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The Promise and Perils of Direct Democracy for the European Union

Published online by Cambridge University Press:  30 October 2017

Fernando MENDEZ
Affiliation:
University of Zurich
Mario MENDEZ
Affiliation:
Queen Mary University of London

Abstract

Direct democracy exhibits both promise and peril for the EU. The referendum has been deployed by Member States in a way that has shaped and will continue to shape the EU’s geographical boundaries, its constitutional evolution, and salient EU policy matters. The referendum’s promise is to accord a high degree of legitimacy to a political decision, but that promise varies across different types of EU referendum. Their peril for the EU has become increasingly apparent as they have proliferated in number and type and with a growing failure rate. In contrast, the European Citizens’ Initiative is intended to harness the promise of direct democracy for the EU. But current practice raises the question of whether the failure to satisfy the ambitions placed on this novel instrument could, paradoxically, become a source of peril. Contrary to an increasingly pessimistic narrative, it is concluded that practice under the ECI exhibits promise and that the future of this instruments appears bright.

Type
Articles
Copyright
© Centre for European Legal Studies, Faculty of Law, University of Cambridge 

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References

1 On sovereignty referendums see Mendez, F and Germann, M, ‘Contested Sovereignty: Mapping Referendums on Sovereignty over Time and Space’ (2016) 46 British Journal of Political Science 1 CrossRefGoogle Scholar.

2 See further on the accelerating EU referendum failure rate, Mendez, F and Mendez, M (eds) Referendums on EU Matters (European Parliament, 2017)Google Scholar, ch 3.

3 The term ‘permissive consensus’ was deployed by Lindberg and Scheingold to refer to the state of public opinion on European integration: Lindberg, L and Scheingold, S, Europe’s Would-be Polity (Prentice Hall, 1970)Google Scholar.

4 On the constraining dissensus see Hooghe, L and Marks, G, ‘A Postfunctionalist Theory of European Integration: From Permissive Consensus to Constraining Dissensus’ (2009) 39(1) British Journal of Political Science 1 CrossRefGoogle Scholar.

5 To cite only a few examples since 2016: Auer, A, ‘The People Have Spoken: Abide? A Critical View of the EU’s Dramatic Referendum (In)experience’ (2016) 12(3) European Constitutional Law Review 397, p 406 CrossRefGoogle Scholar; Mendez and Mendez, see note 2 above; Qvortrup, M, ‘Referendums on Membership and European Integration 1972–2015’ (2016) 87 Political Quarterly 61 CrossRefGoogle Scholar.

6 Prior to the Austrian variant, an alternative initiative model which can generate a referendum where the legislature rejects the proposed initiative was introduced in some US States and the 1919 Weimar Constitution: see Cuesta-López, V, Participación Directa e Iniciativa Legislativa del Ciudadano en Democracia Constitucional (Thomson, 2008)Google Scholar, ch 1.

7 See Direct Democracy: The International IDEA Handbook (International Institute for Democracy and Electoral Assistance, 2008), ch 4.

8 See eg Setälä, M and Schiller, T (eds) Citizens’ Initiatives in Europe (Palgrave Macmillan, 2012)CrossRefGoogle Scholar; OJ Suárez Antón, La Iniciativa de Agenda en América Latina y La Unión Europea (PhD thesis, Universidad Complutense de Madrid, 2017).

9 We exclude a fourth category of referendums held on European integration by third countries that are neither EU Member States nor candidate countries. See briefly on these referendums Mendez and Mendez, note 2 above.

10 We include Romania in the accession referendum category, but the referendum was actually on a substantial constitutional amendment to accommodate EU accession.

11 The Treaty of Rome stipulated that ratification was to be ‘in accordance with their respective constitutional requirements’ (Art 247).

12 Cyprus held its first national level referendum a week before it joined the EU.

13 Auer, A, ‘National Referendums in the Process of European Integration: Time for Change’ in A Albi and J Ziller (eds), The European Constitution and National Constitutions: Ratifications and Beyond (Kluwer, 2007), pp 269270 Google Scholar.

14 Spain and Luxembourg only held referendums on the Constitutional Treaty.

15 Early post-Brexit referendum polling has seen increased support for EU membership: see de Vries, C and Hoffman, I, Supportive but wary: How Europeans feel about the EU 60 years after the Treaty of Rome (Bertelsmann Stiftung, 2017)Google Scholar eupinions Policy Paper 2017/1.

16 Athanassiou, P and Laulhé Shaelou, S, ‘EU Accession from Within? – An Introduction’ (2014) 33 Yearbook of European Law 335 CrossRefGoogle Scholar.

