A European Referendum? Maybe

All the speakers invited to the symposium (see the programme here took part in the event, including the German Secretary of State Peter Altmaier (President of Europa Union Deutschland). Professor Jacques Ziller chaired the conference together with Paolo Ponzano (Chief Adviser of the European Commission’s President for institutional matters) and drew the final conclusions.

What are the results of the seminar?

The symposium reached the conclusion that new national referenda on a revised Constitutional text are unavoidable in some countries for either legal reasons (Ireland) or political ones (Denmark) if there is a transfer of competences to the EU. Moreover, some governments have taken political commitments to their electorate, which will be difficult not to respect. The state of discussion on a revised Treaty text leads to the conclusion that it will be difficult to avoid new national referenda. However, such national referenda would not really be democratic as 1) a large amount of the electorate might express itself on national issues rather than on the substance of the European text; 2) a possibly negative response might make a majority of the European population responsible for the failure.

Having taken into account these conditions, the participants examined the legal foundations which could allow for a European referendum and came to the conclusion that the most solid basis, namely, Article 22 of the Treaty establishing the European Community (CET), would require not only a unanimous decision by the Council on the Commission’s proposal but also a ratification of all the Member States, and this would be extremely difficult to achieve by the June 2009 elections.

Consequently, the participants considered that a more realistic approach would consist in organising national referenda to be coordinated on a European level. A possible decision in this direction would require a decision by the Member States within the European Council as well as national legislative acts (especially for countries such as Germany where most experts believe that a new law for a constitutional revision would be necessary).

Such a “potential decision” should restrict itself to “harmonising” the date of the consultation (e.g. the week of the European Parliament elections) and the content of the question the voters are supposed to answer, the rest being left to national legislation. If it came to pass that a European ballot organised in all the Member States turned out to be impossible (because of the unanimity rule involved in the decisions taken by the European Council), then it would be conceivable to decide on the holding of national referenda only in the Member States where such referenda have to take place for juridical or political reasons.

How can the project of a European Constitution be modified without distorting the work of the Convention?

It seems obvious to me that the citizens of some States cannot be asked to vote on the same project of constitutional treaty for the second time since it was rejected in the French and Dutch referenda. As a consequence, the writing of a new text seems unavoidable. However, such points should be addressed in a shorter and more readable text, since the old text contained in its 448 articles not only the innovations added to the current treaties, but also the content of the modified current treaties changed only formally in their essential points.

This new text might include no more than 70-80 articles in which all the innovations are taken into account alongside with the institutional mechanisms, the new competences attributed to the Union, which were not rejected in the referendum campaigns so that the citizens may give their opinion on these only.

The remaining parts of the present constitutional treaty, that is, the points of the present treaties but otherwise rewritten, could be the object of a revision protocol concerning the present treaties to be ratified through national Parliaments, since it is only a matter of adjusting technical and legal elements to the current treaties to the new one, which should be submitted to the European citizens.

On the other hand, in order to avoid submitting the old text in a new form and to face the new challenges the EU has to face today, it should be advisable to add to this slimmer text a few points containing new competences which the EU needs to meet the citizens’ worries. I am going to quote these, not necessarily in a priority order: the energy policy, provisions concerning climate changes, criteria for the admission of new Member States, a complementary protocol in matters of social policy, which was required by a large section of the French and Dutch electorates, in spite of the difficulties that the latter might involve in some Member States.

If there should be a European referendum (or a coordination of national referenda), what would happen if the citizens from one or more States were not to approve of the new text? Would a large majority of the Union be blocked by the veto of a minority?

What is certain is that the essential problem hindering the acceptance of a European treaty of a constitutional nature is the unanimity rule. The simplest method would be to replace that rule with the one of the double majority, that is, majority of the States and of the population. Since this aim does not sound realistic at present, as a previous unanimity by the States would be needed in order to modify the rule of the unanimous consensus, then alternative solutions should be sought.

A realistic solution would be to verify the acceptability degree of the text by the majority of the European population through elections. This would not exclude the States in which voters did not give a positive response about the new treaty, but would enable the other States, where the response were positive, to negotiate legitimately with the States not ready yet to make the further step, an agreement which would allow the enactment of the new provisions only among the States having the support of the majority of their citizens.

Such agreement would enable a group of States to form the vanguard of the European political integration, while the others would keep all the rights pertaining the current treaties.