Romanian Journal of Comparative Law n° 1/2018 273

THE REFERENDUM AS A MEANS FOR THE EUROPEAN

UNION’S DEMOCRATIC LEGITIMACY

Andrei-Răzvan LUPU

Abstract

The European Union, a political and legal entity without precedent, is constantly
criticized for its lack of democratic legitimacy. Direct election by the citizens of the
European Parliament’s members, the European citizens’ initiative or the attempt to
engage the population in the treaties’ revision process by convening national
referenda, have not represented sufficiently powerful means to repel the scepticism
towards Brussels’ distant power. Could a European-wide referendum increase the
Union’s legitimacy? Which would be the risks and which would be the advantages of
such initiative? Also, which could be the institutional mechanisms that would best
serve the configuration of a European referendum? The aim assumed by this paper is
offering an answer to all the above questions, finding at the same time a new
perspective over a constitutional device with a lasting tradition.

Keywords: democratic deficit; European referendum; European sovereignty.

Résumé

L’Union Européenne, entité politico-juridique sans précédent, a été critiquée

constamment pour sa manque de légitimité démocratique. L’élection directe par les
citoyens des membres du Parlement Européen, l’initiative des citoyens européens ou
la tentative d’engager la population dans le processus de révision des traités en
convoquant des referendums nationaux n’ont pas représenté des moyens
suffisamment puissants pour repousser le scepticisme contre le pouvoir éloigné de
Bruxelles. Est-ce-qu’un referendum à l’échelle européenne pourrait augmenter la
légitimité de l’Union? Quels seraient les risques et/ou les avantages d’une telle
initiative? Quel serait le mécanisme institutionnel qui servirait mieux la
configuration d’un referendum européen? Le but de cet article est d’offrir une
réponse aux questions poses ci-dessus, en trouvant, en même temps, une perspective
nouvelle sur un instrument constitutionnel de longue tradition.

Mots-clés: déficit démocratique; referendum européen; souveraineté européenne.

 PhD-candidate, Faculty of Law, University of Bucharest.

274 ANDREI-RĂZVAN LUPU

“Je pense que l’organisation de l’Europe

doit procéder de l’Europe elle-même.
J’estime que c’est une vaste référendum
de tous les Européens libres
qui doit lui donner le depart.”

Charles de Gaulle, Bordeaux, 1949

1. Legitimising European Union’s Power

The state’s power, and therefore sovereignty, “is, more than anything else, a
question of legitimacy”.1 Should such question of legitimacy be extended to
non-state entities exerting political power? In order to answer this question,
one should start from an elementary finding: the science of constitutional
law perceived throughout its evolution the notion of sovereignty as a
specific attribute of the state. However, certain elements defining
sovereignty, such as exclusive regulatory power, the existence of an
autonomous normative system or the legal personality in international
public law relations, are also specific to the European Union (which, as a
separate note, justifies the need for future re-evaluation of the concept of
sovereignty). As a consequence, in order to ensure its perpetuation, the
power of the European Union, encompassing the elements of sovereignty
mentioned above, must be accompanied by certain means of legitimisation.2
What is the ideal way of legitimising the European Union’s power and, in
particular, what are the tools that can provide it with a sufficient degree of
legitimacy?

European law scholars proposed a specific "EU cumulus of legitimacy", each

specific type of legitimacy being determined in relation to the institution in
question.3 This has supported the democratic legitimacy of the Parliament,

1 Immanuel Wallerstein, World-Systems Analysis: An Introduction (Durham: Duke University

Press, 2004), p. 44.
2 David Beetham, The Legitimation of Power, 2nd edition (Basingstoke: Palgrave Macmillan,

2013), pp. 56 et seq.

3 Christine Bertrand, La démocratie participative dans le système institutionnel de l’Union

européenne, in 2013 (27) Cahiers du Centre d’Histoire «Espaces et Cultures», p. 3.