17 On the Scottish referendum, see Tierney, S, ‘The Scottish Independence Referendum: A Model of Good Practice in Direct Democracy?’ in S Ruth et al (eds) Let the people rule? Direct Democracy in the Twenty-First Century (ECPR, 2016)Google Scholar.

18 For the former view, see S Douglas-Scott, ‘How easily could an independent Scotland join the EU?’ (2014) Oxford Legal Studies Research Paper 46/2014. For the latter view, see Armstrong, KA, ‘After “Ever Closer Union”: Negotiating Withdrawal, Secession, and Accession’ (2014) 37 Fordham International Law Journal 119 Google Scholar; Closa, C, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12(2) European Constitutional Law Review 240 .

19 See Armstrong, KA, Brexit Time – Leaving the EU: Why, How and When? (Cambridge University Press, 2017)CrossRefGoogle Scholar, ch 13.

20 Use of constitutional challenges, the parliamentary process, and bottom-up mechanisms to try and generate such referendums have been a regular and growing occurrence across many Member States: see Mendez, F et al, Referendums and the European Union (Cambridge University Press, 2014)CrossRefGoogle Scholar, ch 2.

21 Referendums were not required nor held on Nice and Lisbon because they were found by the Ministry of Justice not to fall within the transfer of powers clause, see Mendez et al, ibid, pp 53–4.

22 On the end of the permissive consensus see Hix, S and Høyland, B, The Political System of the European Union, 3rd ed (Palgrave Macmillan, 2011), pp 107110 CrossRefGoogle Scholar.

23 Crotty v An Taoiseach [1987] 1 IR 713. On which see Barrett, G, ‘Building a Swiss Chalet in an Irish Legal Landscape? Referendums on European Union Treaties in Ireland and the Impact of Supreme Court Jurisprudence’ (2009) 5 European Constitutional Law Review 32 CrossRefGoogle Scholar.

24 The small-scale Art 136 TFEU revision post-Lisbon (see further note 30 below) saw the Irish government follow the Attorney General’s advice that it did not require a constitutional amendment referendum.

25 On the second referendum phenomonen, see de Búrca, G, ‘If at First You Don’t Succeed: Vote, Vote Again: Analyzing the Second Referendum Phenomenon in EU Treaty Change’ (2011) 33 (5) Fordham International Law Journal 1472 Google Scholar.

26 Morel contrasts the democratic value of politically obligatory referendums with those that are called to purely serve the partisan interests of a party leader or a President but are wholly unnecessary: Morel, L, ‘The Rise of “Politically Obligatory” Referendums: The 2005 French Referendum in Comparative Perspective’ (2007) 30(5) West European Politics 1041 CrossRefGoogle Scholar.

27 See also Armstrong note 19 above, pp 270–271.

28 Memorably referred to as the ‘tyranny of the minority’: Peters, A, ‘Referendums on the Constitutional Treaty 2004: A Citizens’ Voice?’ in D Curtin et al (eds) The EU Constitution: The Best Way Forward? (TMC Asser Press, 2005)Google Scholar.

29 See Fig 2 below.

30 See Fabbrini, F, Economic Governance in Europe (Oxford University Press, 2016)CrossRefGoogle Scholar. The minor treaty revision was the addition of two short sentences to Art 136 TFEU purporting to authorise the creation of a permanent stability mechanism to safeguard the Euro area. The European Stability Mechanism Treaty actually entered into force prior to the Art 136 revision and the Pringle ruling indicated that the revision had not been necessary: see Pringle, C-370/12, ECLI:EU:C:2012:756.

31 Art 88-5 French Constitution (1958).

32 Bottom-up direct democracy instruments have been used to try and generate a Turkish enlargement referendum in at least two Member States: in relation to Austria see IDEA, note 7 above, pp 87–88; in relation to Bulgaria, see Mendez et al note 20 above, pp 39–40.

33 Increased transitional measures for the acceding country is admittedly one possibility.

34 Auer, note 5 above, p 406.

35 Shaw presciently observed, given the UK withdrawal referendum, that this was profoundly problematic and can give rise to resentment: Shaw, J, ‘Europe’s Constitutional Future’ (2005) Public Law 132 Google Scholar.

36 Hillion, C, The Creeping Nationalisation of the EU Enlargement Policy (Swedish Institute for European Policy Studies, 2010)Google Scholar Report 6.

