The Timeliness of Direct Democracy in the EU—The Example of Nuclear Energy in the EU and the Institutionalisation of the European Citizens’ Initiative in the Lisbon Treaty

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Beijing Law Review, 2012, 3, 1-6

http://dx.doi.org/10.4236/blr.2012.31001 Published Online March 2012 (http://www.SciRP.org/journal/blr) 1

The Timeliness of Direct Democracy in the EU

—The Example of Nuclear Energy in the EU

and the Institutionalisation of the European

Citizens’ Initiative in the Lisbon Treaty*

Christian Joerges

Faculty of Law, Centre of European Law and Politics, University of Bremen, Bremen, Germany.

Email: [email protected]

Received October 19th, 2011; revised November 13th, 2011; accepted January 9th, 2012.

ABSTRACT

The catastrophic nuclear incident in Fukushima in March 2011 has shocked Europe. Its impact was particularly strong

in Germany with its decade-old anti-nuclear movements. Political and technological re-orientations were initiated in

that country without considering at any depth the potential of European law and politics to control or obstruct such

moves. Somewhat paradoxically, the Euratom Treaty of 1957 and also the new Treaty of Lisbon confirm the right of

each Member State to decide upon the use of nuclear energy autonomously. This means that European citizens remain

exposed to the risks of that techno logy until the highly unlikely consen t of all Member States to abstain from its further

use. That constellation poses a dilemma for democracy because it implies that each political decision taken within parts

of the Union exerts external pan-European effects. The article considers the chances for an inclusive democratic process

which would lead to a legitimated European decision. It examines the possibilities offered by the new European Citi-

zens Initiative which the Lisbon Treaty has institutionalized in its Article 12 and concludes that this instrument could

indeed be used to instigate a European-wide debate which may even tually lead to pertinent changes in the Treaties.

Keywords: Euratom Treaty; European Democratic Deficit; European Citizens Initiative; Treaty of Lisbon

1. Introduction

The following section of this paper, which will discuss

the so-called democracy problem of the European project,

might look like an ov erly abstract detour. It is submitted,

however, that such considerations are an indispensable

preparatory step towards an adequate understanding of

the problems of legitimate European decision making in

general as well as an evaluation of the potential of the

recently institutionalized European Citizens Initiative ( ECI )

(Section 2) and then also for a proper interpretation of

the pertinent provision in the Treaty of Lisbon and of

Regulation 211/2011 (Section 4). These comments are

not striving for any comprehensiveness. They will in-

stead focus on the present particularly contested example

of atomic energy (Section 3).

2. The Compensation of Nation State

Failures as Europe’s Vocation

The very idea of the ECI, as it emerged in the Conven-

tion on the Future of Europe1 and was then consolidated

in the Treaty of Lisbon , was understood as an element of

direct democracy which is widely recognized in princip le

in many constitutions. That rational is not wrong. But it

seems by far too defensive. The ECI should not be under-

stood as a strong or weak copy of national models in the

US, Switzerland or elsewhere, which would contribute to

the les sening of Eu rope d emocratic deficit: The E CI should

instead be seen and practiced as an innovative further

step through which the European Union can cure struc-

tural democracy deficits that constitutional nation states

cannot overcome in isolatio n, as well as a step towards a

transnational democratic processes which nation states

*Contribution to the Conference “The European Citizens’Initiative:

How to get it started”, on 29 June 2011, organized by The Green/

European Free Alliance in the EP. The oral proceedings of the con-

ference are available at:

htt

://www.

reenmediabox.eu/archive

2011

06/29/eci/.

1Article 46(4)—participatory democracy; modified slightly in the Draft

Constitutional Treaty (DCT) I-47 (4); see Title VI “The Democratic

Life of the Union”, THE EUROPEAN CONVENTION. THE SE-

CRETARIAT. (CONV), 650/03 of 2 April 2003 (Presidency).

The Timeliness of Direct Democracy in the EU— The Example of Nuclear Energy in the EU and the

Institutionalisation of the European Citizens’ Initiative in the Lisbon Treaty

cannot organise in isolation.

