Explanatory Memorandum to COM(2017)482 - European citizens’ initiative

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dossier COM(2017)482 - European citizens’ initiative.
source COM(2017)482 EN
date 13-09-2017



1.

CONTEXT OF THE PROPOSAL



· Reasons for and objectives of the proposal

The European Citizens' Initiative (ECI) is a right enshrined in the Treaty on European Union (TEU). Article 11, para 4 TEU provides that 'Not less that 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 instrument aims to enhance citizens' participation in the democratic life of the European Union by allowing them to request the Commission directly to submit a proposal for legal acts of the Union for the purpose of implementing the Treaties.


In accordance with Article 24 of the Treaty on the Functioning of the European Union (TFEU), the rules and procedures for the ECI instrument were laid down by the Regulation (EU) No 211/2011 on the citizens' initiative of 16 February 2011 1 . This Regulation entered into application in April 2012. The legal framework for the ECI is complemented by Commission Implementing Regulation (EU) No 1179/2011 of 17 November 2011 laying down technical specifications for online collection systems pursuant to Regulation (EU) No 211/2011 2 .


In its first report on the application of the Regulation adopted in 2015 3 , the Commission listed a number of challenges arising from the implementation of the Regulation in the first three years since its entry into application. In this report, the Commission made a commitment to implement measures to improve the functioning of the ECI instrument and to further analyse the impact of these challenges. To this end, the Commission launched several technical studies over the past years to analyse these challenges and issues such as the online collection systems for the ECI and the simplification of data requirements for signatories.


Following the adoption of the Commission report in 2015, the ECI instrument has been subject to a review process over the past two years. Other EU institutions, bodies and civil society stakeholders have also assessed and evaluated the instrument, identifying shortcomings in the way the ECI instrument operates and obstacles encountered by organisers for launching citizens' initiatives. In particular, the European Parliament resolution 4 identified a number of challenges and called for the revision of Regulation (EU) No 211/2011, the Commission Implementing Regulation (EU) No 1179/2011, and for the adoption of a set of amendments to improve how the ECI instrument functions.


Five years since the entry into application of the Regulation, Union institutions, Member States and stakeholders have also gained experience in implementing this instrument of participatory democracy at EU level. The Commission report and the contributions received during the review process converge on a set of key areas for improving how the ECI is implemented and facilitate its use by citizens. While various measures were taken to that effect by the Commission under the current legal framework, a substantial set of identified bottlenecks stem from the provisions in the Regulation and can only be addressed by revising it. A legislative proposal is therefore needed.


The aim of this proposal is to improve how the ECI functions by addressing the shortcomings identified over the past years with the main policy objectives of: (i) making the ECI more accessible, less burdensome and easier to use for organisers and supporters; and (ii) achieving the full potential of the ECI as a tool to foster debate and participation at European level, including of young people, and bring the EU closer to its citizens.

· Consistency with existing policy provisions in the policy area

Increasing the democratic legitimacy in the EU through enhanced citizens' involvement and participation is one of the 10 priorities of the Commission (Priority no 10 – A Union of Democratic change) 5 . This proposal contributes directly to this priority objective by making the ECI instrument less burdensome and more user-friendly so that it can achieve its full potential as an instrument for citizen participation at European level and bring the EU closer to its citizens. An improved ECI instrument complements the political rights already enjoyed by Union citizens, namely the right to vote and stand as a candidate in municipal and European Parliament elections 6 . It also extends opportunities for participation at European level among young European citizens.


The Commission has implemented, and continues to implement, a series of non-legislative measures to facilitate the use of the instrument by organisers and citizens. This includes in particular: (i) enhanced support and assistance to organisers; (ii) improvements in the registration phase, including the possibility of partial registration of initiatives; (iii) offer to host on the Commission servers the online collection systems for citizens' initiatives; (iv) improvements in the online collection software for the ECI also made available to organisers free of charge; and (v) the planned set up of an online collaborative platform for the ECI. However, more must be done to improve the functioning of the instrument so that it reaches its full potential.


