public Service Unions. It also achieved to receive support from some national and regional political structures which advertised the project within the Member States. Regional structures and support is key for the ECI to ensure its ideas are actually discussed in multiple Member States.

Insufficient democratic mode of juridification

Habermas in his book, the crisis of the European union, tells us the following: “The European Union will be able to achieve long-term stability only if it takes the steps towards

coordinating the relevant policies necessitated by the economic imperatives via a sufficiently democratic mode of juridification”52_{. The words “sufficiently serious” used by Habermas can}

be interpreted as: creating an efficient form of transnational democracy. But the ECI, finds itself cruelly limited. One of the most important limits is the Initiative’s inability to affect the treaties. Indeed, that ability is left only to the Member States. Furthermore, the regulation itself limits the initiatives by codifying that they should not be “manifestly abusive, frivolous or vexatious”53_{. Another limit (which is judicially understandable) is the fact that initiatives}

cannot go beyond the Commission’s powers54. This is might be the biggest cause of

disappointment from initiative organizers as it appears (as seen in the previous chapter) that the limits of the Commission’s abilities are not necessarily well known to the general public. It is delusional to assume that people will read the entirety of the treaties in order to fully

51_{'European Citizenship' (Ec.europa.eu, 2013)}

<http://ec.europa.eu/commfrontoffice/publicopinion/archives/eb/eb79/eb79_citizen_en.pdf> accessed 22 June 2018.

52_{Jürgen Habermas and Ciaran Cronin, The Crisis Of The European Union (Polity Press 2012).} 53_{Article 4(2)(c), Regulation 211/2011}

(22)

Page | 21

ensure that their initiatives will fit within the constraints set out in the Regulation. The Commission provides a list of topics that will be within its competence to regulate, but that list remains non-exhaustive and it is recommended to “consult the full text of the Treaties for

more information”55_{. These expectations by the Commission are simply unrealistic.}

Another important limit of the ECI is the limited amount of control available. The Commission may refuse the registration of an Initiative as can be seen under Article 4(3)

Regulation 211/2011, but it should provide a reasoning to its decision by indicating judicial

or extra judicial alternatives to the organizers. But if the Commission does not follow through when an initiative has acquired the necessary amount of signatures, in principle, there is no available remedy. The Commission’s hand cannot be forced. This can be explained by a wish by the legislators not to upset the institutional balance and the separation of the powers between the EU institutions. The Commission appears to have a monopoly on the ECI. In its current situation, the European Citizens’ Initiative could be compared more to a form of lobbying by the Citizens. The Commission has no interest in refusing all the initiatives being presented to it. Indeed, it needs to be seen as an institution who listens to the citizens,

especially since it will not be responsible for adopting the proposed legislation (which, due to the available legislative procedures, may then be adopted with significant changes). But the issue still remains: even if the Commission shows good faith, it will be unable to propose legislation out of all the initiatives as many of them are bound to be written in very broad terms (which would go beyond the abilities given to the Commission by the treaties).

In the end, it appears that only a small portion of the populations within each Member State is actually aware of the existence of such a procedure within the EU56. Even among those who know of its existence, the understanding of its functioning remains unclear. The results of all of the ECIs since its implementation allow us to draw the following conclusion, only a very small minority of people within the Member States are aware of the ECI and its functioning and are therefore capable of making use of it. It can be argued that the ECI is only truly available to specialists which would continue the issues of technocracy that the EU has constantly been accused of in the past years. It is understandably more complicated to organize forms of participative democracy on a European union scale with its population of 500 million

55_{'Can Your Idea Be A Citizens' Initiative? - European Citizens' Initiative - European Commission' (Ec.europa.eu,}

2018) <http://ec.europa.eu/citizens-initiative/public/competences?lg=en> accessed 12 May 2018.

56_{'Democracy Study - The European Citizens' Initiative Is Largely Unknown And Hardly Has Any Impact'}

(Bertelsmann-stiftung.de, 2018) <https://www.bertelsmann-stiftung.de/en/our-projects/democracy-and- participation-in-europe/project-news/the-european-citizens-initiative-is-largely-unknown-and-hardly-has-any-impact/> accessed 12 May 2018.

(23)

Page | 22

inhabitants (counting the UK), yet it would seem that improvements should be made. Further changes to improve the accessibility of the ECI would be a good place to start. The interesting aspect of the European Citizens’ initiative is its potential to create a European wide debate on topical issues. Unfortunately, the debates sparked by the initiatives remain confined to a minority with the EU. Even if the initiative is accepted by the Commission, the citizens (and more specifically the organisers) are in no way associated with the steps that follow (such as the discussion which may arise in Parliament). No larger debate seems to be organised. No opportunity is given to the citizens who oppose the accepted initiative to express their opinion and have a constructive debate.