2.1. Democracy Deficits of Nation States

The deficiencies of nation-state democracies stem from

their inability to realize a “normative order in which

those who are subject to binding legal norms should also

be the normative authority that deliberates and decides

about these norms in an active sense in the context of a

practice of justification”.2 This compensatory function of

European law is of general importance. Fiscal policies of

Member States and their external effects provide telling

examples. The external effects of environmental policies

or a lack of them are obvious. The most drastic example

is atomic energy. No single Member State is able to limit

the impact of its policies to those citizens who have le-

gitimated its decisions. A democratic response to this

policy issue is only conceivable at a transnational level.

The organisation of such a response should be a Euro-

pean vocation—and precisely one which would derive its

legitimacy from the compensation of the failures of na-

tional democracies.

2.2. Potential of the New ECI

The ECI has a distinct function. It opens perspectives for

the forming of a European public, for contestation and

deliberation on genuinely European matters as a back-

ground to and inspiration for European decision-making.

This is not to say that it cou ld (or should!) strive for uni-

formity rather “unity in diversity”.

3. The Case of Atomic Energy

Atomic energy provides a perfect illustration for both of

these points.

3.1. Flaws of the European Treaties

The use or non-use of this energy touches upon funda-

mental political and ethical issues. The democratic chal-

lenge here is obvious. No state can ensure that its deci-

sion to use that energy affects only those who have le-

gitimated that policy. It follows that the present institu-

tional configu ration is deeply flawed. This is so fo r three

reasons:

 That Euratom Treaty3 assigns the power to decide

upon the use or non-use of that energy to its signato-

ries. As the ECJ has put it in Case C-29/99, the Eura-

tom Treaty does “not give the Community the com-

petence to regulate the opening and operation of nu-

clear installations”.4 This is irreconcilable with the

European commitments to democracy as they are

solemnly confirmed in the preamble of the Treaty of

Lisbon. Not only the Euratom Treaty—a Treaty

which has not been impacted upon by the many im-

portant general accomplishments of the European

constitutionalisation process—but also the Lisbon

Treaty itself, are, in this regard, defective instruments

that fail to acknowledge the transnational dimension

of atomic energy. While Article 194 TFEU provides

in its section 1 c that the energy policy of the Union

“shall aim, in a spirit of solidarity between Member

States” to promote “the development of new and re-

newable forms of energy”, the next section of that

same Article retracts from that Europeanising step or

insight. It confirms the right of Member States “to

determine the conditions for exploiting its energy re-

sources, its choice between different energy sources

and the general structure of its energy supply”. In

view of the external effects of such decisions, that

right is clearly incompatible with the Unions demo-

cratic commitments.

 There is a tension in Article 194 which will have to

be addressed sooner or later and can, in the light of

the preamble, gradually be resolved with due regard

to European perspectiv es. The Euratom Treaty is of a

different kind. All efforts undertaken in the context of

the European Convention—such as those of Renée

Wagner and the late Neil MacCormick—which

sought to integrate that Treaty into the general Euro-

pean institutional framework5 were in vain. The at-

tempt of five states in Declaration no. 54 to convene a

Conference of the Representatives of the Govern-

ments of the Member States “as soon as possible” has

not yet been realised. The silent agreement not to

agree on any changes can be easily explained. “The

governments of the EU member states usually strongly

disagree when it comes to nuclear energy issues”. It

2The standard formula is used by Rainer Forst [1], indebted to the same

tradition and hence quite similar, e.g. J. Bohman [2] who argues: “The

crucial points at which democratic legitimacy is at stake in the EU

have to do with the institutional distribution of normative powers o

initiative and the institutional capacity of those regularized powersand

initiative and reform to the claims made by communicatively free par-

ticipants in various public spheres”. And shortly thereafter: The core o

democratic constitutionalism is the “capacity to make the basis of de-

mocracy itself the subject of democratic deliberation of citizens “(p.

156). We can safely complement the list by nobody less than Jürgen

Habermas: “Nation-states […] encumber each other with the external

effects of decisions that impinge on third parties who had no say in the

decision-making process . Hence, states cannot escape the need for reg u-

lation and coordination in the expanding horizon of a world society

that is increasingly self-programming, even at the cultural level [...].”