The improvement of the ECI instrument is consistent with other Commission initiatives, reflecting the political guidelines of the Juncker Commission, aiming at enhancing citizens’ involvement and participation in EU policy-making.


In particular, the Better Regulation Agenda 7 increases the opportunities for citizens and stakeholders to contribute to EU policies throughout the policy and law-making cycle and improves the consultation mechanisms to this end, making stakeholder consultation an essential element of policy preparation and review. In the field of EU Citizenship, promoting and enhancing citizens’ participation in the democratic life of the EU is also one of the key objectives and areas for action highlighted in the third EU Citizenship Report of January 2017 8 . Similarly, the ‘Rights Equality and Citizenship’ and ‘Europe for Citizens’ programmes together aim to foster European citizenship, promote the rights deriving from European citizenship, and improve conditions for civic and democratic participation at EU level and implement a set of actions to this end 9 . The eGovernment Action Plan 2016-2020 10 also aims to facilitating digital interaction between administrations and citizens/businesses for high-quality public services.


· Consistency with other Union policies

The proposal is also fully consistent and compatible with existing Union policies. The revision of the Regulation updates and improves a number of specific provisions in the ECI legal framework in light of developments in EU legislation since the Regulation on the citizens' initiative was adopted in 2011.


This includes in particular, the reform of the rules of data protection and adoption of Regulation (EU) 2016/679 (General Data Protection Regulation) 11 in 2016. The General Data Protection Regulation fully applies to the processing of personal data under the ECI Regulation by the organisers and Member States authorities, and provides for the specific responsibilities to protect the personal data collected for the European citizens’ initiative. At the same time, the proposal ensures the applicability of [Regulation (EC) No 45/2001 12 ] on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies which applies to the processing of personal data under this Regulation by the Commission.


Similarly, with regard to the specific rules on the central online collection system for the ECI, the proposal allows inter alia to take into account Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market 13 . Accelerating the take-up of eIDAS services, including eID and eSignature is one of the key objectives of the EU eGovernment Action Plan 2016-2020 14 within the framework of the Digital Single Market Strategy for Europe (DSM) 15 .


3.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY


· Legal basis

The proposal is based on Article 24 of the Treaty on the Functioning of the European Union (TFEU) on the adoption of the provisions for the procedures and conditions required for a citizens' initiative within the meaning of Article 11 of the Treaty on European Union.

· Subsidiarity (for non-exclusive competence)

The subject-matter of this Regulation falls under the exclusive competence of the EU according to Article 24 of the Treaty on the Functioning of the European Union (TFEU) since only the Union can adopt the rules and procedures governing the European citizens’ initiative. Therefore, the subsidiarity principle does not apply.

· Proportionality

This proposal complies with the principle of proportionality as set out in Article 5 of the Treaty on European Union since it does not go beyond what is necessary to achieve the objectives described above.

The proposal provides for a set of targeted improvements in the implementation of the ECI instrument to make it more accessible and easier to use for organisers and citizens. This includes measures related to the competences of the national authorities in the Member States, namely the simplification of the data requirements for signatories and the improvement of the online collection of statements of support by establishing a central collection system for the European citizens’ initiative.

It also contains more limited amendments in other areas such as the certification of online collection systems, the verification and certification of statements of support in the Member States and the rules on liability and penalties where the proposal leaves a margin of discretion for it to be implemented in accordance with national law.

· Choice of the instrument

Article 24 TFEU provides a specific legal basis for the European citizens’ initiative and the adoption by means of regulations of the provisions for the procedures and conditions required for a citizens' initiative within the meaning of Article 11 of the Treaty on European Union. Only a Regulation having direct application can provide the necessary rules and conditions for the implementation of an instrument with European dimension and as the European citizens' initiative.

This regulation aims to amend and improve the existing rules and conditions provided by Regulation (EU) No 211/2011 on the citizens’ initiative. The revision also offers an opportunity to simplify the current structure of the Regulation to improve its clarity and consistency. Since the amendments to be made are substantial and concern the fundamental provisions of the existing Regulation, that act should, in the interest of clarity for citizens and organisers, be repealed and replaced.

