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Revisiting the Registration of European Citizens’ Initiatives: The Evolution of the Legal Admissibility Test

  • Anastasia KARATZIA (a1)

Abstract

According to the main element of the legal admissibility test of the European Citizens’ Initiative (‘ECI’) set out in Regulation 211/2011, a proposed ECI cannot collect signatures of support if it ‘manifestly falls 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’. This contribution argues that the interpretation and application of the ECI legal admissibility test has developed since the early years of the ECI’s operation, largely due to the CJEU’s intervention in ECI-cases. It analyses the procedural and substantive changes to the test in light of the relevant litigation and the ongoing reform of the ECI’s legal framework. It illustrates that certain contested procedural aspects of the ECI legal admissibility test have been resolved, while the scope of the ECI has been extended to allow Initiatives in the field of international agreements. The article explores the effects of these developments on current and future ECI practice, including the possibility to bring an ECI in the context of the EU-UK Brexit negotiations.

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Footnotes

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School of Law, University of Essex. I would like to thank Professor Kenneth Armstrong, as well as Dr Theodore Konstadinides, Dr Federica Violi, Dr Onyeka Osuji, and the reviewers for their valuable comments and feedback. Part of this research was conducted at the University of Liverpool with the kind support of the School of Law International Visiting Research Fellowship Programme. Any errors are mine.

Footnotes

References

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1 Article 4(2)(b) of Regulation 211/2011 the citizens’ initiative: [2011] OJ L65/1 (hereinafter ‘ECI Regulation’). See Article 4(2) of that Regulation for all the criteria of the legal admissibility test.

2 COM (2018) 157 final, Report from the Commission to the European Parliament and the Council on the application of Regulation (EU) No 211/2011 on the citizens’ initiative, Brussels, 28 March 2018, p 2 (hereinafter ‘2018 ECI Report’).

3 2018 ECI Report, note 2 above, p 3.

4 COM (2017) 482 final, Proposal for a Regulation of the European Parliament and of the Council on the European citizens’ initiative, Brussels, 13 September 2017 (hereinafter ‘New ECI Regulation Proposal’). The Proposal was accompanied by a Commission Staff Working Document explaining the outcome of the review process and the problems identified with the current ECI legal framework: SWD (2017) 294 final, Commission Staff Working Document Accompanying the Document Proposal for a Regulation of the European Parliament and the Council on the European citizens’ initiative, Brussels, 13 September 2017 (hereinafter ‘Commission Staff Working Document’).

5 See, for example, A Karatzia, ‘The European Citizens’ Initiative in Practice: Legal Admissibility Concerns’ (2015) European Law Review 509, and J Organ, ‘Decommissioning Direct Democracy?’ (2014) 10 European Constitutional Law Review 422.

6 The most recent contribution on this topic discusses each judgment individually and was written prior to the ECJ judgment in the case of Anagnostakis, and before the General Court’s judgment in One of Us. See Inglese, M, ‘Recent Trends in European Citizens’ Initiatives: The General Court Case Law and the Commission’s Practice’ (2018) 24(2) European Public Law 335 . Other recent contributions on the ECI which, however, focus mainly on the follow-up stage of the process, include: Vogiatzis, N, ‘Between Discretion and Control: Reflections on the Institutional Position of the Commission within the European Citizens’ Initiative Process’ (2017) 23(3–4) European Law Journal 250 ; Organ, J, ‘EU Citizen Participation, Openness and the European Citizens Initiative: The TTIP Legacy’ (2017) 54 Common Market Law Review 1713 .

7 The CJEU recently ruled, for the first time, in a case challenging the Commission’s discretion to respond to an ECI. See One of Us and Others v Commission, T-561/14, EU:T:2018:210 (hereinafter ‘One of Us’), discussed below in Section III.

8 For examples of campaigns, and information on rejected Initiative proposals, the reader is directed to the dedicated website on the ECI, available at http://ec.europa.eu/citizens-initiative/public/welcome. See also Mendez, F and Mendez, M, ‘The Promise and Perils of Direct Democracy for the European Union’ (2017) 19 Cambridge Yearbook of European Legal Studies 48 .