37 Denmark’s referendum was constitutionally obligatory when a five-sixths parliamentary majority was not obtained, though it was already politically obligatory given the popularly approved Danish opt-outs from the single currency via their second Maastricht referendum. Denmark’s opt-outs account for another policy referendum, when in 2015 the voters rejected an arrangement allowing them to opt-in to Justice and Home Affairs measures (see further D Beach, ‘A tale of two referendums – the contrasts between low and high salience referendums in Denmark’ in Mendez and Mendez, note 2 above).

38 For detailed discussion, see V Triga and V Manavopoulos, ‘The Greek bailout referendum of 2015’, in Mendez and Mendez note 2 above.

39 In some cases there are mandatory ratifications for such treaties. Thus, each of the four largest Eurozone States would have constituted veto points to the entry into force of the European Stability Mechanism Treaty, but both Italy and Germany would need a constitutional amendment to hold such a referendum, and although both France and Spain had previously held EU referendums no such referendums were considered. The Unified Patent Court Agreement has a mandatory requirement for French, German and UK ratification. The Fiscal Compact Treaty required ratification by 12 Eurozone States.

40 The Irish government’s legislative programme from June 2016 also foresaw a Unified Patent Court referendum.

41 The 30% threshold in the Dutch Referendum Act encouraged abstention.

42 For more details see J Van den Akker, ‘The Dutch EU referendums on the Constitutional Treaty (2005) and the EU-Ukraine Association Agreement (2016)’ in Mendez and Mendez, note 2 above.

43 Council Decision (EU) No 2015/1601 [2015] OJ L119/80.

44 For detailed discussion see Z T Pállinger, ‘The Hungarian Migrant Quota Referendum of 2016 in the Context of Hungarian Direct Democracy’ in Mendez and Mendez note 2 above.

45 It was clear early on from a response to a parliamentary question that the Commission was monitoring the situation: E-001991/2016, 12 May 2016.

46 On the challenges in Hungary, see Pállinger note 44 above.

47 Including social theorists ( Habermas, J, ‘A constitution for Europe?’ (2001) 11 New Left Review 5)Google Scholar, political philosophers ( Cheneval, F, ‘“Caminante, no hay camino, se hace camino al andar”: EU Citizenship, Direct Democracy and Treaty Ratification’ (2007) 13 (5) European Law Journal 647)CrossRefGoogle Scholar, political scientists ( Rose, R, Representing Europeans (Oxford University Press, 2013)CrossRefGoogle Scholar), legal scholars (Auer, notes 5 and 13 above), and public choice economists ( Frey, B, ‘A Directly Democratic and Federal Europe’ (1996) 7(4) Constitutional Political Economy 267)CrossRefGoogle Scholar.

48 Hobolt, S, Europe in Question: Referendums on European Integration (Oxford University Press, 2009), 245 CrossRefGoogle Scholar.

49 See further on such proposals Mendez and Mendez note 2 above, p 68 ff.

50 Cheneval note 47 above.

51 Existing comparative analysis of constitutional amendment difficulty has not included the EU. For a brief overview of the literature, see Albert, RThe Difficulty of Constitutional Amendment in Canada’ (2015) 39 Alberta Law Review 85 Google Scholar.

52 Hobolt, S and de Vries, CPublic Support for European integration’ (2016) Annual Review of Political Science 413 Google Scholar.

53 For a recent example, see Rose note 47 above.

54 See Rose, ibid; Mendez et al, note 20 above, relying on 2009 European Election Studies data showing a clear majority of EU citizens (62.9%) either ‘strongly agreed’ or ‘agreed’ that EU treaty changes should be decided by referendum.

55 See discussion in Mendez et al, ibid, ch 6.

56 Art 75 Italian Constitution (1947).

57 Overinclusive as the treaty text contains much that is not worthy of constitutional rank, but each major new treaty revision brought in more detail relating to policy areas and institutional procedures.

58 See eg Reidy, T and Suiter, JDo Rules Matter? Categorizing the Regulation of Referendum Campaigns’ (2015) 38 Electoral Studies 159 CrossRefGoogle Scholar.

59 See Cuesta-López, V, ‘A Comparative Approach to the Regulation on the European Citizens’ Initiative’ (2012) 13(3) Perspectives on European Politics and Society 257, p 258 CrossRefGoogle Scholar.

60 CONV 724/03.

61 The Council always had this power (currently Art 241 TFEU); the Parliament was given it by the Maastricht Treaty (currently Art 225 TFEU).

