Legal opinion on European Citizens' Initiative Dec 2010

Background - December 9, 2010
LEGAL OPINION BY PROF. DR. LUDWIG KRAMER Article 11 TEU provides that one million citizens, coming from a significant number of EU Member States, may in a petition ask the EU institutions to elaborate a legislation on a specific subject. The details of this right are to be laid down according to Article 24 TFEU. There, it is stated that a regulation by the European Parliament and the Council shall fix the procedures and conditions, under which this right of petition may be exercised, and what constitutes a significant number of Member States. Until now, 6 October 2010, such a regulation does not yet exist.

The question is, whether the right of Article 11 TEU may nevertheless be exercised already by now.

Article 11 TEU is sufficiently precise. It indicates that one million citizens may request a legislative initiative. These citizens must come from a “significant” number of Member States. It is true, that the European Parliament and the Council may fix further criteria of what constitutes a “significant” number of Member States. However, any regulation which would be adopted under article 24 TFEU, would itself be capable of being scrutinized by the EU Court of Justice, whether it really complies with the requirement of Article 11 TEU. For example, if the regulation adopted under Article 24 TFEU stipulated that a “significant” number constituted (at present) 14 Member States, thus more than half of the actual members, the Court of Justice could come to the conclusion that a “significant” number would be three, four or five Member States.

This example demonstrates that the meaning of the term “significant” is not dependent on the adoption of a regulation by the European Parliament and the Council. While these institutions may have a large discretion to determine the content of “significant”, the final decision on that content is the objective of Article 11 TEU and not of Article 24 TFEU.      

Article 11 TEU wants to give citizens some possibility in participating in the decision-making at EU level. The provision fixed one million votes of citizens as the decisive criterion, being aware that- with almost 500 million citizens within the EU – this number would inevitably only assemble a minority of all EU citizens.

The term “significant” is capable of legal interpretation. In parliamentary elections at EU Member State level and at EU level, a significant number of votes entitles to have parliamentary representation. Often, this number is fixed at a level of five per cent of the votes. Within the European Parliament, deputes who come from three different Member States are entitled to form a parliamentary group. When the Council is voting on legislative proposals, under certain conditions it is sufficient that four Member States oppose a proposal for legislation in order to paralyse that proposal. It follows from all this, that in any case, where the one million signatures come from citizens from five different EU Member States, this must be considered to be a significant number of Member States which allows the provision of Article 11 TEU to be complied with.

Article 11 TEU also is unconditional. Indeed, the right of citizens under this provision is not dependent on the adoption of the EP and Council regulation. It is true that Article 11 TEU indicates that an EP and Council regulations should lay down the “procedures and conditions” for specifying the exercise of the right of petition under Article 11 TEU. However, as was pointed out above, article 11 TEU is clear and precise in itself and the right of citizens does not depend on the adoption of such a regulation. It is not in the hands of the European Parliament and the Council to suspend the right under Article 11 TEU by delaying the adoption of the necessary implementing regulation.

With regard to the direct effect of EU legal provisions, the Court of Justice has confirmed this opinion in a constant line of jurisprudence. The Court held in particular, beginning with case C-8/81 (Becker), that where a provision of EU law gave rights to citizens and provided for Member States to lay down the conditions under which this right could be exercised, the omission by a Member State to lay down such conditions could not prevent the citizen from benefitting from the right or the favourable situation which were granted to them under EU law. The situation is exactly the same, where EU institutions omit to adopt the necessary provisions in order to make a provision of the EU Treaties operational, as it is with regard to Article 11 TEU. The European Parliament and the Council had sufficient time to adopt provisions under Article 24 TFEU. Their omission cannot deprive European Union citizens from the rights which are granted to them under Article 11 TEU.

Conclusion:  Article 11 TEU with regard to citizens’ right of petition is unconditional and sufficiently precise. Therefore it is, at least in October 2010, directly applicable. The omission by the European Parliament and the Council to adopt the implementing provisions under Article 24 TFEU does not affect the EU citizens to exercise their right under Article 11 TEU.   

 Prof.Dr.Ludwig Krämer      

Madrid, 7 October 2010


Addition of 27 November 2010

(1)In reaction to the above-mentioned opinion that Article 11(3) TEU is of direct effect, the Commission services argued that the jurisprudence of the Court of Justice on the direct effect applied to the relation between EU citizens and Member States, whereas Article 11 TEU concerns the relationship between Article EU citizens and an EU institution (the Commission).

This reasoning must be rejected. The notion of direct effect was principally developed by the Court of justice, beginning in case 26/62, to underline that the EC Treaty (now the EU Treaties) do not simply concern the relations between the Member States and the European institutions, but that citizens may invoke those provisions in order to prevail themselves of rights which are given to them. Thus, the question is not, whether the direct-effect doctrine is also applicable to the relationship between citizens and the EU institutions. Rather, the only relevant question is, whether Article 11(3) TEU is unconditional sufficiently precise. As discussed above, this is the case.

(2)The second argument developed by the Commission services is that Article 11 TEU requires conditions and procedures to be fixed by the European Parliament and the Council; as long as these conditions and procedures are not adopted, Article 11(3) TEU is not applicable.

This argument was already refuted above. The right of citizens to submit a one million petition cannot be dependent on the question, if and when the EU institutions adopt implementing provisions. It was confirmed by the EU Court of Justice in numerous judgments that such rules do not empower the Member States to make conditional or restrict the application of precise and unconditional rules, but only allow them to implement such rules (see for example the lead case C-192/89, paragraph 22). Nothing else can apply to EU institutions.

 Prof.Dr.Ludwig Krämer