At the June 2004 European Council meeting, the governments of the 25 EU member states signed a constitutional treaty for the European Union. This treaty had been two years in the making; it was drafted by an unprecedented “Convention on the Future of Europe” intended to allow input from voices not usually heard in the European integration process including national parliamentarians and civil society actors. From there, the draft was subject to a nearly year-long negotiation by the member state governments that, after fierce bargaining, eventually produced a treaty. But the process is not over; rather it has entered its final and perhaps most difficult phase. The text must be ratified unanimously by the member states, each according to its own national process. There is a real risk that the process may fail, an outcome that would have unpredictable and potentially serious consequences for the future of European integration.
The primary risk comes from the intention of many of the member states to hold referendums on the Constitution. A majority of member states are either committed to holding a national referendum for ratifying the Constitution or, at least, have not definitively ruled out this option. Only three member states have explicitly rejected recourse to a referendum: Malta, Sweden, and Germany. So why have so many national authorities decided to use a referendum as the instrument for ratifying the EU Constitution?
A referendum is not required to ratify an international treaty (and strictly speaking the EU Constitution is an international treaty) in any EU member state. At most, a referendum may be required to reform the national constitution in order to incorporate amendments needed to conform to an EU treaty. But only in the Irish Constitution, amended by means of a referendum after every new treaty since the Single European Act in 1986, is this requirement explicitly stated as a direct legal imperative. More commonly, a number of European constitutions exhibit a certain mistrust of referendums. In Germany, the domestic constitutional arrangements reflect the negative view of referendums inherited from the abuse of such instruments in a totalitarian past. The Greek Constitution allows them, but there exists no enabling legislation establishing the procedure, and the last one was held in 1974. In Italy, there is a widespread feeling that a referendum should be held on the European Constitution, but the Italian government argues that are certain “technical difficulties” to holding a referendum on the Constitution.
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