 Romanian Journal of Comparative Law n° 1/2018 275

while the Council’s power is partially legitimized by borrowing the Member

State’s sovereignty. The Commission is subject to an 'integrative legitimacy',
assuming the pursuit of the Union’s interest as a type of the States’ superior
interest, and the power of the Court of Justice is legitimized by its activity for
the defence of the rule of law. Without expressly assuming that such an
argument is dysfunctional, it is worth noting that the actions of the Union’s
institutions, especially in the regulatory field, are rarely perceived by citizens
separately, but only as a whole. Such perception is determined especially by
the existing decision-making mechanisms, involving at least the
Commission, the Parliament and the Council, adopting European rules
being the result of a collaboration between the main European institutions. It
is therefore necessary to look for a unique form of legitimisation for the
entire Union and its activity, irrespective of the institutions involved in
exercising the elements of sovereign power.
At first instance, one could search the legitimacy of the Union’s power in its
delegated nature, as the ultimate holders of such power are in fact the
Member States. By establishing forms of collaboration on the basis of
international law, these ultimate holders have agreed to delegate (an action
implying the possibility of revocation) a part of their sovereign power to
supranational institutions. However, such description corresponds only to
an early stage of the European construction, specific to an intergovernmental
approach. In the meantime, many of the Union's institutions have become
autonomous in relation to the will of the Member States’ governments:
beyond institutions such as the Court of Justice or the Commission, which
could be classified as supranational from the very beginning, taking into
consideration their specific roles, other institutions such as the European
Parliament or the European Central Bank have gained more and more
autonomy during their existence. Even in the case of the Council, an
intergovernmental institution by nature, taking into consideration the way it
is composed, the decision-making mechanism established by the Maastricht
Treaty and developed following the adoption of the Lisbon Reform Treaty
has limited the power of the Member States: in many areas, decisions are
taken by a qualified majority, the national authorities being obliged to
comply with the provisions of adopted acts even if they opposed their
adoption during the Council debate. The only institution in which
consensualism has remained the main decision-making rule is the European
Council. However, some of its most important decisions, such as the
276 ANDREI-RĂZVAN LUPU

appointment of the presidents of the Commission and of the European

Council, are also governed by the will of the majority.
Therefore, as long as the legitimacy of exercising sovereign power elements
specific to the European Union cannot be identified in the area of public
international relations, it is necessary to continue the research in the state
constitutional area. It has been specific to the theory of the last century on
the legitimacy of power to assume the rationality of individuals: they
analyse the way in which power is exercised and its consequences, and, if
their own interests are satisfied, they accept the exercise of power, thus
legitimising it.4 This has long been the case for the European construction,
with citizens accepting the power exercised by the European institutions
thanks to its beneficial consequences, especially in the economic area.
However, the reform that began with the adoption of the Single European
Act in 1986 required the Union to take on tasks additional to the already
existing economic affairs, reaching areas ranging from culture and education
to defence and foreign policy. Such expansion has increased the public's
reluctance to Brussels, which has led at some moments even to a refusal by
citizens of new stages of integration.5 One could therefore speak of a
legitimacy crisis in the sense attributed to Jürgen Habermas,6 as the citizens of
the Member States become reluctant or at least disinterested in the work of
the European institutions despite their compliance with the legal framework
or the values assumed by various programmatic acts.
One of the most frequently cited arguments by the Euro-sceptics, in order to
highlight the lack of legitimacy of the European Union, is the democratic
deficit, stressing out the disproportion between the power of the European
institutions and public participation in making these decisions. An
institutional analysis seems to contradict such an argument: the role of
citizens in designating decision-makers within the Union is not significantly
lower than their role in designating decision-makers in most Member States
with a parliamentary system. Thus, the designation of Members of the
European Parliament resembles that of appointing the members of the lower

4 See Mark C. Suchman, Managing Legitimacy: Strategic and Institutional Approaches, in (1995)
2/20 The Academy of Management Review, pp. 576-578.
5 The best example in this regard is the case of the rejection by the French and Dutch citizens of

the draft Constitutional Treaty in 2005. More recently, the vote for the United Kingdom to
leave the European Union can be read in the same key.
6 Jürgen Habermas, Legitimation Crisis (Boston: Beacon Press, 1975), pp. 33 et seq.
 Romanian Journal of Comparative Law n° 1/2018 277

chambers of national parliaments, while the composition of the Council is

largely similar to the composition of the upper chambers of highly
decentralized states, comprising members appointed by the regional
authorities (in the Council’s situation, members of the Member States’
governments). However, the question of legitimacy reappears when, beyond
the institutional mechanisms, the real participation of the public in the
exercise of the European Union’s power is analyzed. The most relevant
example is participation in the latest European Parliament elections, which
was at the lowest level since 1979 when the first European Parliamentary
elections took place, namely 42.5%.7

2. The Necessity for a European Referendum

There remains, therefore, the question of how to generate citizens' interest in

exercising power at European level. In other words, can European citizens
form a political body interested in the joint exercise of a European quasi-
sovereignty? The answer to such a question seems more difficult to identify
once we realize that in the European Union’s case there is a widespread lack
of consciousness of belonging to a single political entity, owner of
sovereignty, as in the case of the existing nations. In order to avoid an
exhaustive discussion of such a complex topic, I will summarize briefly some
relevant arguments in this respect. In a recent work,8 Joseph Lacey analyzed
the situation of non-national states, pointing out the existence of centrifugal
forces, which could lead to the disintegration of the political body, and of
centripetal forces, supporting the unity of the political body. The main and
most enduring centripetal force throughout history is the existence of a
lingua franca, understood by all the inhabitants of a state, which would allow
the formation of a demos in the name of which the power is exercised. The
use of different languages by the subjects of political power turns into a
centrifugal force, which leads to destabilization or even disintegration of the
political body. In the case of the European Union one cannot speak of a
lingua franca used irrespective of the level of training, occupation or age. It is
therefore necessary to identify other centripetal forces, which could offer

