Beijing Law Review, 2012, 3, 1-6 Published Online March 2012 ( 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.
Received October 19th, 2011; revised November 13th, 2011; accepted January 9th, 2012.
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:
1Article 46(4)—participatory democracy; modified slightly in the Draft
Constitutional Treaty (DCT) I-47 (4); see Title VI “The Democratic
CRETARIAT. (CONV), 650/03 of 2 April 2003 (Presidency).
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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
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 In the same vein
the Editorial in
45 CMLRev 45
at 934.
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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
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.
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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
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-
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.
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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-
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
[1] R. Forst, “Transnational Justice and Democracy,” 2011.
[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.
[4] S. Wolf, “Euratom, the European Court of Justice and the
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[5] R. Sauter, “EU-Agenda- Se tting und Europäische En ergiepo -
litik: Das ‘EU-Nuklearpaket’,” Österreichische Zeitschrift
für Politikwissenschaft, Vol. 38, No. 4, 2009, pp. 453-
[6] P. Kautracos, “Case Annotations,” Common Market Law
Review, Vol. 41, 2004, pp. 191-208.
[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),”
[9] R. Dehousse, “Constitutional Reform in the European
Community: Are there Alternatives to the Majoritarian
Avenue?” West European Politics, Vol. 18, No. 3, 1995,
pp. 118-136. doi:10.1080/01402389508425094
[10] M. Krajewski, “Legal Framework of a European Citizens’
Initiative for a European Right to Water,” B r em en - Erl ang e n,
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.
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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
Copyright © 2012 SciRes. BLR
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.