4.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS


· Ex-post evaluations

To evaluate the existing legislation and identify improvements for revision of the Regulation (EU) No 211/2011, the Commission carried out extensive stakeholder consultations, commissioned a number of studies on specific issues, and received an opinion from the REFIT platform. This process is outlined below and presented in detail in the Staff Working Document which accompanies the proposal. On the basis of this process, the Commission identified a number of shortcomings in the Regulation which have an impact on the effectiveness and efficiency of the instrument.

The problems identified can be structured around the following three aspects:

(i) the difficulties encountered by the organisers in the registration phase including the high rate of refusals to register proposed citizens’ initiatives;

(ii) the complexity for organisers of initiatives to collect statements of support, as evidenced by the low rate of successful initiatives, i.e. initiatives that manage to reach the required number of signatories within the one year collection period;

(iii) low number of initiatives reaching the one million threshold and the limited impact so far generated by citizens' initiatives.

Several rules currently foreseen in the ECI Regulation are considered to be complex and burdensome for the ECI organisers, signatories and competent authorities in the Member States. This includes in particular: (i) the registration phase; (ii) the ECI lifecycle and time limits; (iii) the setting-up of online collection systems and the certification of these systems by the Member States; (iv) the diverging personal data requirements for the ECI signatories; and (v) the fact that the personal data are collected under the responsibility of the organisers. Several stakeholders consider the impact and the follow-up given to the three first successful initiatives so far to be limited.

· Stakeholder consultations

The stakeholder consultation carried out on the Regulation on the European citizens’ initiative had two phases:

- the first phase (2015-March 2017) started with the Commission's report on the application of the ECI Regulation. This phase aimed to gather views on the Regulation and on how to improve the instrument, under the existing legal framework and also if the Regulation were to be revised. Several targeted stakeholder consultations have taken place as part of evaluation actions carried out by the Commission and other institutions such as the European Parliament and the European Ombudsman. The Staff Working Document which accompanies the proposal provides more detailed information on these consultations and evaluations.

- the second phase built on the results of the first phase and focused on gathering input on the suggestions for improvement and options for the revision of the Regulation, notably via a 12-week public consultation.

The public consultation sought opinions on a general evaluation of the current framework and the ECI instrument and on options for improvement as well as on more specific elements grouped in the key phases of the ECI lifecycle: (i) preparatory phase; (ii) registration of initiative; (iii) collection of statements of support; (iv) submission to the Commission and follow-up; and (v) transparency and awareness-raising. The Commission received 5.323 responses, 98% from citizens.

Overall, input has been gathered from a wide range of stakeholders, in particular from citizens (signatories/potential signatories), ECI organisers and civil society organisations but also Member States' competent authorities, researchers (academia or think tanks), public authorities managing similar participatory instruments, hosting and software providers, data protection authorities in the Member States. When the Commission analysed and summarised the information gathered, it has given particular attention to input from citizens, organisers and civil society organisations as these constitute the main users of the instrument. The results of the stakeholder consultation process are summarised in a synopsis report annexed to the Commission Staff Working Document accompanying the proposal.

The following suggestions resulting from the consultation process have been introduced in the proposal:

– Improvements in the registration procedure including the possibility of registering initiatives partially.

– A helpdesk service by the Commission and an online collaborative platform for the ECI providing a forum for discussion and advice and support to organisers.

– A central online collection system set-up and operated by the Commission;

– The signatories' data requirements are simplified and it will be possible for all EU citizens to give their support based on their nationality;

– The minimum age for signatories is set at 16 years;

– Organisers can choose the start date for the collection campaign;

– The possibility for signatories to be kept informed by email.

Some suggestions have not been taken further either because they were considered less effective or less efficient than other ones or because they were not legally possible. Detailed explanations are provided in Staff Working Document accompanying the proposal.

