Which suitable referendum for Europe and Europeans?
Session “National referenda & EU: a deadend ? ” within the Conference “European democracy: which new challenges? ” on 26th June 2017 organised in Paris by the Jacques Delors Institute
Policy Brief, “Towards a More Legitimate Form of Direct Democracy in the European Union” by Francis Cheneval
Policy paper “National referendums on European issues: from clarification to frustration?”, by Yves Bertoncini
The conference session on national referenda and the European Union (EU), mostly built on two policy papers, is an occasion to raise the issues of referenda on European topics and to discuss their relevance as democratic challenges.
Why a referendum? The conference session and papers do not aim at justifying the referendum, but they suggest some answers. Patrick Le Hyaric, French member of the European Parliament (Group European United Left/Nordic Green Left), addresses the participation of citizens as need and collective expectation. At an institutional level and within the framework of the European bEUcitizen project, Francis Cheneval, political philosophy professor, indicates that in a democratic context referendum may be an instrument to legitimate politics, policies and governments. It should thus satisfy together citizens and political authorities: such a “win-win” device.
Separate the democratic wheat from the instrumental chaff…Different types of referendum are identified and scrutinized. Francis Cheneval distinguishes plebiscite and citizen right. Plebiscite is a European political tool of government, from the Roman ancient times to Napoleon and to Brexit. Unlike plebiscite, referendum may be a mandatory right of citizens in the legislative process, irrespective of government. Further, Yves Bertoncini, former Head of the Jacques Delors Institute, provides a critical typology of national referenda in Europe. First, referendum may concern only the position of a particular Member State on European issues: this is the case with the accession and the deepening processes. Second, referendum may refer to “indivisible” issues, i.e. issues affecting all the member states. For instance referenda on European treaties, or 2015 Greek referendum on a financial agreement with the “Troïka” (European Commission, European Central Bank and International Monetary Fund). Finally, referendum on indivisible issues may be a governmental tool in power struggle between member states. And thus be a specific plebiscite according to Francis Cheneval’s definition. Yves Bertoncini recalls 2015 Greek referendum, 2016 Dutch referendum on the association agreement with Ukraine and also 2016 Hungarian referendum on the acceptance of migrants. To assess a referendum in Europe, we have thus to carefully look at its initiator alongside the impact of its topic on member states.
And observe its potential aftermath…Referendum is mostly valued on its consequence. Processing referenda, the European Union could not respect national will of voting population as of other member states. Yves Bertoncini speaks about denial of democracy to address two possibilities considered as based on perceptions given that legal texts evolve consequently. However in both situations, referendum leads to frustration and tension among and between populations and governments. The Referendum may also play a role in the effective running of the political regime and European ability to act. Yves Bertoncini questions the governability of the European Union in the different above referendum scenarios through the risk of deadlock. Referendum could hinder a counter project, a compromise, a solution to surface. Besides and as previously mentioned, political legitimacy is at stake with referendum. Francis Cheneval uses legitimacy enhancement as criterion for democratic decision-making device. Referendum can support citizens’ acceptance of politics, governments and decisions with varying degrees depending on its conditions of implementation.
To create an ideal European referendum…The only shared solution by Yves Bertoncini and Francis Cheneval: a European referendum in a semi-direct democracy. According to Francis Cheneval in order to avoid transnational influence on voting, and to Yves Bertoncini, to prevent denial of democracy. Francis Cheneval lists the required conditions for any democratic decision-making device: access to alternative information, formal equality to participate, economic independence of citizens, and the most neutral decision making process regarding referendum outcomes. bEUcitizen publications develop more in depth thinking related to some of these conditions (economic rights of citizens, European civic culture, freedom of expression…). Moreover Francis Cheneval shapes European referendum characteristics. To avoid any risk of plebiscite referendum should be called by citizens, as a popular initiative, or be a constitutional obligation. Its results should be binding. It should be a Europeanwide device, coordinated at the EU level and implemented simultaneously in all member states. Finally, citizens need to become accustomed to referendum to prevent any second order voting (when vote suffers from disrepute). An experiment of referendum at local, national and European level is recommended. One last piece of advice: referendum subject should be on secondary law, namely laws, given that any change of primary law, namely treaties, has to be decided by a common accord that is a unanimous one, hard to reach.
But highly challenging…Francis Cheneval adresses the next step towards the European referendum creation. It requires a modification of European treaties through an ordinary procedure. The referendum introduction has thus to be agreed by representatives of national governments through the famous common accord[1] and ratified by each member state. Besides, national constitutions could also evolve to launch national and local referenda. Based on Yves Bertoncini paper, in several European countries, referendum does not legally exist, namely in Germany, Cyprus, Czech Republic and Belgium, or exist through different provisions. To foster the development of national habits, a specific education should also be provided to European citizens. Francis Cheneval also recalls the twofold composition of Greek politics: technique, namely skills, and practice, i.e. the world experienced by anyone. In addition to legal provisions and skills, European referendum raises the question of the EU integration. European referendum results will create national minorities within the EU. Moreover, as mentioned by Yves Bertoncini and Francis Cheneval during the conference, a double majority referendum (of citizens and of heads of state or government), will change the nature of the EU. Each member state will have to previously support the EU to become a federal Union.
Here comes not the end. Constitutional law and the Venice Commission of the Council of Europe, which is dedicated to democracy through law, discuss numerous additional features of referendum[2]. For instance, referendum may be abrogative, to reject a new legal change, and/or be an initiative, to vote a new legal text. An external institution may review the referendum constitutionality a priori or a posteriori. A quorum of voters, i.e. a minimum, may be required to confirm referendum results. It is a long way. Every feature of referendum needs a particular attention to overcome local and national mistakes experienced in Europe and to seek a common and popular accord. The debate launched by the conference session was maybe a first glimpse of referendum education. The related papers definitely bring new relevant knowledge for European citizens.
[1] Treaty on European Union, article 48, available on 27th November at http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=OJ:C:2016:202:FULL&from=EN
[2]Chagnollaud, Dominique, 2007, Droit constitutionnel contemporain, Tome 1 Théorie générale, Les régimes étrangers, Dalloz