9 See the ECIs ‘Right2Water’, ‘One of Us’, ‘Stop Vivisection’, and ‘Ban Glyphosate’. A fifth ECI, namely ‘Minority SafePack’, has stated that it has reached the signatures but the validation process is still ongoing. On the follow-up of successfully submitted ECI campaigns, see Karatzia, AThe European Citizens’ Initiative and the EU Institutional Balance: On Realism and the Possibilities of Affecting EU Lawmaking’ (2017) 54(1) Common Market Law Review 177 ; Vogiatzis, note 6 above; Conrad, M et al (eds), Bridging the Gap? Opportunities and Constraints of the European Citizens’ Initiative (Nomos, 2016). For literature from a political side perspective highlighting other positive outcomes of the ECI, such as the formation of political public spheres, see Greenwood, J and Tuokko, KThe European Citizens’ Initiative: The Territorial Extension of a European Political Public Sphere?’ (2017) 18(2) European Politics and Society 166 .

10 European Parliament Resolution of 28 October 2015 on the European Citizens’ Initiative (P8_TA(2015)0382).

11 A summary of the Commission’s review process and all relevant documents are available at http://ec.europa.eu/citizens-initiative/public/regulation-review.

12 New ECI Regulation Proposal, note 4 above, p 6.

13 COM (2017) 482 – C8-0308/2017 – 2017/0220(COD), AFCO Draft Report on the proposal for a regulation of the European Parliament and of the Council on the European citizens’ initiative, 9 March 2018 (hereinafter ‘AFCO Draft Report’); COM (2017) 482 – C8-0308/2017 – 2017/0220(COD), European Parliament Report on the proposal for a regulation of the European Parliament and of the Council on the European citizens’ initiative (hereinafter ‘EP ECI Report 2018’).

14 European Commission, ‘Joint Declaration on the EU’s legislative priorities for 2018–19’, available at https://ec.europa.eu/commission/sites/beta-political/files/joint-declaration-eu-legislative-priorities-2018-19_en.pdf. Point 7 mentions that legislative priority will be given to: ‘Further developing the democratic legitimacy at EU level, by improving the functioning of the European Citizens’ Initiative and by increasing transparency in the financing of political parties’.

15 See, for example, Organ, note 5 above. For an overview of the criticisms, see Karatzia, note 5 above.

16 Annex II ECI Regulation.

17 Article 4(2)(a), 3(2) ECI Regulation.

18 Article 4(2)(b) ECI Regulation.

19 Article 4(2)(c) ECI Regulation.

20 Article 4(2)(d) ECI Regulation.

21 The Commission Decisions refusing registration to proposed Initiatives are available at http://ec.europa.eu/citizens-initiative/public/initiatives/non-registered.

22 Organ, note 5 above, pp 435–39.

23 ECI Campaign, ‘9 Ways to Improve the Commission’s ECI Revision Proposal’, 5 April 2018, available at http://www.citizens-initiative.eu/9-ways-improve-commissions-eci-revision-proposal.

24 Commission Staff Working Document, note 4 above, p 20.

25 See B Costantini, ‘Reply to the Ombudsman’s Own Inquiry on the ECI’, available at http://www.ombudsman.europa.eu/en/press/release.faces/en/53306/html.bookmark; Karatzia, note 5 above.

26 See Efler and Others v Commission, T-754/14, EU:T:2017:323 (hereinafter ‘Efler’); Costantini and Others v Commission, T-44/14, EU:T:2016:223 (hereinafter ‘Costantini’); Minority SafePack v Commission, T-646/13, EU:T:2017:59 (hereinafter ‘Minority SafePack’); Anagnostakis v Commission, T-450/12, EU:T:2015:739 (appealed in Anagnostakis v Commission, C-589/15 P, EU:C:2017:663) (hereinafter ‘Anagnostakis’); HB and Others v Commission, T-361/14, EU:T:2017:252 (appealed in HB and Others v Commission, C-336/17 P, EU:C:2018:74); Izsák and Dabis v Commission, T-529/13, EU:T:2016:282 (hereinafter ‘Izsák and Dabis’, pending judgment on appeal in Izsák and Dabis v Commission, C-420/16 P). It is also worth mentioning the case of Hungary v Commission, Case T50/16, which was a challenge by a Member State against the Commission for the registration of an Initiative proposing the enforcement of the rule of law in the EU. The case was withdrawn. It should also be noted from the outside that this contribution will not deal with the assessment by the CJEU of the actual legal bases suggested by organisers, ie on whether the Commission rightly or wrongly decided that a Treaty provision is not suitable as a legal basis for a specific Initiative.