7 According to the information published on the website of the General Directorate Eurostat:
http://ec.europa.eu/eurostat/tgm/table.do?tab=table&init=1&language=en&pcode=tsdgo310&p
lugin=1, last accessed on 16 July 2017.
8 Joseph Lacey, Centripetal Democracy. Democractic Legitimacy and Political Identity in Belgium,

Switzerland and the European Union (Oxford: Oxford University Press, 2017), pp. 145 et seq.
278 ANDREI-RĂZVAN LUPU

unity to the political body, democratically legitimizing the political power.

Among these centripetal forces that allow citizens to participate in the
exercise of power, I believe that the most relevant could be the citizens'
legislative initiative and the referendum.
Firstly, the citizens' legislative initiative was established by the Lisbon
Reform Treaty and is currently mentioned in article 11, paragraph (4) of the
Treaty on the European Union (hereinafter "TEU") and detailed by
Regulation 211/2011 on the citizens' initiative. Other similar rights, such as
the petitions or the European Ombudsman, provided for in Articles 227 and
228 of the Treaty on the Functioning of the European Union (hereinafter
"TFEU"), were also intended to bring citizens closer to the power exerted at
the European level. It is significant, however, that from the entry into force
of the Lisbon Treaty in 2009 until the writing of this paper, only three
citizens' initiatives have managed to reach the minimum threshold of one
million supporters. Even so, none of them has become a draft legislative act9
and this step remains however the Commission’s option. Moreover, as it has
been pointed out by scholars10 that although the popular legislative initiative
undoubtedly encourages the involvement of citizens, only a very small part
of them will follow the whole evolution of the project and that the
cumbersome procedures at the Commission level significantly reduce the
chances that citizens will the consequences of their political action at
European level.
The second centripetal force that would allow European citizens to become
aware of the exercise of power at Union level, the referendum, is a much
more complex topic. Although they have repeatedly argued for a European
referendum, Member States have avoided including any corresponding
mechanism in the Treaties. I think, however, that the regulation of a
referendum at the level of the European Union would be the most important
centripetal force available to support the feeling of belonging to a unitary
political body and the participation in the exercise of sovereignty at
European level. In support for this position, I will outline some of the
perspectives on the referendum and its functions. Later, I will consider the
possible configuration of a European referendum, trying to identify the

9 According to the website http://ec.europa.eu/citizens-initiative/public/initiatives/successful,

last accessed on 16 July 2017.
10 Bertrand, op. cit., supra, note 3, pp. 6-7.
 Romanian Journal of Comparative Law n° 1/2018 279

format that would bring the most significant increase of legitimacy to the
European construction.

3. Referenda: Types and Functions

Any scientific approach requires a prior analysis of the means available at

the time of proposing an intervention. In the present case, it is necessary to
classify the existing types of referendum, together with their specific
functions and effects, so that the ideal format for the European Union’s case
can then be configured. However, it should be noted from the beginning that
the institution of the referendum is characterized by a lack of recurrences in
various regulations, which would have allowed for a precise inventory.
Furthermore, for an exhaustive classification of referenda, it would not be
sufficient merely to analyze positive constitutional texts, as in many states
referenda are rather the result of ad hoc procedures established by
regulatory authorities. As it has just been shown, "in the literature on
referenda an abstract animal can be found, the referendum, with features
taken up by too few of the referenda that really take place. The real world of
referenda is a very different one".11 As a result, I will only look at a limited
number of criteria for classifying referenda, without claiming universal
applicability. It is also useful to mention from the beginning of this approach
that I will avoid making a distinction between the notion of referendum and
that of the plebiscite, such a distinction being itself the result of a
classification of the types of popular consultation.

A. Referenda: Types

A first criterion of interest in identifying different types of referendum is the

very existence of an express regulation regarding this mechanism. Based on
this criterion, a distinction was made between "prescribed" referenda
(mostly in the European states), when express constitutional or infra-
institutional regulation set out in detail the procedure and effects of such
consultations, and "discretionary" referenda, such as those in United
Kingdom or Norway, for which a normative instrument will be used ad hoc

