Decision in case 1086/2017/PMC on the European Commission’s legal interpretation of the one-year period for collecting signatures of support in a European Citizens’ Initiative
Decision - Case 1086/2017/PMC - Opened on Wednesday | 04 October 2017 - Decision on Wednesday | 04 October 2017
The issue in this case was when exactly the one-year period, for collecting signatures of support in a European Citizens’ Initiative (ECI), begins. The European Commission considers that the period begins on the date of registration of an ECI. The complainants explained that this approach disadvantaged them and they argued that the period can start after the date of registration.
The Ombudsman inquired into the issue and found that, as the law stands at present, the Commission was justified in considering that the one-year period for the collection of signatures begins on the date of registration of an ECI. She therefore found no maladministration by the Commission.
However, the Ombudsman is pleased to note that the Commission’s recent proposal for a revised ECI Regulation includes a proposal that ECI organisers should be allowed (within certain limits) to choose the start date for the collection of signatures. This satisfactorily addresses the systemic issue underlying this complaint.
Background to the complaint
1. The complainants are the organisers of the Mum, Dad & Kids European Citizens Initiative (ECI). The Mum, Dad & Kids ECI invites the European Commission to propose legislation that defines the meaning of “marriage as a union between a man and a woman and of family as based on marriage and/or descent for the purpose of EU law”.
2. The complainants were concerned about the starting date for the one-year time-period within which a minimum of 1 million signatures of support must be collected. The Commission was of the view that the starting date is the date of registration of a citizens’ initiative. The complainants pointed out that their online system for the collection of signatures would not be ready at the date of registration and that they would be disadvantaged by the Commission’s approach as a full 12 month period would not be available to them. The complainants argued that the starting date for collecting signatures can be after the date of registration.
3. Not being satisfied with the Commission’s position, the complainants turned to the Ombudsman with their complaint in late June 2017.
4. The Ombudsman opened an inquiry into the allegation that the European Commission wrongly interprets the ECI Regulation to mean that the 12-month period for collecting statements of support for an ECI starts at the date of registration of the ECI.
5. The complainant wished the Commission to accept all the statements of support for the Mum, Dad & Kids ECI collected between April 2016 and April 2017 notwithstanding that the ECI had been registered on 11 December 2015.
6. The Ombudsman's decision takes into account the arguments and views put forward by the parties.
The starting date of the one-year time-period for collecting signatures of support for an ECI
Arguments made by the complainants and the European Commission
7. The complainants point out that the ECI Regulation states that “all statements of support shall be collected after the date of registration of the proposed citizens' initiative and within a period not exceeding 12 months”. According to the complainants, the ECI Regulation does not say that this period must necessarily begin immediately on the day of registration. The complainants referred to the European Parliament's Report on the European Citizens’ Initiative, which calls on the Commission to "reconsider the automatic link between the registration of an ECI and the beginning of the 12-month period within which expressions of support can be collected, so that the organisers of an ECI themselves can decide when they wish to start to collect expressions of support". The complainants argued that Parliament does not consider it necessary to change the wording of the ECI Regulation in this regard, but that Parliament is calling on the Commission to reconsider its interpretation of the relevant provision in the ECI Regulation.
8. Against this background, the complainants had decided not to begin the collection of statements of support until early April 2016 notwithstanding the fact that the Commission had registered their ECI in December 2015. According to the complainants, the collection period should therefore end in early April 2017. They had thus asked the Commission to remove from the Commission’s ECI Register the “misleading information according to which the period for the collection of statements of support for this ECI ends on 11 December 2016”.
9. The complainants also argue that the ECI Regulation does not require, or authorize, the Commission to mention in the ECI Register online the date of registration of an ECI, or the date on which the collection of signatures ends. The ECI Regulation requires the ECI Register to contain the information set out in Annex II only, in particular on the subject matter and objectives of the proposed citizens’ initiative. The ECI Regulation simply provides that “at the end of that period” (that is, at the end of the signature collection period), “the register shall indicate that the period has expired”. Therefore, according to the complainants, the Commission acted without a proper legal basis when it set the end date of the Mum, Dad & Kids ECI in the ECI Register.
