Impact of the Coronavirus on ECI Procedures – Will the Commission Extend Deadlines?

The coronavirus has completely reversed not only our everyday lives, but several European Union proceedings as well. The pandemic significantly affects the two Hungarian-related European Citizens’ Initiatives (ECIs) for the protection and promotion of rights and interests of national minorities, the Cohesion Policy Initiative and the Minority SafePack Initiative (MSPI). While in the former the collection of signatures is still ongoing, the latter, after successfully gathering the necessary statements of support, is currently waiting for the response of EU institutions. The Commission has not yet taken decisions in response to the coronavirus in relation to the ECI procedures. In terms of the above mentioned ECIs it would mean, on the one hand, the extension of the signature collection period and, on the other hand, the extension of the period of examination of the proposals by the Commission. This analysis attempts to predict these decisions.

Cohesion Policy Initiative

In 2013, the European Commission rejected the registration of the Cohesion Policy for the Equality of the Regions and the Sustainability of the Regional Cultures ECI on the grounds that the proposal falls outside the scope of the EU (the initiative is often referred to as ‘ECI on national minority regions’ as it calls upon the cohesion policy of the EU to pay special attention to regions with national, ethnic, cultural, religious or linguistic characteristics).The organizers challenged the Commission’s decision at the Court of Justice of the European Union. While the first-instance judgment of the General Court dismissed the plaintiffs’ claims in its entirety, the second-instance judgment of the Court of Justice, published on 7 March 2020, found that the Commission had erred in law when it refused to register the Cohesion Policy Initiative. Accordingly, the Commission registered the initiative. The one-year-long signature collection period started on 7 May 2019, thus, the deadline to collect at least one million signature from at least seven Member States was 7 May 2020. However, due to the restrictions made by the Member States in course of the fight against the coronavirus pandemic, the organizers requested the Commission to extend the period for the collection of statements of support. The ECI dedicated NGO The ECI Campaign has also appealed to the Commission to extend the deadline for ongoing ECIs due to the coronavirus.

Although the extension of the signature collection period is a sensible and fair request, the problem lies in the lack of clear legal basis for the extension. However, the extension of the collection period can be justified on several grounds:

a)      Achieving the objective of the ECI: According to the Regulation on the citizens’ initiative (‘ECI Regulation’), this tool of EU participatory democracy contributes to enhancing the democratic functioning of the Union through the participation of citizens in its democratic and political life. However, restrictions applied by Member States make this participation impossible. Although the initiative can be signed online, supporting an ECI on paper form is an essential element, as a significant part of society can support initiatives only through this traditional way.

b)      Vis maior: In our view, the emergency caused by the pandemic resulted vis maior (force majeure). Although the concept of ‘force majeure’ is not defined in EU law, according to the Court’s settled case-law, it shall refer to unusual and unforeseeable circumstances which were beyond the control of the party by whom it is pleaded and the consequences of which could not have been avoided even if all due care had been exercised, while its meaning must be determined by reference to the legal context in which it is to operate.[1]

c)      Previous precedents: Due to initial problems with the online signature collection system, the first eight registered ECIs were granted extensions to their signature collection period and were given a new deadline. As a result, for example, the collection period of ECIs Right2Water and Fraternité 2020 were prolonged by almost six months.[2]

Therefore, we believe that the Commission will extend the signature collection period for both the Cohesion Policy Initiative and other ECIs currently being in the signature collection phase. However, it is questionable whether the Commission will decide on the prolongation of the periods individually or it will apply a general rule to set new deadlines for signature collection. Given that the signature collection deadline of the Cohesion Policy Initiative is approaching (7 May 2020), we believe that the Commission will decide on the prolongation before that time. In two other ECIs[3] the signature collection would also come to an end in early May. However, it might be a matter of concern that the signature collection of two ECIs[4] ended in early April without any extension of the signature collection period due to the coronavirus.

Minority SafePack Initiative

In 2013, just like in case of the Cohesion Policy Initiative, the Commission refused to register the Minority SafePack – one million signatures for diversity in Europe ECI (Minority SafePack Initiative, MSPI) on the basis that it falls manifestly outside the framework of the Commission’s powers to submit a proposal for a legal act. The organizers challenged the Commission’s decision at the General Court and won the lawsuit in early 2017. Consequently, the Commission partially registered the MSPI. The signature collection was a huge success of national minorities in the EU as the initiative was signed by 1.32 million EU citizens by 3 April 2018 (the official result was 1.128.385 verified statement of support, reaching the minimum threshold in 11 Member States). However, the MSPI was submitted to the Commission only one and a half years later, in January 2020. On 5 February 2020, the representatives of the European Commission met the MSPI delegation to allow them to explain in detail the objectives of the initiative. The legislative proposals elaborated by the legal experts of the MSPI were also presented to the Commission.

Now the initiative is in its follow-up phase which requires the action of EU institutions. Under Article 11 (4) TEU, the Commission shall not be forced to submit a proposal for a legal act of the Union. However, pursuant to the ECI regulation, the Commission, within six months of the submission of the initiative and after its public hearing in the European Parliament, shall set out in a communication its legal and political conclusions on the proposed ECI, the action it intends to take, if any. The European Parliament also have certain duties and rights in the follow-up phase of a successful ECI. Within three months of the submission of the initiative, the group of organisers shall be given the opportunity to present the initiative at a public hearing held by the European Parliament. The Parliament shall also hold a debate on the given ECI following the public hearing.

However, this scenario has been significantly subverted and will probably be subverted by the coronavirus pandemic. The European Parliament suspended or deleted virtually all of its external events from the beginning of March. As a result, the public hearing on the MSPI, scheduled for 23 March, as well as the plenary debate, scheduled for 22 April, has been postponed. It is still not yet clear when the public hearing and plenary debate of the MSPI will take place in the European Parliament, but it is possible that this will only take place during the autumn.

The emergency situation will affect the Commission’s communication as well. As earlier emphasized, the provisions on the communication of the Commission on the merits of the initiative set out two conjunctive conditions which seem to contradict to each other in this specific case. Under the first condition, the Commission shall publish its communication by 10 July 2020, however, the public hearing on MSPI might not happen before that date due to the restrictions of the European Parliament applied in course of the fight against the coronavirus, which precludes the fulfilment of the second condition. However, if the public hearing takes place later, and the Commission waits for it, which precludes the fulfilment of the first condition.

In our view, the Commission will extend the deadline for publishing its communication. The legal basis for this is provided by Recital 28 of the ECI Regulation. Under this Recital, the Commission should examine initiatives in accordance with the general principles of good administration as set out in Article 41 of the Charter of Fundamental Rights of the EU (pursuant to this Article, every person has the right to have his or her affairs handled fairly and within a reasonable time by the institutions of the Union). This provision provides a legitimate legal basis for the Commission to publish its communication on the MSPI following the public hearing of the initiative in the European Parliament. Presumably, the organizers would have no particular objection to this. The Federal Union of European Nationalities (FUEN), as the European-wide organizer of the MSPI, has been very actively lobbying for the initiative among European political actors and Member State governments since the successful completion of the signature collection. The prolongation of the examination period by the Commission would mean new opportunities to increase political support for this initiative in the European political arena. In this case, however, it becomes uncertain when the initiative will come to an end.

28-04-2020 – Balázs Tárnok