The issues linked with the ECI do not permit us to call this the sufficiently democratic mode of juridification Habermas seems to have in mind. The inaccessibility the whole procedure allows us to determine that the European Citizens’ Initiative is not (in its current form), the appropriate tool for creating the necessary level of transnational democracy. It has not created the double sovereignty in which people participate in the will formation process, in the EU, as National citizens and European Union Citizens.

(24)

Page | 23

Chapter 4 Past issues limiting the ECI

The EU’s late adoption of the ECI can be explained by the Institutional system. This system is founded on two main ideas: The accumulation of legitimacy and the institutional balance. Both of these ideas are key to a harmonious and efficient functioning of the European Union. Initially, the accumulation of legitimacy happened on multiple levels. There was democratic legitimacy which expressed itself through the ability to directly elect the members of the European Parliament. There was also state legitimacy, with the incorporation of the Member States in the decision-making process through the Council of the European Union and the European Council. There was integrative legitimacy through the role given to the European Commission (an institution capable of transcending individual interests of states in order to protect that of the EU as a whole). And finally, the Union had acquired rule of law legitimacy through the Court of Justice of the European Union57. The democratic legitimacy provided by the European Parliament is only one among multiple, but it was initially faced with a difficult start. The First direct election only happened starting 1979, and the institution was not designed to have capabilities similar to that of the national parliaments. The parliament had a more consultative function. Its budget was inconsequential and its ability to perform controls was largely symbolic. The idea of institutional balance was put forward starting 1958 through the Union’s case law58_{. It}

allowed the court early on to verify that Union Institutions were not overstepping their boundaries. The court ensured the proper separation of powers as it was written within the treaties. This does not mean the powers were necessarily separated in a good way (the consultative function of the European Parliament at the time demonstrates that). The CJEU ensured (it still does) some form of institutional balance. But this was more of a conservative function. Indeed, by preserving and helping individual institutions see their prerogatives protected, it did not allow for a lot of change. The introduction of new forms of democracy was

therefore rendered almost impossible, unless the treaties were altered.

57_{Guy Isaac and Marc Blanquet, Droit Général De L'union Européenne (Sirey 2012).}

58_{Meroni & Co., Industrie Metallurgiche, SpA v High Authority of the European Coal and Steel Community.}

(25)

Page | 24

Since the beginning of the European Union project, Member States have found themselves concerned with the legitimacy of the Union decisions59_{. Many saw the EU as being}

democratically legitimate. Even though the EU did not possess the same democratic structures of a normal European nation state, it could be argued the representation of Member States within some of its institutions made it democratic. This is the type of logic put forward by some modern authors and academics. One of the prominent defender of this idea is Andrew Moravcsik. Indeed, he argues that Member States possess the necessary democratic functions. The representation of said democratic member states within the decision-making process therefore legitimizes the EU. The argument is that the EU is a matter of intergovernmentalism and that by ensuring proper national democratic systems, there can be no such thing as issues of democratic legitimacy on the EU level60. It was therefore argued that representative democracy was present beyond the European Parliament through other Institutions such as the Council of the European Union or the European Council. It could even be argued that the presence of consultation by the Commission before the publication of propositions was a form of participative democracy. We are therefore in a situation where the democratic problem is “from a democratic point of view relatively unproblematic”61_{. In the end the vision that was}

shared before by some (and still remains important now) is that it is not possible to compare the institutional system of the EU with that of State and therefore applying the same standards

is a useless exercise. Yet the criticism of the EU and its democratic deficit grew62_{. The request for further}

democratization became too difficult to ignore. As talked about in the introduction, the EU witnessed a distancing between the peoples of Europe and the European Institutions. The EU was (partly rightfully so) accused of being too technocratic and therefore distanced from the problems of the people. The diminished power of the National parliaments due to the growing power of institutions63. The declining participation of European Parliamentary elections and the rejection of Constitutional treaty made it clear that a democratic legitimization was

59_{Theodore Konstadinides, Division Of Powers In European Union Law (Wolters Kluwer Law & Business 2009).} 60_{Andrew Moravcsik and Peter J Katzenstein, The Choice For Europe (Cornell University Press 1999).}

61_{Central European University, 'Andrew Moravcsik Discusses Democracy And The EU At A CEU Conference'}

<https://www.youtube.com/watch?v=FgRE4Kukys4> accessed 7 May 2018.