10. The Commission is of the view that the relevant provision in the ECI Regulation needs to be read in conjunction with the related Recital of the ECI Regulation, which sets out that: "It is appropriate to ensure that statements of support for a citizens' initiative are collected within a specific time limit […]; that time limit should not be longer than 12 months from the date of registration of the proposed citizens' initiative". It is thus clear, according to the Commission, that the 12-month period for collecting statements of support starts to run as from the date of registration of the proposed initiative. The Commission could not, therefore, modify the deadline for the collection of statements of support for the Mum, Dad & Kids ECI.
11. In reply to the Commission’s reference to the Recital of the ECI Regulation, the complainants argued that when there is an open contradiction between a recital and a substantive provision in a legal act, it is the legal act that prevails over the recital. In addition, they argued, a recital cannot add a normative value to an existing substantive provision. The second part of the recital sets out that the time limit for collecting statements of support “should not be longer than 12 months from the date of registration of the proposed citizens’ initiative”. This, according to the complainants, is problematic because it appears to at least add some normative content to the substantive provision in the ECI Regulation which says simply that “all statements of support shall be collected after the date of registration of the proposed citizens' initiative and within a period not exceeding 12 months”.
12. The complainants also argued that the Commission had previously given a more favourable treatment to other ECI organisers. In July 2012, the Commission informed the public that it had decided to extend, on its own initiative and by several months, the signature collection period for all ECIs that had been registered during the first few weeks after the entry into force of the ECI Regulation. The reason given was precisely the same as the one that the complainants put forward to the Commission: the technical difficulties associated, in particular, with the setting up of an online signature collection system.
The Ombudsman's assessment
13. There are two issues to be considered in this complaint. The first issue is whether the Commission is correct in its legal understanding of what is required by the ECI Regulation. The second issue is, assuming it is correct in its understanding, whether the Commission should exercise discretion in response to the genuine and acknowledged difficulty which faced the complainants.
14. The first issue is a matter of statutory interpretation. The recitals in a Regulation serve the purpose of providing information on the underlying reasons for the substantive provisions. A recital may be used as an aid to interpretation where a substantive provision is not (entirely) clear. It can certainly be argued that the general wording of the relevant substantive provision in the ECI Regulation fails to provide absolute certainty as to when the 12-month period for the collection of signatures should begin. However, when read in conjunction with the relevant recital of the ECI Regulation, it is reasonable to assume, as the Commission does, that the collection period starts from the date of registration. On this reading of the text, the recital does not contradict the substantive provision. It rather complements it, but not to the extent that it can be considered as adding “normative value”. The Ombudsman is satisfied that the legal interpretation adopted by the Commission is in all likelihood correct.
15. This therefore leads to the issue of whether the Commission should have exercised discretion in favour of the ECI organisers. It is widely recognised, including by the Commission, that there is a practical problem affecting ECI organisers faced with the fact that the 12-month collection period begins from the date of the ECI registration. Indeed, Parliament referred to this issue in its Report on the ECI. There, Parliament states that most ECI organisers are left with less than 12 months to collect the required signatures due to the time it takes to set up an online collection system and have it certified by a competent Member State authority. Parliament asked the Commission to “reconsider” its practice (see Paragraph 7).
16. The complainants point out that the Commission exercised discretion in the past in favour of ECI organisers faced with the same difficulties as faced the complainants. It is true that, for the very first ECIs, the Commission took what it referred to as “the political decision to exceptionally accept statements of support” collected beyond the 12-month period. The Commission did this in order to compensate for the delays caused by the organisers’ difficulty in finding appropriate and affordable technical solutions regarding online collection systems and the hosting of these systems. In doing so, the Commission described its “political decision” as going “beyond its obligations under the Regulation”. The question arises, therefore, of whether the Commission should have again gone beyond its obligations in order to facilitate the complainants’ ECI.