Thus Habermas [3] .

3The Consolidated version in Official Journal C Series (OJ C) 84 o f 3 0

March 2010, 1.

4Case C-29/99 Commission v Council, Judgment of 10 December 2002

(Full Court), [2 00 2] European Cour t Reports (ECR) I-11221, para. 63.

5See their submission to the Convention: Conv 563/03 and for an over-

view http://www.eu-energy.com/euratom-reform.htm. In the same vein

the Editorial in

(

2007

)

45 CMLRev 45

929-940

at 934.

The Timeliness of Direct Democracy in the EU— The Example of Nuclear Energy in the EU and the

Institutionalisation of the European Citizens’ Initiative in the Lisbon Treaty 3

took the pressures of catastrophic events such as

Tschernobyl and the confrontation with Soviet-style

technologies after enlargement to accomplish sub-

stantial progress [4,5]. The democratic problem here

is that the European Union and citizens have no rea-

listic chance to revise the decisions taken more than

half a century ago on grounds which are no longer

valid. Advocate General Jacobs, in his opinion in

Case C-29/99, has addressed that aspect very expli-

citly. He noted that both the political basis, namely

the unanimous trust atomic energy back in 1957, as

well as scientific understanding of its risks, have

changed fundamentally6—and then concludes: “As

Community law stands [the Member States possess]

exclusive (or virtually exclusive) competence over the

technological aspects of nuclear safety”.7 That con-

clusion can be, and has been,8 contested, or inter-

preted in a manner which opens the way for Commu-

nity action.9 Its merit, however, is that it elucidates

the second democratic deficiency of the institutional

framework very clearly. The apparent autonomy of

the Euratom Treaty means that the fundamental de-

mocratic right of citizens to revise the legal regime

under which they live cannot be exercised. European

citizens have no chance to defend themselves against

an exposure to risks which they are not prepared to

accept.

 A third deficiency of the present institutional cons tel-

lation as it is predominantly understood comes to the

fore once one considers the human rights dimensions

of the exposure of citizens to the risks of atomic en-

ergy. The German Constitutio nal Court, in its seminal

Kalkar decision of 1978, was neither prepared to pro-

hibit the use of atomic energy because of the health

risks of that technology, nor was it prepared simply to

rule that citizens must live with a certain Restrisiko

(remaining risk). The Court has added that the legis-

lature shall examine “ob die ursprüngliche Entsche-

idung (für die Kernkraftnutzung)… aufrechtzuerhalten

ist, “wenn die Entscheidungsgrundlage, durch neue,

im Zeitpunkt des Gesetzerlasses noch nicht abzuse-

hende Entwicklungen entscheidend in Frage gestellt

wird” (whether the decisions to use atomic energy can

be defended in the light of unforeseen new develop-

ments).10 This duty of re-evaluation is a procedura-

lised response to the uncertainties of the knowledge

basis of our risk assessment and management. One of

the provisions of the Basic Law to which the Court

referred is Article 2 (2), which has its equivalent in

Article 2 of the Human Rights Charter (right to life)

and on Article 14 Basic Law which has an equivalent

in Article 17 (right to property), and then in Article 2

of the European Convention for the Protection of

Human Rights and Fundamental Freedoms. The

problem is equivalent to that of the ageing of the

premises of the Euratom Treaty.11 What the German

Court has spelled out, however, is a constitutional

duty to revise such legislation. This is a step which is

difficult to integrate into the European system be-

cause that system is not unitary. In the case of the

Euratom Treaty it has explicitly been rejected in the

Protocol No. 2 to the Euratom Treaty.12

3.2. Europe’s Political Deficit and the ECI

In the case of the Euratom Treaty a deficiency becomes

apparent, which enhances the much debated European

democratic deficit. “Political deficit” is a term intro duced

by Renaud Dehousse [9] many years ago. Whereas in

constitutional democracies the law is a product of pro-

cesses which are democratically structured by law, this

interdependence cannot develop in European arenas as

long as the law blocks politic al debate so that the “clai ms

made by communicatively free participants in various

public spheres” cannot be transformed into binding deci-

sions.13 The political deficit is a more general problem of

the European system which stems from the fragmentation

of its still nationally constituted political arenas. Pre-

cisely at this point the ECI opens up new perspectives.