11David Butler, The World Experience, in A. Ranney (ed.), The Referendum Device (Washington
D.C.: American Enterprise Institute for Public Policy Research, 1981), p. 79.
280 ANDREI-RĂZVAN LUPU

to establish a single referendum.12 While the first type of referendum has the
advantage of better institutionalization, better regulated procedures to be
followed and clearer consequences of the referendum’s results, the second
type of referendum presents the benefit of flexibility and the interpretation
of its results remains at the discretion of the organizers, to the detriment of
predictability. It is also likely that a "discretionary" referendum will have an
advisory nature rather than produce direct legal effects. Instead, it will
express the will of the population, capable of producing a significant
political effect on the legitimacy of the government in office.
A second type of referendum classification is determined by how they are
convened. In this type of classification, the criteria are (i) the obligation to
convene the referendum and (ii) the owner of the right or obligation to
convene the referendum. Regarding the criterion of obligatory calling for a
referendum, it should be noted that it is only applicable to the "prescribed"
referenda mentioned in the previous paragraph. We will therefore be able to
talk about "mandatory prescriptions", where a particular event requires a
referendum to be called - as is often the case for the revision of the
constitution - and "optional" referenda, the organization of which constitutes
the right of a particular authority such as the right of a minority of
lawmakers in Ireland,13 a number of regional councils in Italy,14 or the head
of state in France15 or Romania.16 From the point of view of the owner of the
right or the obligation to convene the referendum, the identification of
different types of referenda will be possible only by taking into account the
institutional framework of each state.
As regards the issue which is subject to the referendum, it will be possible to
distinguish between referenda on the approval / ratification / rejection of an
act, be it a constitutional text, an international treaty or an ordinary
legislative act,17 and referenda on the future conduct of a state (promotion of

12 Nevil Johnson, Types of Referendum, in Ranney, op. cit., supra, note 11, p. 19. As an example,
the referendum regarding the United Kingdom’s membership to the European Union was
organized based on European Union Referendum Act, which came into force on 1 February
2016.
13 Constitution of the Republic of Ireland, Article 27.

14 Constitution of the Italian Republic, Article 25.

15 Constitution of the French Republic, Article 11.

16 Constitution of Romania, Article 90.

17 Ștefan Deaconu, Instituții Politice, 2nd edition (Bucuresti: C.H.Beck, 2015), p. 134.
 Romanian Journal of Comparative Law n° 1/2018 281

certain economic policies, integration into a particular international

organization, etc.). As far as the possibilities of positioning different political
actors in relation to the referendum are concerned, one can distinguish
between competitive referenda, where opposing positions by different
political actors are accepted, and closed referenda, where the referendum is
seen as a question addressed to the citizens by the authorities exercising the
power, without the intervention of other opinion makers, a form specific to
the authoritarian regimes of the nineteenth century (as was the case for
France between 1848 and 1871) or totalitarian regimes (as was the case with
the referenda promoted by the Nazi regime).18
Finally, from the point of view of the legal effects produced, the usual
distinction is the one between the consultative referenda, where the
population is only consulted on a matter of public interest, whereas the final
decision is taken by the competent authorities, and decision-making
referenda, in which the result of the referendum is a mandatory one.
Corroborating a previous classification, it will be noted that consultative
referenda mostly concern general political issues, such as the future conduct
of the state in certain areas, while the decision-making referenda deal with
the approval / ratification / rejection of certain acts.19 In a limited number of
situations, such as Romania, decision-making referenda on the removal of
the incumbents of certain political positions, such as that of President, can
also be identified.

B. Referenda: Functions

Once a brief classification of the types of referenda has been made, some of
their functions need to be highlighted in order to determine later what
configuration of the referendum can ideally serve as a centripetal force at the
level of the European Union.
A first function of the referendum to be revealed is, of course, the exercise of
sovereignty by the people. This function is also addressed in the present
paper when it is proposed to establish a European referendum in order to
legitimize the exercise of sovereign attributes by the European Union.

18 Pier Vicenzo Uleri, Democracy and the Referendum Phenomenon in Europe, in M. Gallagher, P.
V. Uleri (eds.), The Referendum Experience in Europe (London: Macmillan Press, 1996), p. 4.
19 Id., p. 7.
282 ANDREI-RĂZVAN LUPU

However, although perceived in most cases as an undeniable desiderate, the

direct exercise of power by its owner, the people, may also raise certain
issues. First of all, it is likely that certain questions which may be subject to a
referendum will involve issues of a high technical nature, inaccessible to
non-specialists, as is the case with referenda on foreign policy issues.20 Also,
in some situations, the referenda undermined the majority of issues that
questioned the rights of minorities,21 contrary to the logic of liberal
democracy. Moreover, domestic referenda have sometimes been used by
national authorities to justify their opposition to certain international or
European obligations.22 Last but not least, referenda can be perceived as a
means of removing institutional actors from the decision making process,
the authority being exercised directly by the people. Such an effect of the
referenda made political actors considered anti-system to be fervent
supporters of the most frequent recourse to the referendum as a means of
political decision.23
In close connection, there is the function of autonomy of a political body.
Thus, the referendum was used at an infra-state level, most often in regions
with a particular identity in relation to the central state, precisely to highlight
the desire of their inhabitants to distinguish themselves from other members
of the nation-wide community. Useful examples are the referenda convened
in Montenegro (2006),24 South Sudan (2011),25 Scotland (2014) or Catalonia
(2017).26 Based on these precedents, it should be noted for the later analysis
that the function of autonomy of the political body could also be used at a

20 A relevant example is the referendum organized by the Dutch Government on 6 April 2016
on the ratification of Ukraine's Association Agreement with the European Union.
21 As was the case in the referendum held in Switzerland in November 2009 due to a popular

initiative, resulting in a ban on the construction of minarets in Switzerland.