62 On use of this power to date, see Corbett, R et al, The European Parliament, 9th ed (John Harper, 2016), pp 310313 Google Scholar. The Parliament was expressly accorded the power to propose treaty revisions via the Constitutional Treaty, which was retained in the Lisbon Treaty (Art 48 TEU).

63 Respectively Art I-46(4) Draft Constitutional Treaty; Art I-47(4) Constitutional Treaty; Art 11(4) TEU.

64 UK withdrawal from the EU would move this to over 0.2%.

65 For details see Cuesta-López note 59 above.

66 P6_TA(2009)0389 (7 May 2009).

67 COM(2009) 622.

68 Regulation (EU) No 211/2011 [2011] OJ L65/1.

69 See Cuesta-López, note 59 above. See also Dougan, M, ‘What are we to make of the citizens’ initiative?’ (2011) 48(6) Common Market Law Review 1807, p 1820Google Scholar.

70 In some national systems where such a requirement exists it is constitutionally enshrined as in Austria and Italy: see Cuesta-López, note 59 above, p 263.

71 Art 4(1) and Annex II.

72 See further Dougan, note 69 above, pp 1840–1841.

73 Spain has nine months, extendable by three months: see Cuesta-López, V, ‘The Spanish Agenda Initiative and the Reform of its Legal Regime: A New Chance for Participatory Democracy’ in M Setälä and T Schiller (eds) Citizens’ Initiatives in Europe (Palgrave Macmillan, 2012)Google Scholar.

74 The European Economic and Social Committee (EESC) also called for 18 months: see [2011] OJ C44/34.

75 Some agenda initiatives do not have time limits: eg Portugal.

76 See on Swiss direct democracy, Serdült, U, ‘Referendums in Switzerland’ in M Qvortrup (ed) Referendums Around the World (Palgrave Macmillan, 2014)Google Scholar.

77 See Opinion of the EDPS [2010] OJ C323/1. See Art 5(3) and Annex III.

78 Art 13. Art 14 is on penalties.

79 Art 4(1).

80 See for Spain, Cuesta-López, note 73 above, p 208.

81 See Uleri, PV, ‘Institutions of Citizens’ Political Participation in Italy: Crooked Forms, Hindered Institutionalization’ in M Setälä and T Schiller (eds) Citizens’ Initiatives in Europe (Palgrave Macmillan, 2012), p 75 Google Scholar.

82 All initiatives, and registration refusals, mentioned in this section can be found on the online register: http://ec.europa.eu/citizens-initiative/public/welcome

83 See Cuesta-López, note 73 above, p 208.

84 For a recent example see the EESC opinion on the ECI [2016] OJ C389/35, para 3.10.2. Note also Berg, C and Glogowski, P, ‘Heavy Stones in the Road: The ECI in Practice’ in M Conrad et al (eds) Bridging the Gap? Opportunities & Constraints of the European Citizens’ Initiative (Nomos, 2016), p 213 Google Scholar, stating, while relying on data through to 2014, that ‘[n]early half of the proposed ECIs have been declared “legally inadmissible”’.

85 For rare analysis of registration refusals, see Organ, J, ‘Decommissioning Direct Democracy? A Critical Analysis of Commission Decision-Making on the Legal Admissibility of European Citizens Initiative Proposals’ (2014) 10(3) European Constitutional Law Review 422 CrossRefGoogle Scholar. A study critical of registration refusals asserted that ‘[a]round one quarter of the initiatives refused registration’ fall into the category of ‘Initiatives that were (possibly or probably) within the EU’s competence’ but in fact only mentions two examples and only one comes with anything by way of explanation: see The European Citizens’ Initiative Registration: Falling at the First Hurdle? (ECAS, 2015), pp 14–15.

86 Jippes, C-189/01, ECLI:EU:C:2001:420. The most recent refusal concerned the protection of stray animals and was unsuccessfully challenged before the General Court: HB v Commission, T-361/14, ECLI:EU:T:2017:252.

87 See respectively, Anagnostakis v Commission, T-450/12, ECLI:EU:T:2015:739 (on appeal C-589/15 P); Constantini v Commission, T-44/14, ECLI:EU:T:2016:223; Izsák and Dabis, T-529/13, ECLI:EU:T:2016:282 (on appeal C-420/16 P).

88 ‘Unconditional Basic Income’ and ‘Vite l’Europe Sociale’.