27 These are the Anagnostakis, HB and Others v Commission, and Izsák and Dabis cases, note 26 above.

28 For a recent article on the ECI case law, see Inglese, note 6 above.

29 See the cases of Minority Safe Pack and Efler, note 26 above.

30 See paras 44–50; see also Minority SafePack, note 26 above, para 32.

31 Anagnostakis ECJ, note 26 above, para 47. See also Recital 10 of the ECI Regulation, which stipulates that the decision on the registration of a proposed Initiative must be in line with the principle of good administration.

32 Anagnostakis ECJ, note 26 above, para 46.

33 See COM (2015) 145 final, Report from the Commission to the European Parliament and the Council on the application of Regulation (EU) No 211/2011 on the citizens’ initiative, Brussels, pp 13–14.

34 Anagnostakis ECJ, note 26 above, para 49.

35 Commission Staff Working Document, note 4 above, p 20.

36 Article 4(2). The pilot version of the platform is available at https://collab.ec.europa.eu/wiki/eci/display/ECI/European+Citizens%27+Initiative+Forum.

37 Minority SafePack, note 26 above, paras 8–12. The organisers had submitted an additional document with specific ECI proposals for the purpose of registering their Initiative.

38 Ibid, paras 13–14.

39 Ibid, para 32. This was confirmed by the ECJ in Anagnostakis ECJ, note 26 above, para 45.

40 This was stressed by the General Court in Izsák and Dabis, Minority SafePack, and by the ECJ in Anagnostakis, note 26 above. In the case of Minority SafePack, for example, the General Court ruled that the Commission’s reply, which only set out three short reasons for the refusal to register the proposal, was manifestly inadequate. According to the Commission’s decision refusing the ECI, firstly, Article 2 TEU was not a legal basis for the adoption of the legal acts suggested by the ECI despite the reference, in that provision, to the rights of persons belonging to minorities as one of the values of the EU. Secondly, Article 3(3) TEU and Article 21(1) of the Charter cannot be used as a legal basis for EU action. Thirdly, although some of the acts requested in the Annex to the ECI could fall within the framework of the Commission’s powers, the ECI Regulation does not provide for the registration of part or parts of a proposed Initiative. It should be noted here that the additional documents submitted by the organisers had proposed twenty legal bases for the proposed actions.

41 Interporc v Commission, C‑41/00 P, EU:C:2003:125, para 55.

42 Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, para 105; Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, para 47.

43 See below Section IV.B.

44 The use of Article 352 TFEU as a legal basis to propose an Initiative is further discussed in Section IV.

45 Costantini, note 26 above, paras 53, 78.

46 Anagnostakis, note 26 above, para 31.

47 See Anagnostakis ECJ, note 26 above, para 38; Anagnostakis, note 26 above, paras 30–31.

48 The ECI Register, note 8 above, allows for a comparison between older and more recent ECI registrations and refusals.

49 Organ, note 5 above, p 432.

50 Minority SafePack, note 26 above, paras 13–14.

51 Ibid, paras 28–29. It is also worth mentioning here that, in the remaining cases contesting the reasons given by the Commission for the rejection of Initiatives, the CJEU found that the Commission had not breached its duty to give reasons.

52 The new Decision of the Commission on the Minority SafePack ECI states that ‘(i)n order to take the necessary measures to comply with the judgment of the General Court, a new Commission Decision on the request for registration of the proposed citizens’ initiative has to be adopted’. This sentence is linked with the part of the judgment whereby the General Court stated that the Commission failed to comply with its obligation to state reasons, and not necessarily with the matter of partial registration. COM (2017) 2200 final, Commission Decision of 29.3.2017 on the proposed citizens’ initiative entitled ‘Minority SafePack – one million signatures for diversity in Europe’, Brussels (hereinafter ‘Commission Decision on Minority SafePack’).