· Collection and use of expertise

The Commission relied on the following external contributions:

Recommendations from other EU institutions and bodies, in particular the European Parliament resolution on the European citizens’ initiative, as well as a number of specific studies have provided input to the review process 16 .

Four dedicated studies on the implementation of the ECI launched by the Commission 17 :

– Assessment of ICT impacts of the Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative.

– Study on the use of Electronic Identification (eID)
for the European Citizens’ Initiative.

– Study on data requirements for the European Citizens’ Initiative.

– Study on online collection systems and technical specification pursuant to Regulation (EU) No 211/2011 and Commission Implementing Regulation (EU) No 1179/2011.

In addition, a number of other studies have provided input to the review process. These studies are listed in Annex 1 of the Commission Staff Working Document accompanying the proposal.

The revision of the ECI Regulation has also been discussed in the framework of the Expert Group on the citizens’ initiative with the participation of representatives from national authorities in the Member States, which has also provided input to the revision process, including in particular specific contributions submitted by several delegations 18 .

· Impact assessment

Given its institutional nature, the revision of the Regulation (EU) No 211/2011 has no direct significant economic, social or environmental impacts, and an impact assessment was not considered necessary. The technical and practical measures to simplify the ECI can, however, be expected to reduce administrative burdens for both the organisers and the Member States. The different options for improving the ECI have been assessed in the Commission Staff Working Document accompanying the proposal as well as in a number of specific studies on the implementation of the European citizens’ initiative.

· Regulatory fitness and simplification

The REFIT platform adopted an opinion on the ECI in June 2016 19 , and identified a number of ways in which it could be simplified, in particular: (i) improvement in the registration phase and advice and support to organisers; (ii) simplification of the data requirements for signatories; (iii) measures to simplify citizens' committee and reduce the liability of organisers; (iv) ECI timeline and date of start of the 12-month collection period; (v) improvement of the online collection systems; and (vi) enhancing awareness-raising actions for the ECI.

The proposal contains improvements in all these areas and includes specifically a set of provisions in line with the recommendations of this opinion as explained in more detail in the Commission Staff Working Document which accompanies the proposal.

·Moreover, several provisions of the proposal will allow for improved effectiveness, efficiency and savings in several areas such as online collection, translations, statements of support forms, and submission of statements of support to national authorities in the Member States. The emphasis has been put on making the instrument more accessible and less burdensome and costly for organisers and signatories but some also concern efficiency and savings for public authorities, including the Commission and the competent national authorities. Fundamental rights

The proposal takes full account of the fundamental rights and principles recognised by the Charter of Fundamental Rights of the European Union, and in particular its Article 8, which states that everyone has the right to the protection of their personal data.

2.

BUDGETARY IMPLICATIONS



The specific budgetary implications of the proposal relate to a number of online systems for the European citizens’ initiative which the Commission will put in place and make available free of charge to citizens and organisers. In particular, the proposal foresees the set-up, maintenance and development of the following online tools: the official register for the European citizens' initiative (Article 4); the collaborative platform for advice and support to citizens and organisers (Article 4); and the central online collection system for the ECI (Article 10).

The 'Legislative financial statement' accompanying the proposal provides a detailed assessment of the budgetary implications and the human and administrative resources required to implement these systems and services to improve the European citizens' initiative.

5.

5. OTHER ELEMENTS


· Implementation plans and monitoring, evaluation and reporting arrangements

The proposal foresees that the Commission will review the functioning of the European citizens’ initiative periodically and present a report to the European Parliament and the Council on how it is being applied no later than five years from the date of its entry into force and every five years thereafter. These reports will be public.

· Explanatory documents (for directives)

6.

N/A


· Detailed explanation of the specific provisions of the proposal

Regulation (EU) No 211/2011 on the citizens’ initiative provides for the procedures and conditions required for the European citizens’ initiative. This proposal provides for a set of improvements to make the ECI more accessible, less burdensome and easier to use for organisers and supporters; and to achieve the full potential of the ECI as a tool to foster debate and citizen participation at European level and to bring the EU closer to its citizens.