89 C(2013) 5969 final, 13 September 2013.

90 Minority SafePack v Commission, T-646/13, ECLI:EU:T:2017:59.

91 COM(2017)2200 final, 29 March 2017.

92 The Commission may have been preempting a future ruling that would require it.

93 Efler v Commission, T-754/14, ECLI:EU:T:2017:323.

94 See eg Art 87.3 Spanish Constitution (1978).

95 This included two initiatives that were initially refused registration, see note 88 above. The withdrawal category includes four that were resubmitted and registered: ‘Single Communications Tariff Act’; ‘Let Me vote’; ‘End Ecocide in Europe’; ‘Media Pluralism’.

96 Respectively COM(2014)177 (Right2Water); COM(2014)355 (One of Us); C(2015)3773 (Stop Vivisection).

97 See Directive (EU) No 2014/23 [2014] OJ L94/1.

98 P8_TA(2015)0294. Similarly, see EESC Opinion [2015] OJ C12/5.

99 Follow up to the European Parliament resolution on the European Citizens’ Initiative (2 February 2016).

100 Dougan note 69 above, pp 1843–1844 (specifically referring to the possibility of the Parliament or Council calling for legislative action under respectively Arts 225 and 241 TFEU but the general insight is of broader application).

101 COM(2016)710 final.

102 Regulation (EU) No 1291/2013 [2013] OJ L347/104.

103 T-561/14 One of Us v Commission.

104 Art 17(2) TEU; Art 289 TFEU.

105 Case 1609/2016/JAS.

106 See Berg, C and Thomson, J (eds), An ECI that works! Learning from the first two years of the European Citizens’ Initiative (The ECI Campaign, 2014)Google Scholar.

107 COM(2015)145 final.

108 P8_TA(2015)0382. Critical opinions also emerged from the Committee of the Regions [2015] OJ C423/1 and the EESC [2016] OJ C389/35.

110 See Commission press release at: http://europa.eu/rapid/press-release_MEX-17-950_en.htm

111 For a particularly detailed range of proposals, see Ballesteros, M and Fiorentini, S, Towards a Revision of the European Citizens’ Initiative (European Parliament, 2015)Google Scholar.

112 The EESC has offered free translation of the 800 characters since October 2014, see Your Guide to the European Citizens’ Initiative, 3rd ed (EESC, 2015), p 11. However, the Minority SafePack initiative came with a 14 page annex.

113 See eg the Committee of the Regions Opinion, note 108 above.

114 L Bouza Garcia and J Greenwood, ‘Bridging the Gap? Opportunities and Constraints of the European Citizens’ Initiative’, in M Conrad et al (eds) see note 84 above.

115 See Decision of the European Ombudsman closing own-initiative inquiry OI/9/2013/TN.

116 The rules of procedure were amended in 2012, Rule 203a, to expressly stipulate this. The organisers of the ‘End Ecocide’ initiative were received in a Petitions Committee hearing at the European Parliament on 26 February 2015.

117 The Parliament has recently underscored this possibility, note 108 above, para 32.

118 On referendums in authoritarian regimes see Wheatley, J, ‘The Disruptive Potential of Direct Democracy in Deeply Divided Societies’ in W Marxer (ed), Direct Democracy and Minorities (Springer, 2012)Google Scholar.

119 For examples of this line of argumentation in relation to voters’ competence and EU referendums, see Dehousse, R, ‘The Unmaking of a Constitution: Lessons from the European Referenda’ (2006) 13 Constellations 151 CrossRefGoogle Scholar; Moravcsik, A, ‘The European constitutional settlement’ (2008) 31(1) The World Economy 158 .

120 Grynaviski, J, ‘Reflections of a Party Scholar on Direct Democracy and the Direct Democracy Literature’ (2015) 38 Electoral Studies 238 CrossRefGoogle Scholar.

121 See eg Altman, D, Direct Democracy Worldwide (Cambridge University Press, 2011)Google Scholar.

122 For further details see Mendez and Mendez, note 2 above. ‘Referendum locks’ were created by the European Union Act 2011 and may partially explain Prime Minister Cameron’s decision to veto a proposed treaty change in 2011: see Hodson, D and Maher, I, ‘British Brinkmanship and Gaelic Games: EU Treaty Ratification in the UK and Ireland From a Two Level Game Perspective’ (2014) 16(4) British Journal of Politics and International Relations 645 CrossRefGoogle Scholar.

123 Smith, G, ‘The Functional Properties of the Referendum’. (1976) 4 European Journal of Political Research 31 CrossRefGoogle Scholar.

124 The three instances are the 1972 French enlargement referendum, the 2016 Dutch Ukraine Association Agreement referendum and the 2016 Hungarian refugee quota referendum.

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