22 The most recent example is the referendum organized by the Hungarian Government on 2

October 2016 on the rejection of migrant quotas imposed by the European Union.
23 Saskia Ruth, Yanina Welp, Laurence Whitehead (eds.), Let the people rule? Direct democracy in

the twenty-first century (Colchester: ECPR Press, 2017), p. 3.

24 An introduction to the circumstances of the referendum can be found at:
https://www.cfr.org/backgrounder/montenegros-referendum-independence, last accessed on
20 August 2017.
25 Dev Nathan, The South Sudan Referendum, in (2011) 11 Economic and Political Weekly,

pp. 25-27.
26 Hakan Kolcak, From Unionism to Secessionism: a comprehensive analysis of contemporary Catalan

Politics, in (2017) 1 The Romanian Journal of Society and Politics, pp. 25-44.
 Romanian Journal of Comparative Law n° 1/2018 283

supra-state level, as would be the case of a European referendum, enabling

European citizens to become aware of their belonging to this form of
exercising sovereignty, distinct from their states of origin.

Another function of the referendum is the validation of the government.

Thus, as Napoleon III firstly did, the current European executive leaders
often resort to referenda on more or less essential issues (through
constitutional or consultative referenda) for the purpose of re-legitimising
their own mandates or even as an adjunct to elections.27 Of course, in many
cases the result may be opposed to that advocated by the proponents, which
may even lead to the collapse of the government.28
Last but not least, another function of the referendum, even if unwanted in
most cases, is polarization. Thus, according to Arend Lijphart's distinction,29
the referendum involves a classical majoritarian mechanism, in which the
political decision is taken without the minority's co-optation. If, in the case of
the elections for the designation of different authorities, consensualist
models could be identified that equally represent the representation of the
minority, such as the proportional vote, the referendum will express
exclusively the will of the majority, ignoring the minority's option, no matter
how large it is. However, this deficiency can be improved, even if not
eliminated, by imposing a qualified majority or a double majority, similar to
the one specific to the Council's decision-making modalities. It must be
noted, therefore, that "direct popular action, in its many forms, helps to
strengthen the democratic element. But if the dose is too strong, it will
destroy the balance."30

27 Useful examples can be considered the referenda held in Romania in 2007 on the procedure
for appointing the members of the Parliament, and in 2009, on the structure of the Parliament
and the number of its members.
28 Relevant examples are the referendum on the exit of the United Kingdom from the

European Union, held on 23 June 2016 at the initiative of Prime Minister David Cameron, or
the referendum on the revision of the Italian Constitution, held on 4 December 2016, at the
initiative of the Prime Minister of Italy, Matteo Renzi. In both cases, the result of the vote also
led to the resignation of the head of government.
29 Arendt Lijphart, Modele ale Democrației. Forme de guvernare și funcționare în treizeci și șase de

țări (Iași: Polirom, 2006), pp. 25-26.

30 Carl J. Friedrich, Constitutional Government and Democracy. Theory and Practice in Europe and

America (London: Blaisdell Publishing Company, 1968), p. 571.

284 ANDREI-RĂZVAN LUPU

4. Previous Referenda Regarding the European Union

Once the types and general functions of the referendum have been
presented, the analysis should be restricted to the particular case of the
European Union. In the absence of a genuine pan-European referendum, I
will try to identify a set of referenda at national level, but closely linked to
the work of the European Union, particularly through the theme proposed
for the citizens' vote. As will be seen, most of the referenda that brought the
European Union the central plan in the debate were related to either joining
the Union or to major reforms, notably the revision of the founding treaties.
With regard to the accession referendums, it should be noted that they
succeeded in determining broad majorities in favour of accession, with the
notable exception of Norway (the accession of the Nordic country to the
Union was rejected in two referenda, with a majority of 53 % in 1973 and
52% respectively in 1994). Instead, referenda on reform initiatives have been
less successful, their case being relevant to this study. To the aforementioned
we can add the only referendum on leaving the Union by a Member State,
namely that organized in June 2016 in the United Kingdom (the 1982
Greenland referendum on only an autonomous territory of a Member State
and not a State in its entirety).
Perhaps the most important constant of these referenda identified by
scholars was their character of a "second-order referendum."31 A first
manifestation of this character is represented by the dissociation between the
object of the referendum and the object of the public debates. Thus, although
the object of the citizens' vote concerns the European Union, the debates
before the referendum focus on internal policy issues and, in general, on the
efficiency of the sitting government. A good example is that of the French
referendum in 2005 on the ratification of the Constitutional Treaty, which
probably represents the referendum on a European issue that generated the
greatest interest from the theorists before the vote for the United Kingdom
leaving the European Union. Thus, although 55% voters rejected the
constitutional treaty, more than half of the opponents of the Constitutional