17. The exceptional circumstances which existed in the past, and which prompted the Commission’s use of discretion, are no longer applicable. This is because the Commission is now offering, free of charge, both an online signature collection system and a hosting service. It is understandable, and entirely reasonable, that the complainants in this case chose not to make use of the Commission’s collection system and hosting service. But it is important to note that the organisers of the Mum, Dad & Kids ECI did have an option to use the services being made available by the Commission. This is an option that was not available to the ECI organisers who benefitted from the Commission’s exercise of discretion in the past.
18. On the basis of the above, the Ombudsman is satisfied that the Commission was justified in its decision not to use discretion in favour of the Mum, Dad & Kids ECI. It is also relevant to note that, since its exercise of discretion in relation to the very first ECIs registered, no other ECI organisers have had the benefit of that discretion.
19. The subject matter of this complaint is essentially the same as that in a previous complaint dealt with by the Ombudsman. In that case, it was also the complainant’s main concern that ECIs collecting statements of support online do not, in practice, have twelve months to collect signatures. In that case, the Commission explained that, given the cost of hosting the online collection system on its servers, it considered it more cost-effective to verify that a proposed initiative complies with the conditions for registration before signing the hosting agreement. Nonetheless, it makes efforts to facilitate ECI organisers. ECI organisers are asked, directly after they have submitted their request for registration, whether they wish to use the Commission’s hosting facilities. Where the organisers wish to use the Commission’s hosting service, the Commission contacts them immediately it has made its preliminary assessment that the initiative fulfils the registration criteria. At that stage the Commission sends the organisers the hosting agreement to be signed and the documents to be completed for the certification procedure. The Commission then waits until the very last day of the two-month period for registering the ECI before doing so, in order to allow, where possible, for certification of the online collection system before registration. However, most organisers need more time to finalise the certification process.
20. In her decision in the previous case, the Ombudsman found that the Commission's interpretation of the deadline set out in the ECI Regulation (the same as in this case) was reasonable. The Ombudsman trusted that the Commission would properly address the practical problems when revising the ECI Regulation.
21. In mid-July 2017, the Ombudsman made a number of systemic suggestions to the Commission in the context of its public consultation to improve the European Citizens’ Initiative procedure. Among these suggestions was that the 12‐month signature collection period should start on the date when the organisersʹ online collection system is certified or, alternatively, at a date of the ECI organisers’ choosing (within a pre‐set time frame). The Ombudsman is pleased to note that the Commission suggests, in its recently published proposal for a revised ECI Regulation,that organisers should be allowed to choose the starting date of the collection period, provided it is within three months from the registration of the initiative. It is now in the hands of the EU legislature to decide whether to act on the suggested changes.
22. Finally, as to the complainants’ criticism of the Commission mentioning, in the ECI Register online, the date of registration of an ECI and the date on which the collection period ends, it is good administrative practice to do so. The fact that the ECI Regulation does not explicitly provide for this possibility does not mean that it is prohibited.
23. The Ombudsman finds that the Commission did not commit maladministration in this case.
The European Commission did not commit maladministration by holding that, under the current EU rules, the 12-month period for the (online) collection of statements of support for a European Citizens’ Initiative (ECI) begins to run as from - and not at some point after - the date of the registration of the proposed initiative.
The complainants and the European Commission will be informed of this decision.
 Article 5(5) of Regulation 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative, OJ L 65, 11.3.2011, p. 1.
 Article 5(5)
 Article 5(5)
 Article 4(1)
 Article 5(5)
 Recital 17
 In particular in Recital F: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P8-TA-2015-0382+0+DOC+PDF+V0//EN
 Case 402/2014/PMC
 The Ombudsman made these suggestions in the context of her strategic initiative SI/6/2017/KR, available at: https://www.ombudsman.europa.eu/en/cases/case.faces/en/50278/html.bookmark