As Recital 8 of Regulation 211/2011 puts it, citizens’

initiatives are meant “to encourage the emergence of

European-wide issues and to foster reflection on those

issues”. The promise and perspective is not the creation

of one unitary public space with uniform outcomes, but

rather the interaction among a diversity of European

publics. To substantiate this understanding of the de-

mocratic functions of the ECI with the help of the just

cited Kalkar-decision of the German Constitutional Court:

There is not one single authority instituted in the Union

which would be legitimated to take a definite decision on

the European-wide validity of atomic energy. What an

ECI may nevertheless promote is a duty for Member

6The Para.s 137 ff.

7Opinion delivered on 13 D e c e mber 2001, para . 132.

8Albeit cautiously, e.g. by P. Kautracos [6]; similarly Ch. Trüe [7],

more straight f orward, albeit via the detour of a right to exit from the

Euratom Treaty, B. Wegener [8]; his position is by now explicitly

accepted, see Article 50 TEU.

9ECJ, para. 89: “Even though the Euratom Treaty does not grant the

Community competence to authorise the construction or operation o

nuclear installations, under Articles 30 to 32 of the Euratom Treaty the

Community possesses legislative competence to establish, for the pur-

ose of health protection, an authorisation system which must be ap-

lied by the Member States. Such a legislative act constitutes a mea-

sure supplementing the basic standards referred to in that article.”

10Entscheidungen des Bundesverfassungsgerichts (German Constitutio nal

Court) (BVerfGE) 48,89.

11Para.s 1 and 3 of the Preamble and Article 1, once expressing a

communis opinio, read today more like a provocation.

12OJ C 306/199 of 17.12.2007.

13See the citation from J. Bohman in note [2] supra.

The Timeliness of Direct Democracy in the EU— The Example of Nuclear Energy in the EU and the

Institutionalisation of the European Citizens’ Initiative in the Lisbon Treaty

States constantly to re-evaluate their atomic commitment

in the light of risk review developments.

4. The ECI in Democratic Perspectives

The core of the foregoing argument can be restated in

generalised manner. The European citizen must be al-

lowed to participate in political processes in which

his/her concerns are debated and which can determine

the binding outco me of such de liberations. This postu late

implies that an ECI must be entitled to address issues of

primary law. It does not imply that democratic processes

in the Union must produce uniform outcomes. These

processes will continue to take place primarily with in a

variety of “demoi”, which should, however, interact in-

tensively and seek to implement th e “principle of sincere

cooperation” as laid down in Article 4 (3) TEU. The con-

test over atomic energy can again be used to illustrate

these points.

4.1. Primary Law and the Euratom Treaty

The short life of the ECI has witnessed an intensive de-

bate on the proper reading of its scope. What does the

request for “a proposal for a legal act of the Union for the

purpose of implementing the Treaties” encompass?14

There can be little doubt in my view that the “implemen-

tation of the Treaties” includes the promotion of the

commitments and objectives spelled out therein. To cite

at least one explicit confirmation: Article 48 (2) provides

as an “Ordinary revision procedure” that the “govern-

ment of any Member State, the European Parliament or

the Commission may submit to the Council proposals for

the amendment of the Treaties. These proposals may,

inter alia, serve either to increase or to reduce the com-

petences conferred on the Union in the Treaties. These

proposals shall be submitted to the European Council by

the Council and the national Parliaments shall be noti-

fied”. Article 106a (1) Euratom Treaty acknowledges

these commitments.

The more interesting issue is whether an ECI may re-

quest a revision of the Atomic Energy Treaty and follow

the example of Northrine-Westphalia. That Land has on

18 May 2011 opted for a resolution of the German

Bundesrat (Federal Council of the German Länder)

which should initiate a ca mpaign for European-wide exit

from atomic energy.15 The requested resolution aims at

nothing less than the transformation of Euratom into an

institution dedicated to the promotion of renewable en-

ergy, conceivable as a Commission initiative?