53 Commission Decision on Minority SafePack, note 52 above, Recs 4, 5, and Rec 6, which states: ‘For those reasons, the proposed citizens’ initiative, inasmuch as it aims at proposals from the Commission for legal acts of the Union …’, leaving to the reader the task of connecting the objectives of the proposed Initiative (Recital 4) with the explanation of the areas in which legal acts can be adopted (Recital 5). A new challenge was launched before the General Court (and is currently pending) against the reasoning of this Decision, see Romania v Commission, Case T-391/17. Strikingly, the case is brought from Romania, and not from the organisers as such. At the moment we do not have any further insights as to the reasons for this. It does raise questions, however, concerning the involvement of a Member State—or Member State’s authorities in a case concerning an Initiative brought by a group of private citizens.

54 Commission Decision on Minority SafePack, note 52 above, Recs 9, 12. For other examples of partial registration, see COM (2017) 4725 final, Commission Decision of 4.7.2017 on the proposed citizens’ Initiative ‘Stop TTIP’; and COM (2017) 2001 final, Commission Decision of 22.3.2017 on the proposed citizens’ Initiative ‘EU Citizenship for Europeans’.

55 According to the ECI’s webpage, the organisers collected 1,215,876 signatures. These have not yet been submitted to the Commission. See http://www.minority-safepack.eu.

56 Arts 6(1), (3), (4) New ECI Regulation Proposal, note 4 above.

57 See Art 4(2)(c)–(d) ECI Regulation.

58 Admittedly, it is not very clear why organisers might want to maintain a rejected proposal, which would probably simply be rejected again by the Commission.

59 Art 6(4) New ECI Regulation Proposal.

60 COM (2017) 482 – C8-0308/2017 – 2017/0220(COD), Draft European Parliament Legislative Resolution on the proposal for a regulation of the European Parliament and of the Council on the European citizens’ initiative, Amend 30.

61 Ibid.

62 Amends 29, 31, 32.

63 Karatzia, note 5 above, p 522.

64 Organ, note 5 above.

65 Szeligowska, D and Mincheva, E, ‘The European Citizens’ Initiative – Empowering European Citizens within the Institutional Triangle: A Political and Legal Analysis’ (2012) 13(3) Perspectives on European Politics and Society 270, p 277 .

66 Costantini, note 26 above, para 13.

67 Ibid, para 12.

68 Ibid, paras 14–17.

69 Ibid, para 53.

70 Iszák and Dabis, note 26 above, para 60. The case challenged the refusal to register an Initiative called ‘Cohesion policy for the equality of the regions and sustainability of the regional cultures’.

71 Ibid, para 60–61.

72 Ibid, para 61.

73 Anagnostakis ECJ, note 26 above, para 50: ‘It is only if a proposed ECI, in view of its subject matter and objectives, as reflected in the mandatory and, where appropriate, additional information that has been provided by the organisers pursuant to Annex II to Regulation 211/2011, is manifestly outside the scope of the powers under which the Commission may present a proposal for a legal act of the Union for the purposes of the application of the Treaties, that the Commission is entitled to refuse to register that proposed ECI pursuant to Article 4(2)(b) of that Regulation’.

74 Costantini, note 26 above, para 10.

75 Ibid, para 31.

76 Ibid, para 16.

77 Ibid, para 12.

78 See Dougan, M, ‘What Are We to Make of the Citizens’ Initiative?’ (2011) 48 Common Market Law Review 1807 .

79 Costantini, note 26 above, para 10. The initiative was proposing legislation that would guarantee access to long-term care services. An argument on the misinterpretation of Article 352 TFEU by the Commission was also made in the case of Izsák and Dabis, note 26 above, but was found inadmissible by the General Court.

80 Costantini, note 26 above, para 52. For an engaging discussion on the use of Article 352 TFEU as a legal basis for an ECI, see Inglese, note 6 above.

81 The ‘New Deal 4 Europe’ ECI, which was registered but subsequently withdrawn by its organisers, also suggested Article 352 TFEU as a legal basis. However, since the ECI was not accompanied by a Commission’s Decision, we cannot be sure as to which of all the proposed legal bases was approved by the Commission.