31See Renaud Dehousse, The Unmaking of a Constitution: Lessons from the European Referenda, in
(2006) 13/2 Constellation. An International Journal of Critical and Democratic Theory, p. 152;
Karlheinz Reif, Herman Schmitt, Nine Second-Order Elections. A Conceptual Framework for the
Analysis of European Elections Results, in (1980) 8 European Journal of Political Research, p. 8.
 Romanian Journal of Comparative Law n° 1/2018 285

Treaty (57%) stated, according to a survey,32 that they actually supported

European integration, with 37% of the opponents believing that the adoption
of a European constitution was a necessary step for European construction.
However, the unpopularity of the president, Jacques Chirac, the initiator of
the referendum, and of the Prime Minister, Jean-Pierre Raffarin, led to the
surprise negative vote.33
Another constant specific to referenda on the European Union is the
complexity of the problem which is subject to public debate and vote. Thus,
the concrete interests of the voters can hardly be identified in the
referendum on the evolution of the Union, which leads to both low interest
and quasi-arbitrary decisions. A good example was the surprising rejection
by voters in the Republic of Ireland of the Treaty of Nice following the
referendum of 7 June 2001. Symbolically, the most popular slogan preceding
the vote was "if you don't know, vote no."34 Similarly, Philippe de Villiers,
conservative supporter of the vote against the massive constitutional treaty
in the 2005 French referendum, said that "among the 448 articles, we will
each find a reason to say no."35 A more recent example is the rejection by the
Dutch voters, with a comfortable majority (approximately 61%), of the
ratification of Ukraine's Association Agreement with the European Union, a
subject of minor importance for a Western European state (which has also
determined a voting presence of about 30%).
In some cases, a significant impact on the outcome of the referendum was
determined by the position of the government in relation to the issue under
decision. Thus, although in its capacity as organizer of the referendum, the
government should have ideally assumed a neutral position, the prime
ministers used the opportunity to achieve broad consensus across society,
generating support for their own government. This was particularly the case

32 According to the article Réflexions sur la crise de l'opinion à l'égard de l'Europe, published by the
former French president Valéry Giscard d'Estaing on 14 June 2015 in the daily newspaper Le
Monde (available on-line at http://www.lemonde.fr/idees/article/2005/06/14/reflexions-sur-la-
crise-de-l-opinion-a-l-egard-de-l-europe-par-valery-giscard-d-estaing_661832_3232.html, last
accessed on 23 July 2017).
33 Paul Hainsworth, France Says No: the 29 May 2015 Referendum on the European Constitution, in

(2006) 1 Parliamentary Affairs, pp. 98-117.

34 Andrew Moravcsik, The European Constitutional Compromise and the Neofunctionalist Legacy, in

T. Borzel (ed.), The Disparity of European Integration: Revisiting Integration in Honour of

Ernst B. Haas (New York: Routledge, 2006), p. 169.
35 Dehousse, op. cit., supra, note 31, p. 160.
286 ANDREI-RĂZVAN LUPU

for consultative referenda, the purpose of which was to get the people's
opinion on various European policies or policies which were unpopular in
the country concerned. A good example is the referendum convened by
Greek Prime Minister Alexis Tsipras in 2015 in which the Greek citizens had
to give their opinion on a financing agreement for Greece by the European
Union, which would have also imposed numerous budget constraints and
increased austerity policies. Predictably, about 61% of the voters rejected the
agreement proposed by the European Union. A more eloquent and more
recent precedent is that of the referendum held in Hungary on 2 October
2016 on the quotas of migrants attributed in 2015 by the Council to each
Member State. Paradoxically, although the redistribution of migrants at
European level would have helped Hungary, as a country on the migration
route, to send migrants to other Member States, 98% of the voters opposed
the quota set by the Council.
Another peculiarity which requires attention is the mutual influence
between the referenda held in different Member States. Although the idea of
holding referenda on the same issue and at the same time in several
European countries was rarely taken into consideration, one of the existing
precedents allows for the identification of a "domino effect", the result of a
referendum in a state significantly influencing the vote in the states where
the referendum was subsequently scheduled. Thus, the surprising result of
the referendum held in France on the Constitutional Treaty, namely the
rejection of the treaty by a majority of about 55%, quickly generated a similar
result in the Netherlands, where the treaty was rejected by about 62% of
voters. Perhaps even more important, governments in countries that had
previously announced similar referenda, such as the United Kingdom,
Poland or Denmark, gave up on the public consultation.
Last but not least, the uncertain nature of the consequences of a referendum
on the European Union should be mentioned. Thus, in a few situations,
although the will expressed by the people by referendum was contrary to
the European Union, the governments of the Member States eventually
decided to adopt measures rejected by the people. This is, for example, the
case of the referendum by which the Greek population rejected the European
Union's financing agreement: although the result of the vote of 5 July 2015
indicated a clear opposition to the agreement, the Greek premier eventually
announced the intention to accept the funding from the Union. Similarly,
despite the outcome of the referendum of 6 April 2016, in which Dutch
 Romanian Journal of Comparative Law n° 1/2018 287