Chapter 1 – General provisions


Article 1 provides for the scope of application of the Regulation.


Article 2 stipulates the right of every citizen of the Union of at least 16 years of age to support an initiative by signing the statement of support in accordance with this Regulation.


Article 3 provides for the required number of signatories for a valid initiative including in particular the support of at least one million signatures in at least one quarter of the Member States. It further specifies the requirement to obtain in at least one quarter of Member States the minimum number of signatories set out in Annex I which continues to correspond to the number of the Members of the European Parliament elected in each Member State, multiplied by 750.


Article 4 enumerates the measures to provide information and assistance to organisers of initiatives by the Commission and the Member States. It builds on existing measures under Article 4 of Regulation (EU) No 211/2011 including in particular information and assistance and the ECI official register maintained by the Commission. It also introduces the requirement to make available an online collaborative platform for the ECI providing a discussion forum as well as information and advice to organisers, support to organisers with regard to the translation of the main elements of their initiatives into all official languages, and information and assistance measures to be implemented by the Member States to ensure proximity to citizens.


Chapter 2 – Procedural provisions


Article 5 provides for the requirements for the organisers of initiatives, including the formation, composition and responsibilities of the group of organisers composed by at least seven citizens of the Union entitled to vote in the elections to the European Parliament and residents of at least seven Member States. It also introduces the possibility for a legal entity created for the purpose of managing an initiative to be considered as the group of organisers for the purpose of the Regulation. This Article also includes provisions clarifying the conditions of the liability of the group of organisers. While liablitity for the processing of personal data remains regulated under the General Data Protection Regulation, this Article provides that the group of organisers shall be jointly and severally liable for any other damage caused in the organisation of an initiative by unlawful acts committed intentionally or with serious negligence.


Article 6 sets out the procedure and conditions for the registration of initiatives by the Commission. It provides that statements of support may only be collected after an initiative has been registered and establishes the requirements for the registration or refusal of initiatives. It also introduces the possibility of partial registration of initiatives in cases where part(s) of the initiatives, including their main objectives, do not manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties.


Article 7 provides for the right of the group of organisers to withdraw an initiative that has been registered at any time before it is submitted to the Commission in accordance with the procedure laid down by the Regulation.


Article 8 stipulates the time limits of the period to collect statements of support, including the right of organisers to choose the starting date of the collection period, within three months from the registration of the initiative, and the maximum duration of 12 months for the collection period.


Article 9 provides for the procedure and conditions for collecting statements of support. It clarifies that statements of support for initiatives may be collected online or in paper form and that only forms which comply with the models set out in Annex III of the Regulation may be used to collect statements of support. A person signing a statement of support shall be required to provide only the personal data set out in Annex III. Member States shall inform the Commission whether they wish to be included in part A or B of Annex III before 1 July 2019. It introduces the possibility for Union citizens to support an initiative online through the central online collection system referred to in Article 10 by using their notified electronic identification means within the meaning of Regulation (EU) No 910/2014. It also stipulates that a person may sign a statement of support only once.


Article 10 introduces the requirement for the Commission to set-up and operate, by 1 January 2020, a central online collection system made available free of charge to organisers of registered initiatives and allowing citizens to provide support to initiatives online. It specifies that the system shall be set-up and operated in accordance with Commission Decision (EU, Euratom) 2017/46 on the security of communication and information systems in the European Commission. It also foresees the possibility for citizens using the central online collection system for the ECI referred to in Article 10 to support initiatives through statements of support by using notified electronic identification means or signing with an electronic signature within the meaning of Regulation (EU) No 910/2014 and provides the corresponding obligations of the Member States in this regard.