82 This part of the article builds on a previous discussion of the case in A Karatzia ‘New Developments in the Context of the European Citizens’ Initiative: General Court Rules on “Stop TTIP” EU Law Analysis’, 18 May 2018, available at http://eulawanalysis.blogspot.co.uk/2017/05/new-developments-in-context-of-european.html. For commentary arguing that the Stop TTIP judgment is overall a welcome development for the ECI, see M Inglese, ‘Positioning Efler in the Current Narrative of European Citizens’ Initiatives’ (2017) European Forum 1, and for commentary discussing the judgment vis-à-vis the TTIP negotiations, see Fahey, E, ‘European Citizens Initiative “STOP TTIP” Can Proceed Says General Court’ (2017) 8 European Journal of Risk Regulation 787 . For an analysis of the case with regard to transparency and participation in EU external relations, see Organ, note 6 above.

84 The letter sent from the Commission to the organisers is no longer available online. This is because, as will be explained later in the article, the Initiative was eventually registered through a new Commission Decision. For an analysis of the Commission’s decision when it was first issued, see Karatzia, note 5 above.

85 Efler, note 26 above, para 39.

86 Commission v Council, C-114/12, EU:C:2014:2151.

87 Efler, note 26 above, para 35 (‘[T]he concept of a legal act ... cannot ... be understood ... as being limited only to definitive European Union legal acts which produce legal effects vis-à-vis third parties’.).

88 Ibid, paras 21.

89 Ibid, paras 44–45

90 Minority SafePack, note 26 above, para 41.

91 See Organ, note 6 above, p 1714, who explains that ‘the negotiation of international agreements is a political role that has traditionally been the preserve of administrative and governing bodies, with little citizen or even parliamentary deliberative input’. On the opposition by EU citizens to TTIP, see H Pitlik, Who Disapproves of TTIP? Multiple Distrust in Companies and Political Institutions (WIFO, 2016) Working Paper 513

92 M Cremona, ‘Negotiating the Transatlantic Trade and Investment Partnership (TTIP)’ (2015) 52 Common Market Law Review 351; and the Commission’s website on transparency in the context of the TTIP negotiations: http://trade.ec.europa.eu/doclib/press/index.cfm?id=1230.

93 Cremona, note 92 above, p 361.

94 Ibid. On the evolvement of the Commission’s and the Council’s position to transparency in the context of TTIP, questioning the real motives behind this move toward transparency, see Organ, note 6 above, p 1724 onward.

95 On a critical discussion around transparency and legitimacy in EU policy-making, see Curtin, D, ‘Does Transparency Strengthen Legitimacy?’ (2006) 11 Information Polity 109 .

97 US Trade Representative Press Release, ‘EU-US Joint Progress Report on TTIP’, January 2017, available at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2017/january/us-eu-joint-report-t-tip-progress-0.

98 Council Decision (EU) 2017/37 of 28 October 2016 on the signing on behalf of the European Union of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part: (2016) OJ L11/1.

99 Commission Decision on the registration of Stop TTIP, note 54 above.

100 The website of the ECI appears to be idle: https://stop-ttip.org.

101 For the details of these ECIs, see the ECI Register: http://ec.europa.eu/citizens-initiative/public/initiatives/open. For insightful commentary of the ‘European Free Movement Instrument’ ECI in light of Brexit, see O Garner, ‘The European Citizens Initiative on a European Free Movement Mechanism: A New Hope or a False Start for UK Nationals after Brexit?’ (European Law Blog, 23 February 2017).

102 The ECI ‘EU Citizenship for Europeans’ mentions Article 218(3) TFEU in the attempt to propose a disentanglement of EU Citizenship from national citizenship. The Commission’s Decision registering that ECI (see note 54 above) does not refer to the provision. Instead, it registers the ECI only to the extent that it concerns the rights of third-country nationals residing legally in a Member State ‘and in particular conferring certain similar rights to those linked to citizenship of the Union on citizens of a state that has withdrawn from the Union pursuant to Article 50 TEU’.

103 For UK Parliament petitions on Brexit, see https://petition.parliament.uk/petitions?q=brexit&state=open. For the citizens’ assembly see <https://citizensassembly.co.uk/brexit/about.

104 In fact, a UK petition can only be signed by UK nationals or UK residents. For the link between ECI and EU citizenship, see Anagnostakis ECJ, note 26 above, para 24.

106 European Commission, ‘Stakeholder Outreach Concerning Article 50 Negotiations with the United Kingdom’, 13 March 2017, available at https://ec.europa.eu/info/news/stakeholder-outreach-concerning-article-50-negotiations-united-kingdom-2017-mar-13_en.