4.2. Primary Law and the Euratom Treaty

What seems too extensive an interpretation in particular

to the Europe an Commission was once suggested by that

very actor. The Commission had indeed—in its “Pene-

lope Proposal” which was submitted in the con text of the

Convention Process—suggested a number of substantial

changes to the Euratom Treaty. That proposal included a

request to strengthen the role of the Parliament by giving

it the power to adopt, together with the Council, “laws”

for basic standards, whereas at present such instruments

are outside the de cis ion- making process.16

We need to add, however, that the “Penelope Pro-

posal” was submitted in another context and cannot be

invoked in the interpretation of Article 11 (4) TEU and

Article 4 (2) of Regulation 211/2011.

There are nevertheless a number of positive reasons

militating in favour of an extensive reading of the scope

of the ECI and rejection of the claim that a provision like

Article 106a (3) Euratom Treaty may, so-to-speak, uni-

laterally determine that the “provisions of the Treaty on

European Union and of the Treaty on the Functioning of

the European Union shall not derogate from the provi-

sions of this Treaty.”

While it is communis opinion that European law is

bound to take continuo usly innovativ e steps so as to cope

with the dynamics of the integration process, the Eu-

ratom Treaty of 1957 gets presented as if existed in a

political and legal vacuum. This is an inadequate view

for a number of reasons:

 Despite of autonomy, the Treaties, the Euratom

Treaty included, form one legal order. The thesis of

lex specialis which accords supremacy to Euratom is

far too rigid. Union objectives, such as those en-

shrined in Article 2 EG, now 3 TEU, also impact

upon Euratom.17

 Euratom is also not exempted from Human Rights

commitments. The Charter of Fundamental Rights of

the European Union states in Article 6(3): “Funda-

mental rights, as guaranteed by the European Con-

vention for the Protection of Human Rights and Fun-

damental Freedoms and as they result from the con-

stitutional traditions common to the Member States,

shall constitute general principles of the Union’s

law”.

 The commitments in Articles 1 and 2 Euratom Treaty

to Atomic energy cannot suspend the opening of al-

ternative options in Article 194 TFEU.18

4.3. Acknowledging Tensions

Tensions and conflicts between Treaties are a very ge-

neral phenomenon. This is common knowledge in inter-

16See http://www.eu-energy.com/Pages%20from%20penelope_en.pdf.

17Out of the contributions by Ch. Trüe see in particular [7], p. 780.

18Contrary prominently, albeit in another decade, U. Di Fabio [11].

14The issue is comprehensively discussed in a study commissioned by

the EPSU: M. Krajewski [10].

15BR-Drucksache 276/11.

The Timeliness of Direct Democracy in the EU— The Example of Nuclear Energy in the EU and the

Institutionalisation of the European Citizens’ Initiative in the Lisbon Treaty 5

national law: it is also true for Europ ean law. There is no

such thing as some genuine, self-defined or in-built su-

premacy of the Euratom Treaty, see [12,13]. To acknow-

ledge tensions and conflicts does not suspend the com-

mitment to the rule of law; they point to the domain of

conflicts of laws which is dedicated to the handling of

such tensions. To be sure, the notion of conflict of laws is

not being used in the pertinent legal texts. But we find

there helpful instructions and orienting principles:

 Article 3 TFEU provides:

1) The Union shall have an institutional framework

which shall aim to promote its values, adv ance its object-

tives, serve its interests, those of its citizens and tho se of

the Member States, and ensure the consistency, effect-

tiveness and contin uity of its policies and actions.

2) Each institution shall act within the limits of the

powers conferred on it in th e Treaties, and in conformity

with the procedures, conditions and objectives set out in

them. The institutions shall practice mutual sincere co-

operation.

 The commitment to democracy and human rights

were mentioned above.

It is important to realise that the response to a conflict

need not to be found in a uniform answer. “Unity in di-

versity”, the fortunate motto of the otherwise not so for-

tunate Draft Constitutional Treaty points in the proper

direction. To put it in very mundane terms: The French

are not entitled to expose the Germans to the risks of

nuclear energy. The same is true vice versa: The Ger-

mans cannot impose their Energiewende on the rest of

Europe. Are we back at the beginning of our delibera-

tions? Is the European democratic deficit at the end of

the day purely an irresolvab le dilemma?

