ECI 1: EU's Citizens' Initiative is a Counterfeit for real consultative Democracy

Lisbon Treaty’s European Citizen’s Initiative is a fraud for legally required, real consultative democracy.
Responding to the European Ombudsman’s request for reactions to the Lisbon Treaty’s Citizens’ Initiative, the Schuman Project sent the following contribution on 1 April 2014. The Ombudsman recently published her report. This Schuman Project contribution was sent to the Commission by the Ombudsman.

Dear Ombudsman,
I enclose a short commentary from the Schuman Project which studies the origin, purpose and future of the supranational Community method.
Yours etc,.


Schuman Project:
Comments and criticisms on the European Citizens' Initiative  

1. Overview of citizens' initiatives now and how they should work in a Community system
There is persistent criticism that the EU/ Community system is not very responsive, nor in fact democratic. This is not true. The Community system is Europe’s most developed democratic system ever. It is so successful that it was able to bring peace after more than 2000 years of continuous war. What is also true is that it is not working. Why? because it was blocked by de Gaulle and nationalist politicians in the late 1950s and 1960s. What de Gaulle did in distorting good administration can be found on the eurDemocracy commentary, quoting his minister Alain Peyrefitte. (http://democracy.blogactiv.eu/2012/12/16/nobel3-eu-councils-brazen-nobel-expo-fraud-general-de-gaulle-originated-europes-peace/)
What we have now – and the Citizen’s Initiative is a case in point – are ineffective bandages aiming to repair the appearance but not the substance of those problems. Under de Gaulle’s take-over of France in 1957, European politicians were given tools to make secret deals without public and democratic participation. The Consultative Committees were sidelined; the Parliament was ignored and scorned. Corruption and abuse typified by Wine Lakes and Meat Mountains were just some outcomes of these non-democratic ‘package deals’ made behind closed doors in the Council of Ministers. Schuman said all institutions should be open to the public so they could come under the control of public opinion. The Council shut its doors. Many still prefer this structure today.
The means to unblock those measures that ‘stifle’ and ‘chloroform’ European democracy (to use the terms of de Gaulle’s instructions to his staff) are not difficult to accomplish. However such measures as the Citizen’s Initiative are going about it in exactly the wrong direction.

Some Major defects in the Citizen’s Initiative Approach.
No matter how successful the collection of signatures is, there are major problems in (a) creating a worthwhile initiative; (b) applying the petition, and (c) evaluating it in European law.
The petition has first to be drafted. Who is authorized to do this? What if the drafting is inadequate and some people only sign with conditions and cautions? How are these to be evaluated if at all? What about highly prejudicial topics, lobbyist-propounded actions or one-sided, undemocratic and unfair propositions?

The major inadequacy of the ECI is that it ensures no real democratic process. This is apparent from the petition that was duly signed by a million Europeans end the travelling circus of the European Parliament {between Strasbourg and Brussels). The public will was clear but the institutions refused to listen.
 (Incidentally, in 1959, Robert Schuman as President of the European Parliament led a delegation to the Council of Ministers and received its assurance the seat of the Parliament would be fixed ‘as soon as possible.’ For the Gaullists, then in power, this meant never.)

Even if an ECI falls right inside the framework for the Commission to act, there is no guarantee for it to do so. Nor should it. The Commission is supposed to be independent in its own right of initiative to make proposals. It has to judge the measure, place and timing according to the proper soundings laid out in the Treaties and according to the Community method. (The core of the problem is that the Commission does not make the soundings with the body it is supposed to be in permanent dialogue with. That is the fully elected, democratic Consultative Committee.)
Thus the ECI may find itself in direct conflict with the Community method and therefore only adds to the frustration of citizens who deplore what they consider the lack of democratic sensitivity of the Commission. There are quite a number of other objections of this order, which I will omit here for sake of brevity.

Now consider what some might classify as the ideal ECI case. A petition is launched, it gathers sufficient signatures, and the Commission takes it on board as a proposal. It is passed by the institutions that have to give an opinion: Parliament, Consultative Committees (Economic and Social Committee, Committee of Regions, Scientific and Technical Committee) and the Council of Ministers. It then is passed into law by the publication of a Directive in the Official Journal

Then there is a dispute. Another Directive is passed to correct the problem. The case is taken to the European Court of Justice. How should the Court deal with the two Directives? Is the Directive that has the support of a million-signature petition more powerful, legally speaking, than the second Directive that has ‘only’ passed through the European institutions? If the Court overturns the first Directive, would there not be an uproar because it is seen by some as a super-democratic Directive compared to one that does not have ECI support? Any judgement is likely to raise controversy and lower public trust in the institutions by either one side or another.

Isn’t the solution then to make sure that the present institutions are acting to their full capacity as democratic support to citizens and are representative and responsive? How can the institutions be UNcholoroformed and UNgagged from the stifling anti-democratic mechanisms introduced at the time of the Gaullists. 