62_{Jax Jacobsen, 'Participatory Democracy In Europe' (Transnational Institute, 2008)}

<https://www.tni.org/en/article/participatory-democracy-in-europe> accessed 12 May 2018.

63_{Francesco Rizzuto, 'National Parliaments And The European Union: Part Of The Problem Or Part Of The}

Solution To The Democratic Deficit In The European Constitutional Settlement?' (2003) 9 The Journal of Legislative Studies.

(26)

Page | 25

required. The Member States attempted to achieve this by providing more and more power to the European Parliament64_{(as it is the only directly elected institution). The Parliament through}

subsequent treaties was granted the power of being a co legislator (including when it comes to budgetary matters). It was also officially rendered capable of bringing an action for annulment under the status of privileged applicant, rendering its ability to check and maintain a form institutional balance increased65. Yet, despite the increase of parliament capabilities, the wish for further democratization did not decrease. The Treaty of Lisbon tried to address this. This is when the EU finally presented the idea of a Citizens’ Initiative. This system differs from the previously available petition system as it allows for ideas to be brought directly to the Commission66. This is supposed to render the possibility for change more probable. Unfortunately, as we saw in previous chapters of this Thesis, the Citizens’ Initiative has failed to deliver on that front.

The ECI is by no means a complete failure, it has given us a glimpse of what participative democracy can look like, but like most things, it needs to go through a period of trial and error before tuning itself appropriately to the needs of the European Union and its peoples. It has provided some change and rendered the European Union Citizens’ ability to influence the decision making higher. Through this we have gotten closer to ensuring a higher level of democratic legitimacy. There is no denying that the ECI has some transnational democratic aspects to it. And this is extremely important, as the EU citizens will be more likely to accept the laws coming from the Institutions if they are enacted through a properly democratic procedure. It is not through the threat of sanctions that obedience to the law is achieved. It has provided admirable efforts in ensuring the maintaining of the sovereignty of the European Peoples and therefore the continuation and protection of sovereignty as a whole. But the evidence is clear, the efforts have been insufficient. They have found themselves confined by the past limitations of the European Union (some of which are still present today). The current issues plaguing the ECI is due to the fact that it is overly linked to the Commission which in turn is limited by the institutional balance set through the treaty of Lisbon. If the double sovereignty concept is to be enacted through the ECI, then changes should happen. Those changes should not necessarily take the form of completely upsetting the institutional balance

64_{Articles 223 to 234 and 314 TFEU} 65_{Article 263 TFEU}

(27)

Page | 26

currently put in place, but it might be necessary (in my opinion) to review some aspects of the treaties. This would require the Member States to come together and determine a new and improved framework for the ECI.

(28)

Page | 27

Conclusion

In the end the answer to the problem question asked by this thesis is: The ECI in its current form is not implementing Habermas’ vision of transnational European Democratic space. The german philosopher Habermas, in his works, asks questions regarding the finality of the European project. For him, the European Union needs to learn to recouple democratic legitimacy with the political sphere. This needs to happen in order to achieve the Union’s ultimate objective which is: to preserve the democratic lifestyle that European Citizens have come to enjoy. To achieve this, a more supranational solution is required. The Nation state on its own (while remaining relevant) is unable to efficiently tackle the issues of today. The democratic space can only be protected if it is extended beyond national borders. Only then will the sovereignty of the citizens of the European Union be protected. To do so we have to outgrow our current conceptions of sovereignty and identity. We have to understand sovereignty as an ever-evolving concept. Habermas tells us a distinction should be made between state sovereignty and popular sovereignty (though both are very linked). The first provides us provides the latter with a social, political, fiscal and institutional framework which allows for democracy to thrive and allows for popular sovereignty to exist. Popular sovereignty is formed of diverse groups which express themselves through different channels. Habermas believing that the State is unable to fully guarantee the proper conditions for the continuation of the existence of sovereignty, argues that the two sources of popular sovereignty in Europe (the national citizens represented by the Member States and the European Union Citizens represented through the European Parliament) should be elevated to the same level. Indeed, it is only by creating this double sovereignty that we can hope to preserve the concept of sovereignty altogether. This will lead to a more integrated and democratic Europe which will in turn mean the saving of democracy.

The EU being aware of its democratic deficit, attempted to remedy this through the creation of the European Citizens’ Initiative. It tried to elevate the role of the European Union Citizen by moving away from the top down integration it previously had. The ECI, by relying on transnational cooperation, hoped to create dialog between EU citizens. By being provided with an initiative ability similar to the ones available to the European Parliament and the Council, one could have hoped for an elevation of the European Citizens and therefore a step towards