voters rejected the ratification of Ukraine's association agreement with the

European Union, both chambers of the Dutch legislature ratified the
agreement, which was afterwards promulgated on 31 May 2017. A similar
case was the rejection by the people of Ireland, by referendum, of both the
Treaty of Nice and the Treaty of Lisbon. In spite of the people’s will, the Irish
government continued negotiations that resulted in the ratification of the
two Treaties, following concessions from the Union’s representatives.36 The
Greek and Irish precedents also exemplify another feature of referenda on
EU affairs, namely the organization of such popular consultations as an
argument used by national governments to gain a better position in
supranational negotiations with other Member States or with European
institutions.

5. Configuring the European Referendum

The comments on the typology and functions of the referenda and, in

particular, the previous analysis of the constant features of referenda on the
European Union provide a starting point for making proposals for a future
European referendum. Such an approach is not an innovative one, and
relevant precedents can be identified in the literature.37 Instead, based on the
experience of referenda on European issues that have taken place in recent
times, new arguments can be identified to allow for a new configuration. In
this respect, I will discuss the need for an express regulation of the European
referendum, how to convene it, the issues that may be the subject of the
referendum, the type of vote, the quorum and the majority required, as well
as the legal effects of such a referendum.

A first aspect to be considered is the need for an express regulation of the

European referendum. In fact, at this point, there is no impediment to
establishing, through the ordinary decision-making procedure, the

36 It is important to remember that at the time of drafting this paper, even the prospect of
leaving the European Union by the United Kingdom, despite the outcome of the referendum
held on 23 June 2016, is seriously questioned.
37 See: Yannis Papadopoulos, A. Buffat, Concrétiser la démocratie participative en introduisant un

«référendum d’initiative populaire» dans le système politique européen, in O. Costa, P. Magnette,

(eds.), Une Europe des élites? Réflexions sur la fracture démocratique de l'Union européenne
(Bruxelles: Editions de l’Université de Bruxelles, 2007); Dehousse, op. cit., supra, note 31;
Bertrand, op. cit., supra, note 3.
288 ANDREI-RĂZVAN LUPU

organization of such an EU-wide consultation. The double majority system

in the Council would allow the adoption of such an initiative even against
the opposition of some Member States. The issue of organizing such a
referendum was specifically put forward in the intergovernmental
conference that drafted the Constitutional Treaty, and it was shown that the
adoption of a constitution must be the act of a true European people, acting
together.38 However, the initiative was opposed by the representatives of the
Member States’ governments and their fear of losing control over the
electoral campaign as a genuine pan-European campaign would have had a
unique object, over which they had limited control. It should also be noted
that, in the event of an approval for organizing a European-wide
referendum, the responsibility for organizing it will come to the national
authorities whose lack of cooperativeness could hardly be counterbalanced
by the European institutions.

Looking from the opposite perspective, that of the European Union, the
mere existence of national precedents is not enough to ensure the ideal use
of the instrument of the referendum at the Union level. As previously stated,
"it would be naive for someone to expect that, as a result of institutional
mimetism, one would obtain the same effects as in the cases from where the
institution was imported."39 I therefore consider it useful for EU primary law
texts to explicitly include the procedure required for the convening and
holding of a European referendum, as well as its consequences. But which
should be the terms of such regulation?

A first problem is, of course, that of the entity entitled to convene a European
referendum. I believe that such a role should be left to the European
institutions independent of the governments of the Member States, as is the
case with the Commission or Parliament. Considering the ordinary decision-
making process and the role of the Commission as a catalyst for European
regulatory activity, the ideal regulation would assign the initiative to the
Commission, and the right to approve or reject such initiative to the MEPs.
In relation to the ordinary decision-making process, the Council's
participation in such a process should be removed, since the intervention of
the representatives of the Member States could undermine the effort of
obtaining popular legitimacy for the Union.