2. The Community Method

A full description of how the Community method should work and how it can provide the most sensitive form of democracy is given on the Schuman Project site at fed.htm .
The principle is that the full range of public opinion should be able to express their interests in any European legislation. This opinion can help to improve it, rescind it where necessary, and initiate whole new sectors that should be placed under democratic control broader than international agreements. For example a fully fledged Energy Community could be created to deal with the present energy and financial crisis arising from high gas and oil prices by cartels.
The Community method provides democracy at three levels: nation States; individuals and thirdly the democratic associations and ‘collectivities’. Another innovative institution is the European Commission which is defined in early treaties as supranational. That means it is (a) independent of all interests (b) it is impartial (c) it is composed of a small number of people selected on the basis of their wisdom, experience and their openness to the other institutions as sources of information, needs and interactions.


The Commission
At present the Commission does not fulfil these treaty obligations that
(a) its membership should be open to all citizens Lisbon Treaty (LT) TEU Article 10.3. It is now confined without treaty sanction to politicians or ex-politicians chosen in secret.
(b) Politicians have changed the Commission where originally no member was a member of political parties to full political nepotism. The LT says only that the Commission should be chosen at the time of the EP elections and taking the results into account. It nowhere says that parties may present candidates for Commission president. This is ruled out because any person aligning himself to a party political programme is by definition partial and not independent. Politicians refuse to resign from parties even though the treaties say in Article 245 TFEU: ‘Members of the Commission may not, during their office, engage in any other occupation, whether gainful or not.’
(c ) The present situation where Commissioners become political candidates for the EP, as it were on holiday from the Commission, then return to the Commission to judge on sensitive matters often dealing with governmental and political corruption is untenable to any thinking person. Article 17.1 ‘the Commission shall promote the general interest of the Union’, not a partial, political one. Only persons ‘whose independence is beyond doubt’ 17.3, may be Commissioners. ‘They shall not seek nor take instructions from any government, or any institution, body, office or entity.’ This must exclude all politicians who insist on retaining membership of a political entity. This clause was introduced into the Lisbon Treaty precisely to prevent political parachuting and other abuses.
(d) By allowing politicians to play politics in the Commission, impartiality is lost, and any Citizen’s Initiative becomes dubious or worthless. As a democratic exercise the ECI that does not conform to political programmes will find itself rejected or put into cold storage – possibly as long as the Parliament circus question.


The Council of Ministers.
The treaties are quite clear that all debates, drafting and discussions should be open to the public as well as decision-making. LT TFEU Article 15 .. the Union institutions, bodies and agencies shall conduct their work as openly as possible.’ 15.2 The European Parliament shall meet in public, as shall the COUNCIL, when CONSIDERING and voting on a DRAFT legislative act.’

The Consultative Committees
The Economic and Social Committee and the Committee of Regions have the right to select their membership from among all duly qualified associations. This has never been accomplished in more than 60 years because the Council introduced a measure that Schuman and Reuter classified as ‘illegal’. It gave to itself the prerogative to choose who should be members of these bodies.
Take for instance the Economic and Social Committee which is by treaty composed of three sections: entrepreneurs, consumers and workers’ associations. If a measure such as water accessibility for all was discussed, then a truly representative body with three sections would make sure that a petition such as a Citizen’s Initiative was balanced and fair.
If one of these groups, say the consumers managed to accumulate a million signatures for free water the tripartite Consultative Committee would not be able to pass an Opinion on the Commission’s proposal because it lacked the support of the other two groups. The water entrepreneurs would not be willing to supply water for free, nor would workers in the water industry as they would not get paid and their working conditions would deteriorate. That is the reason for the threefold division requiring that such matters are discussed at the technical, economic and social levels to make sure that Directives work. Fairness is what he called an independent supranational value.
Schuman said when he introduced the Community method to the Council of Europe that the Consultative Committee would have powers equivalent to the Council of Ministers. De Gaulle saw this as a problem to his nationalistic politics. He made sure that the four Consultative Committees were rendered a political cipher. That is contrary to the treaties and natural justice which is the foundation of the Community method.


The European Parliament
A number of criticisms can be made about how the EP has never had fully democratic elections according to treaty specifications. They will not be dealt with here for space reasons. (http://www.schuman.info/election1.htm and http://www.schuman.info/election2.htm ).


Conclusions
The major means to have an effective Citizen’s Initiative is to strengthen the Consultative Committees and make sure they have proper elections. They will thus have greater credibility when for the first time they take the Commission or Council to Court. In the history of European institutions, the Council of Ministers only began to take the Parliament seriously when it took the Council and Commission to Court for failing to make full consultation with it. After that, elections were organized in 1979.
As it stands the Citizen’s Initiative is no substitute for real democracy based on the Community method.