Questioning participation rights under Lisbon

Article 11 TEU poses new challenges to participation practices in EU governance. To a large extent, it merely provides formal constitutional recognition to current practices. At the same time, it raises considerably the normative expectations with regard to participation, since the democratic legitimacy of the Union rests now explicitly for the first time on the direct links between citizens and the EU institutions. This paper will focus on the possible legal and political consequences of the first three paragraphs of Article 11 TEU, which have featured less prominently than the European citizens’ initiative in the political and academic debate on participation. It will be argued that both political and legal changes will need to occur to uphold the promises of participatory democracy these norms entail. The improvement of institutional practices through a non-legal approach is certainly one path to give effect to Article 11 TEU. However, a decade of consultation practices under the Commission minimum standards defined in 2002 has revealed the shortcomings of such an approach. Furthermore, even if participation rights are not a necessary consequence from Article 11 TEU, not taking a legal approach amounts to denying procedural protection to persons affected by EU regulatory acts and this is incoherent with the participatory ideals conveyed by Article 11 TEU. Other provisions of the Lisbon Treaty – Article 15(1), Article 263(1), (4), Articles 290, 291 and 298 TFEU – advise at least the debate on what should be the role of law regarding participation procedures and participation rights.