4.4. The Primacy of Politics and the Search for

Mediating Initiatives

Tertium datur. Atomic energy confronts us with funda-

mental difficulties. It took the Germans decades of po-

litical contestation before they concluded “after Foku-

shima” that their Ausstieg is politically opportune, eco-

nomically and technologically feasible. There are many

reasons for other societies not to follow that example. As

I have argued above, atomic energy is a problem which

should not be delegated to expert circles, intergovern-

mental bargaining or the law, not even to the European

Court of Justice.19 Atomic Energy policy needs to be

embedded in legitimating political processes. Such pro-

cesses are unlikely to end in European-wide uniformity.

They may, however, promote mutual understanding and

the readiness to take serious concerns of neighbouring

societies neighbouring societies seriously. This is why

the request of the Land Northrine-Westphalia for strong

safety standards deserves recognition . It seems to me that

the European Commission has understood these lessons.

This I infer from the recent proposal for a Directive on

energy efficiency20 and the Communication on renewable

energy.21 All that are not to say that ECIs which seek to

promote such innovative moves would have become su-

perfluous. But it is nice to conclude with an optimistic

outlook.

REFERENCES

[1] R. Forst, “Transnational Justice and Democracy,” 2011.

http.//ww.reconproject.eu/main.php/RECON_wp_1112.p

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[2] J. Bohman, “Democracy across Borders: From Dêmos to

Dêmoi,” MIT Press, Cambridge, 2007, pp. 135-152.

[3] J. Habermas, “Does the Constitutionalization of Interna-

tional Law Still Have a Chance?” In: J. Habermas, Ed.,

The Divided West, Polity Press, Cambridge, 2007, pp.

113-193.

[4] S. Wolf, “Euratom, the European Court of Justice and the

Limits of Nuclear Integration in Europe,” German Law

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[5] R. Sauter, “EU-Agenda- Se tting und Europäische En ergiepo -

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[6] P. Kautracos, “Case Annotations,” Common Market Law

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[7] C. Trüe, “EU-Kompetenzen für Energierecht, Gesundheitss-

chutz und Umweltschutz nach dem Verfassungsentwurf,”

Juristenzeitung, Vol. 59, No. 15-16, 2004, pp. 779-791.

[8] B. Wegener, “Die Kündigung des Vertrages zur Gründ-

ung der Europäischen Atomgemeinschaft (EURATOM),”

2007.

http://www.gruene-bundestag.de/cms/archiv/dokbin/170/

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[9] R. Dehousse, “Constitutional Reform in the European

Community: Are there Alternatives to the Majoritarian

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pp. 118-136. doi:10.1080/01402389508425094

[10] M. Krajewski, “Legal Framework of a European Citizens’

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on file with author, 2010.

[11] U. Di Fabio, “Der Ausstieg aus der Wirtschaftlichen

Nutzung der Kernenergie: Europarechtliche und Verfas-

sungsrechtliche Vorgaben,” Carl Heymanns Verlag, Co-

logne, 1999.

[12] Th. F. Cusack, “A Tale of Two Treaties: An Assessment of

the Euratom Treaty in Relation to the EC Treaty,” Common

19See my critique of the Temelín judgment, Case C-115/08, Oberö-

sterreich v. ČEZ as, [ECR] 2009 I-10265: Joerges [14]; surprisingly

similar S. Wolf [4].

20See European Commission Comm unication (C O M) (2011) 370 final

of 22.6.2011.

21COM (2011) 31 final of 31. 1.2011.

The Timeliness of Direct Democracy in the EU— The Example of Nuclear Energy in the EU and the

Institutionalisation of the European Citizens’ Initiative in the Lisbon Treaty

Market Law Review, Vol . 40, 2 0 0 3 , pp. 117 - 142.

[13] S. Wolf, “Zur Zukunft des Euratom-Vertrags,” integra-

tion, Vol. 29, No. 4, 2006, pp. 297-302.

[14] C. Joerges, “Unity in Diversity as Europe’s Vocation and

Conflitcs Law as Europe’s Constitutional Form,” 2010.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id?=1723

249.