107 Commission Decision of 25 November 2014 on the publication of information on meetings held between Directors-General of the Commission and organisations or self-employed individuals: [2014] OJ L343/19.

108 LB Garcia, ‘How Could the New Article 11 TEU Contribute to Reduce the EU’s Democratic Malaise?’ in M Dougan, N Nic Schuibhne and E Spaventa, Empowerment and Disempowerment of the European Citizen (Hart, 2012), p 261; C Marxsen, ‘Participatory Democracy in Europe – Article 11 TEU and the Legitimacy of the European Union’ in F Fabbrini et al (eds), What Form of Government for the European Union and the Eurozone? (Hart, 2015), pp 151–69.

109 COM (2001) 428 final, Commission White Paper on European Governance; Saurugger, S, ‘The Social Construction of the Participatory Turn: The Emergence of a Norm in the European Union’ (2010) 49 European Journal of Political Research 471, 475 .

110 See Article 121 on the Transition Period in the ‘Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community’, TF50 (2018) 35 – Commission to EU27, 19 March 2018.

111 Arts 3(1), 7(1) ECI Regulation.

112 On Brexit, see Armstrong, K, Brexit Time: Leaving the EU – Why, How and When? (Cambridge University Press, 2017), and the Common Market Law Review Special Issue on Brexit (2018), Vol 55(2/1).

113 House of Commons European Scrutiny Committee Twenty-Seventh Report of Session 2017–19, pp 27–32.

114 Minority SafePack, note 26 above, paras 36–38, 46–48.

115 Efler, note 26 above, paras 35–45.

116 See Karatzia, note 9 above; Vogiatzis, note 6 above.

117 The full name of the ECI was ‘Ban Glyphosate and Protect People and the Environment from Toxic Pesticides’. According to one of the organisations supporting this campaign, ‘the ECI was backed by a broad, pan-European coalition of 38 organisations from 15 countries, including Corporate Europe Observatory (CEO), Greenpeace, the Health and Environment Alliance (HEAL), Pesticide Action Network Europe (PAN-E), and WeMove.EU’. See Greenpeace Press Release, ‘Commission Rejects Demands of #StopGlyphosate Citizens’ Initiative’, available at http://www.greenpeace.org/eu-unit/en/News/2017/commission-rejects-StopGlyphosate-ECI.

118 COM (2017) 8414 final, Communication from the Commission on the European Citizens’ Initiative ‘Ban glyphosate and protect people and the environment from toxic pesticides’, Strasbourg, 12 December 2017.

119 Interestingly enough, the draft Implementing Regulation was adopted on 12 December 2017, which is the same day as the publication of the Commission’s reply to the ECI.

120 European Parliament resolution of 24 October 2017 on the draft Commission implementing regulation renewing the approval of the active substance glyphosate in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Implementing Regulation (EU) No 540/2011 (D053565-01 – 2017/2904(RSP)).

121 Schütze, R, ‘Organized Change towards an “Ever Closer Union”: Article 308 EC and the Limits to the Community’s Legislative Competence’ (2003) 22(1) Yearbook of European Law 79 .

122 See also Inglese, note 6 above, pp 343–46.

123 Efler, note 26 above, paras 45–48. On the ECI and the principle of institutional balance, see Karatzia, note 9 above.

124 One of Us, note 7 above, paras 116–17.

125 Ibid. See also Costantini, note 26 above, para 53.

126 One of Us, note 7 above, paras 168–70.

127 See above, Section III.A.

128 For an overview of the ECI’s use and the challenges faced by organisers since 2012, see Commission’s 2018 ECI Report, note 2 above, and Commission Staff Working Document on a New ECI Regulation Proposal, note 4 above.

129 Anagnostakis, note 26 above, paras 25–26; Costantini, note 26 above, para 72.

130 Efler, note 26 above, para 45.

131 Anagnostakis ECJ, note 26 above, para 24.

* School of Law, University of Essex. I would like to thank Professor Kenneth Armstrong, as well as Dr Theodore Konstadinides, Dr Federica Violi, Dr Onyeka Osuji, and the reviewers for their valuable comments and feedback. Part of this research was conducted at the University of Liverpool with the kind support of the School of Law International Visiting Research Fellowship Programme. Any errors are mine.

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