In July 2015, the Greeks were called upon for the first time to take a stance on Europe, but highly specifically on a plan proposed by the Commission, the European Central Bank and the IMF, aiming to rescue the country’s economy and its membership of the euro zone. More than 61% voted “no”. This hastily-organised referendum was challenged by the Council of Europe and a number of capitals and was seen as one element in a negotiation strategy designed first and foremost to back Prime Minister Alexis Tsípras.
A referendum took place in the Netherlands in April 2016, by popular initiative: by more than 60%, voters rejected the Association Agreement between Ukraine and the European Union, which takes on a particularly shocking dimension given recent events. This came about from a difference of opinion between the vox populi and their elected representatives. Following an information campaign and a promise that Ukraine would not be joining the European Union, the Dutch parliament ratified the Agreement in 2017, allowing it to enter into force.
The Hungarian Prime Minister Viktor Orban has held two referendums with an EU angle: a first, in October 2016, on the resettlement of migrants and a second in April 2022, to coincide with the general elections, on the education of minors. In the case of the former, the aim was to justify the flouting of a Council decision and in the second, to secure support for legislation that had come greatly under fire from the rest of the EU, on the grounds that it was a frontal attack on the LBGT communities. Both times, the “no” result hoped for by the government won a massive majority, but as the turnout quorum was not met, the results were invalidated.
Finally, and most recently, the referendum of 1 June allowed the Danes to take position on getting rid of the exemption clause (which they have had for 30 years) on their country’s participation in the common defence policy (66.9% in favor) (EUROPE 12964/17).
There are a number of conclusions we can draw from this overview. The concept of the plebiscite has not altogether vanished from referendum practices (Greece, Hungary). The degree to which the citizens understand the matter at hand varies enormously. If it is about joining the EU, leaving it or whether or not to adopt the euro, everybody gets that. This is not the case with more technical issues and most certainly not when it comes to treaty change.
Posting a copy of the Maastricht treaty through every front door in Denmark in 1992 had the opposite effect to that desired: they voted no! I remember talking to a French farmer who told me that he had voted against the treaty because it would destroy agriculture. The vote against the constitutional treaty, moreover, came down to maintaining the status quo in primary law, the Treaty of Nice, even though the latter was far less democratic than the former – but did anybody truly understand that?
With the possible exception of the Single European Act, every treaty that is put forward for ratification covers many areas and procedures, to the extent that they could be described as “catch-all treaties”, which means that they are illegible to all but a tiny, specialist section of the general public. Even when presented in summary form, they go way above the heads of most people. It is easy to understand the reluctance of several member states to embark on the adventure of a new EU treaty as here and there, ratifications go through a tough referendum stage, even if only consultative in nature, and in every case if they stem from a popular initiative. What it all boils down to is that people are unpredictable and this is a situation in which a unanimous decision of all 27 is required.
Finally, existing constitutions give rise to unequal treatment. While European citizens are all equal according to articles 2 and 9 TEU, some are more equal than others when it comes to referendums. There is no legal option to hold one at national level in Belgium, Cyprus and the member state with the largest population, Germany, where they are permitted only for the adoption of a new constitution or to reorganise the federal structure.
This is the backdrop against which we must evaluate the proposal of the Conference on the Future of Europe. It came from the no. 2 citizens’ panel (European democracy; values and rights, rule of law, security), of which recommendation 18 is worth a read: “We recommend that there should be an EU-wide referendum in exceptional cases on extremely important matters to all European citizens. The referendum should be triggered by the European Parliament and should be legally binding. There should be more direct influence for the citizens on important decisions on EU-wide matters. However, referendums should only be held in exceptional circumstances because the costs are too high to hold them regularly. We are aware that this recommendation might require treaty change and the adaptation of national constitutions”.
Although this proposal did make it through to the final cut of the Conclusions of the Conference, the European Parliament makes no express reference to it in its resolution of 4 May on the follow-up to the conclusions (see EUROPE 12945/7), almost certainly as a matter of tactical caution. But what would constitute these “exceptional cases on extremely important matters”? Its authors were probably thinking at least of the adoption of a new treaty or possibly even a European constitution, which would gain considerable legitimacy from such a measure.
The benefit and feasibility of such a proposal must therefore be assessed carefully. Imagine a new single-matter treaty concerning Health Europe only? Perfect! This is something everybody could understand, particularly when they think back to the European scale of the Covid crisis and the solidarity-based responses to it. But as it is in fact far more likely to be a new “catch-all treaty”, the benefit would melt like snow in the spring and face a massive backlash! It would discredit the very concept of the European referendum.
As for its feasibility, it would first require national constitutions to be amended and for the possibility to be set out in a treaty, with legislation on a parliamentary initiative to trigger a referendum, AND for this treaty to have entered into force following the required 27 national ratifications. Or would the treaty itself provide for its own entry into force only in the event of a positive European referendum, completely replacing the individual national ratifications? But in that case, why would the Parliament have the prerogative of initiative, as it would not, in that case, be the originator of the treaty?
If, on the other hand, we take “exceptional cases” to mean something other than a treaty or a constitution, it would be helpful if the European Parliament were to give us a few examples.
The idea of a referendum held simultaneously throughout the European Union is attractive to anybody who is already a committed democrat, but its likelihood is another matter, given the very many obstacles it is likely to come up against.
Renaud Denuit