38 Dehousse, op. cit., supra, note 31, p. 158.

39 Papadopoulos, Buffat, op. cit., supra, note 37, p. 264.
 Romanian Journal of Comparative Law n° 1/2018 289

As far as the organization of the European referendum is concerned, it is

essential that it takes place simultaneously in all the Member States of the
Union. An eventual time schedule including different dates for organizing
the referendum in different Member States would attract the aforementioned
risk of the "domino effect". Also, a delayed vote implies similarities to the
United States primaries, which would means that the citizens of the states
holding the consultation later in the process have a less important vote, as
the final decision is already visible. Last but not least, the simultaneous
implementation of the vote, even if it would impose a significant logistical
effect, would partially remove the character of a "secondary referendum" by
organizing a debate at European level. Even though the main role as opinion
makers will come to all national politicians, citizens will realize that the same
question is being raised at the same time for citizens from all the other
Member States of the Union.

An issue of major impact is that of the topic of the referendum. Previous

experience requires avoiding a complex subject, simplifying it as much as
possible, encouraging greater interest and participation. A risk that should
also be avoided is that of a topic that could attract a conflict between groups
of states. For example, a tax referendum would most likely lead to the
formation of opposite groups of states depending on the level of economic
development. A topic on which similar arguments could be identified in all
Member States should therefore be pursued. In addition, it is important to
set a theme that would allow the consequences of the referendum to be felt
quickly across the Union, leading to the feeling of participating in the
exercise of sovereignty at European level. Finally, the Union must have the
means to ensure the implementation of the results of the referendum, as
leaving implementation to the Member States is likely to result in reluctance
or even opposition from some of the governments of the Member States. Of
course, it is much easier to propose such criteria than to propose models of
topics that could be the subject of a European referendum. However, areas
can be identified in which the option for a particular theme would be more
likely to meet most of the proposed criteria. An example of this may be
environmental policy.

It will also be necessary to establish a European electoral authority with the

role of coordinating and imposing Union-wide procedural rules. Also, all
other elements specific to a referendum, such as the conduct of the pre-
290 ANDREI-RĂZVAN LUPU

election campaign or the control of its funding, should be subject to uniform

regulation and, equally, to a single control.

An important aspect is also that of the quorum and majority of the European
referendum. Although risky, I believe that setting a turn-out quorum for the
validity of the referendum would significantly limit the chances of achieving
its objectives. Of course, it can be shown that making a decision by a
minority would violate democratic principles. Instead, as set out in the Code
of Best Practice on the Referendum adopted by the European Commission
for Democracy through Law,40 setting a quorum for attendance at voting is
likely to assimilate the abstention to a negative vote. In order to
counterbalance the absence of a quorum, the majority required for the
referendum to produce legal effects must be qualified or, in an ideal case,
must follow the pattern of the double majority used for adopting acts in the
Council. Even though such a model would preserve the relevance of the
voter's home state, its imposition may lead to the avoidance of a division
between states with a large population and those with a small number of
citizens.

A last important issue is the effect of the European referendum: should its
results be binding or would it be more useful for the European population to
have an advisory role? I believe that the answer to such a question should
vary depending on the subject of the referendum. Thus, if the object of the
referendum is an act subject to popular approval, the effect can only be a
mandatory one: renouncing or adopting the act in spite of the position
expressed by the population would deprive the European institutions of
democratic legitimacy. Instead, in the case of a referendum on the
orientation of a future policy, the effects of the referendum should rather
generate an aim for the competent institutions, leaving them the option for
the means of achieving it.

6. Conclusions

The proposed configuration for a European referendum is based on a limited

set of criteria, and counterarguments can be found for each of the proposals
made. Any regulation will have to be the result of a fine "constitutional

40Available on-line: http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=cdl-

ad(2007)008-e, last accessed on 23 July 2017.
 Romanian Journal of Comparative Law n° 1/2018 291

engineering" in the sense attributed to the notion by Giovanni Sartori.

Moreover, the previous analysis only considered the situation of classical
referenda on different policies, while referenda on normative acts were
treated only marginally. Also, a completely different hypothesis would be
the possibility of establishing "institutional" referenda, having an effect on
the composition of different European institutions, as is the case with the
referendum on the dismissal of the president in Romania. It is very likely
that the translation of the referendum mechanism into a political structure
with a population of nearly half a billion people will lead to completely
different configurations.
However, beyond its possible configurations, I consider the role of the
referendum on the democratization of a quasi-state entity as essential. As it
has been shown, "in the nation states, the political community has begun to
take shape when citizens have become aware of the local consequences of
national decisions."41 In the case of the European Union, a referendum could
become the means of forming a federal political community, with citizens in
the Member States being at the same time aware of the impact of decisions
taken at supranational level and becoming interested in participating in the
decision-making process.

41 Dehousse, op. cit., supra, note 31, p. 157.

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