Article 11 stipulates the possibility for organisers to set up their own individual online collection systems, the security and technical features for these systems and the procedure for the verification by the competent national authorities in the Member States. Such verification shall be without prejudice to the powers of the national supervisory authorities under Regulation (EU) 2016/679. It builds on the conditions under Article 6 of Regulation (EU) No 211/2011 and provides for the adoption by 1 January 2020, of new technical specifications for individual online collection systems replacing the current Commission Implementing Regulation (EU) No 1179/2011.


Article 12 provides that each Member State shall verify and certify the statements of support signed by their nationals. It clarifies the conditions of the verification to be carried by the competent national authorities and the issuing of a certificate by these authorities indicating the number of valid signatures collected in each Member State.


Article 13 lays down the conditions and time limits for the submission of initiatives to the Commission.


Article 14 sets out the publication and public hearing phase for initiatives submitted to the Commission and sets out the conditions for the public hearing at the European Parliament within three months from the submission of the initiative by the organisers. It also enhances the requirements for the participation of interested stakeholders and balanced representation of relevant public and private interests in the hearing co-organised by the Commission and the European Parliament. It also provides for the representation of the Commission at an appropriate level as well as the opportunity for representatives of Union institutions and advisory bodies to participate in the hearing.


Article 15 provides for the procedure for the examination and response to European citizens' initiatives by the Commission, including the requirement for the Commission to receive the group of organisers at an appropriate level as well as to set out in a Communication its legal and political conclusions on the initiative, the actions it intends to take, if any, and its reasons for taking or not taking action. It also extends the time period of this phase from three months under Regulation (EU) No 211/2011 to five months and introduces specific provisions on the notification of the Commission's response to other Union institutions and advisory bodies as well as the possibility of informing signatories and citizens on the response given to the initiatives.


Chapter 3 – Other provisions


Article 16 lays down the transparency requirements with regard to the sources of support and funding for initiatives throughout the procedure and at the time of the submission to the Commission in accordance with Article 13.


Article 17 provides for awareness-raising and communication activities on the ECI to be carried out by the Commission as well as for the possibility for organisers and the Commission to collect emails from signatories for communication purposes where the data subject has given consent to the processing of his or her personal data for such specific purposes and in accordance with data protection rules.


Article 18 provides that Regulation (EU) 2016/679 applies to processing of personal data under this Regulation. The representative of the group of organisers, or as the case may be the legal entity created for the purpose of managing the initiative, and the competent authorities of the Member States are the data controller(s) within the meaning of Regulation (EU) 2016/679. It also provides for a set of requirements for the protection of personal data, including the time limits for the destruction of the statements of support by the group of organisers, the Commission and the competent authorities in the Member States.


Article 19 stipulates the designation of competent authorities in the Member States to carry out the tasks laid down by the Regulation and the publication of this information in the register.

Article 20 provides for the obligation for the Member States to communicate to the Commission the specific provisions adopted in order to implement the Regulation for the purposes of the publication of these national provisions in the register.

Chapter 4 – Delegated acts and implementing acts


Article 21 establishes a committee, within the meaning of Regulation (EU) No 182/2011, for the purpose of the implementation of Article 11(5) on the adoption of technical specifications for the individual online collection systems for the European citizens’ initiative.


Article 22 empowers the Commission to adopt delegated acts concerning amendments to the Annexes to the Regulation within the scope of the relevant provisions thereof.


Articles 23 provides for the conferral to the Commission of the power to adopt delegated acts for an indeterminate period of time for the purpose of amending the annexes to the Regulation and the conditions for the exercise of the delegation for powers laid down by the Regulation.


Chapter 5 – Final provisions


Article 24 contains the standard clause on the review of the application of the Regulation and presentation of a report to the European Parliament and the Council no later than five years from the date at which the Regulation becomes applicable and every five years thereafter.


7.

Article 25 provides for the repeal of Regulation (EU) No 211/2011 and provides that references to the repealed instrument are to be read as references to this Regulation.



Article 26 contains the standard clause for entry into force and applicability, including a transitional phase providing that the Regulation shall apply from 1 January 2020 except for Articles 9 i, 10, 11(5), and 19 – 24 which shall apply from the entry into force of the Regulation.