Is the European citizen’s initiative a serious threat for the community method?

This article proceeds to a normative claim that the potential of the European Citizens’ Initiative (ECI) – an instrument expected to increase democratic legitimacy in the EU – should be evaluated in the light of the post-Lisbon Community method and not as an additional ‘opportunity structure for citizens’ participation’. The first section explains why the Community method is primarily a mechanism of ‘output legitimacy’, even after the Lisbon Treaty. Furthermore, the legal framework of the ECI (notably the Regulation 211/2011 but also the Commission’s Green Paper preceding the adoption of the Regulation) is provided. The evaluation section concludes that the ECI’s legislative framework, far from an instrument of direct democracy, perhaps an additional ‘opportunity structure’, cannot affect the Community method nor seriously increase democratic legitimacy at the EU level due to the – simultaneous – presence of two thresholds: the intactness of the Commission’s legislative monopoly and the burdensome formalities imposed upon citizens and organisers

The relationship between European consensus, the margin of appreciation and the legitimacy of the Strasbourg Court

When determining whether a state should be granted the margin of appreciation, often the European Court of Human Rights (ECtHR, the Strasbourg Court or the Court) resorts to the method of European consensus. However, important issues remain unclarified concerning the relationship between the two notions, and how such relationship in linked to the legitimacy of the Strasbourg Court. This article firstly shows that the two notions are often, but not always, inter-dependent: there have been cases where the decision on the margin of appreciation points in a different direction than the outcome of the comparative exercise; and in further cases, consensus was not the crucial factor to be taken into consideration by the Strasbourg Court. Thus, consensus is one of the methods used by the Court in its application of the proportionality test, in order to decide on the scope of the margin of appreciation that the contracting parties enjoy. Next, the article explains why clarifying the relationship between consensus and the margin of appreciation will have implications for the Court’s interpretative practice once Protocols 15 and 16 ECHR enter into force. The multi-dimensional legitimacy of the Strasbourg Court is considered afterwards. The article then submits that the way European consensus is generally being used (i.e. as a factor which is obviously not irrelevant but also not always decisive for the outcome on the margin of appreciation) supports the multidimensional legitimacy of the Court. Nonetheless, it concludes by identifying inconsistency in the formulation of the relationship between the two notions in the ECtHR’s jurisprudence, and encourages the Court to codify in a more coherent way that relationship

The Past and Future of the Right to Petition the European Parliament

This article critically evaluates the right to petition the European Parliament, a right which has not managed, to date, to constitute a credible alternative for citizens’ participation in the EU. It argues that there are two main reasons for the shortcomings of this right. First, before Maastricht, the Petitions’ Committee suffered the consequences of a broader decline of parliamentary petitions within and beyond Europe. Second, after Maastricht and Lisbon, the petition right was affected by the (partly complementary and partly divergent) rights to complain to the European Ombudsman and to sign or support a European citizens’ initiative. In addition, and possibly as a consequence of the above reasons, throughout its life, the petition right and the Committee on Petitions more generally have not benefited from significant resources, while their visibility has been very limited. A comparative examination of the three rights (petitions, European Ombudsman, citizens’ initiative) in terms of access, scope, user-friendliness and outcome is undertaken. Looking at the future of the petition right, in an era marked by the resurgence of online petitions, the article argues that the Petitions’ Committee should strategically focus on areas which are not covered by the two aforementioned rights, namely the national level and broader policy choices in the EU, in order to maximize its input and relevancy within the EU’s decision-making world

Interpreting the Right to Interpretation under Article 6(3)(e) ECHR: A Cautious Evolution in the Jurisprudence of the European Court of Human Rights?

This article explores how the European Court of Human Rights has interpreted the right to interpretation under Article 6(3)(e) ECHR—a topic which, despite its significance for the rule of law and access to justice, has received, to date, very limited scholarly attention. The key finding is that we are witnessing a ‘cautious evolution’: the Court has progressively—yet simultaneously cautiously—developed the standards and guarantees of this right, which is one of the rights of defence under Article 6(3) ECHR and a requirement of the fair trial. The analysis focuses, in particular, on (i) how general interpretative techniques that have been developed by the Strasbourg Court were applied by the Court in its jurisprudence concerning the said provision; (ii) on the interplay between the overall fairness of the trial and Article 6(3)(e) ECHR; and (iii) on Article 6(3)(e) ECHR and the relationship between legal assistance/legal aid and the right to interpretation. In addition, the article identifies possible areas of further development of this right

Between discretion and control: Reflections on the institutional position of the Commission within the European citizens' initiative process

This article considers the institutional position of the Commission within the European citizens' initiative (ECI) process, with particular emphasis on its decision regarding the admissibility/registration of a proposed ECI, and its final decision on the outcome of an ECI which has met the necessary levels of support. The purpose of this contribution is to juxtapose the case‐law of the Court on the Commission's discretion and the relevant provisions of the Treaties with the evolution of European integration and, more specifically, the evolution of the Commission's role therein. Viewed under this prism, the Commission's powers at the registration stage (which in any event clearly fall under the scope of judicial review) are compatible with the constitutionalisation of the Union, whereas the Commission's width of discretion at the follow‐up stage, while compatible with the Commission's prerogatives, cannot easily be reconciled, nonetheless, with the Commission's limited legitimacy when compared to that of the co‐legislators, the fact that it may not always represent the Union interest, and the latter's pragmatic losses within the EU institutional balance

The Second Advisory Opinion by the Strasbourg Court under Protocol 16: A Contextual Analysis

Advisory Opinion: Requested by the Armenian Constitutional Court, Request no. P16-2019-001 Section of the Court: Grand Chamber Applicable Convention Rights: Article 7 echr – No punishment without law Primary Legal issue: “The use of the ‘blanket reference’ or ‘legislation by reference’ technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the commission of the offence and the amended criminal law.” Link to case: &lt;http://hudoc.echr.coe.int/eng?i=003-6708535-9264619&gt;.</jats:p

The independence of the European court of auditors

This article considers the independence of the European Court of Auditors (ECA) from a formal, legal perspective. It argues that the primary constitutional justification behind such independence is the ECA's need to act on behalf of and defend the EU interest. The paper discusses several dimensions of independence, including the appointment process, the number of ECA Members, and independence in the ECA's functions (both from the Member States and the EU institutions). Proposals for amendment of the existing legal framework are also explored, the most important being to put the European Parliament on an equal footing with the Council in the appointment process. Underlining that independence should not be conflated with inaccessibility, the ECA is invited to further improve its communication policy and disseminate its findings in a more effective way

The EU Queries: A Form of Extra-Judicial Preliminary Reference in the Field of Maladministration?

This Article represents the first comprehensive study of the EU query process, a form of flexible extra-judicial cooperation between the European Ombudsman and the national ombud offices on the interpretation and application of EU law across member states. The way this cooperation is constructed brings imminently to mind the preliminary reference procedure: A national office submits a query within the scope of EU law to the European Ombudsman who, after consultation with the Commission—in the vast majority of cases—provides a reply. Upon closer examination, however, this Article illustrates key differences between the two procedures, while pointing out the added value of the EU query procedure compared to the preliminary reference. More specifically, while the interpretation that is provided is not authoritative or legally binding (among other differences), thanks to the flexibility of this instrument, interpretative guidance is provided at an early stage in case a problem in the interpretation and application of EU law arises, and thus litigation may be avoided. Furthermore, the EU query procedure serves as a reliable source of information for both the European and the national sides. However, this Article also identifies a number of challenges in relation to the transparency of the scheme, its effective functioning, as well as its interplay with other instruments, such as the infringement procedure

Judicial and Extra-Judicial Challenges in the EU Multi- and Cross-Level Administrative Framework

This Special Issue aims at interrogating the judicial and extra-judicial challenges that arise from the EU complex administrative framework, which can be characterized as both multi-level—arising from the vertical cooperation between EU and national authorities—and cross-level—arising from horizontal cooperation between national authorities themselves. It starts from the premise that there may be decisions affecting natural and legal persons which cannot be easily reviewed judicially, whereas in extra-judicial cooperation, the lack of common standards or practices across Member States may undermine the effectiveness of EU policies and objectives. This Special Issue focuses on various mechanisms of horizontal and vertical cooperation, such as regulatory patterns giving rise to transnational administrative acts and mutual recognition systems, case studies of composite procedures in the field of the genetically modified organisms regime and information sharing in asylum policy, as well as multi-level inspection activities for the enforcement of EU law. It further complements the analysis on the judicial challenges arising from those cooperative structures with an examination of extra-judicial avenues of control in the EU administrative framework, namely the “EU queries” process and the cooperation of ombud offices, as well as the audit of the EU budget. This Special Issue reflects on ways to overcome the current challenges of, and seeks to prompt further research on, the multi-layered EU system of administrative cooperation