Ratification of the Constitution of the EU: A Minefield

Carlos Closa Montero

Theme: On 18 June the Brussels summit gave the go-ahead to the draft Constitution which now moves into its final phase. The text has to be ratified, unanimously, by all Member States through a variety of procedures, so there is still a real possibility of the whole process floundering. This article is a brief survey of the ratification procedures to be employed and the pitfalls that might appear. It also looks at the possible effects on the legitimacy of the Union.

Summary: The agreement reached on the European Constitution by the European Council on 18 June ended the process of drafting the document but by no means ended what could be called the EU’s ‘constitutional policy’. In fact, the most hazardous period for the Constitution begins now, as it can only come into effect once ratified unanimously by the 25 Member States, including Rumania and Bulgaria (whose entry is scheduled for 2007, the same date as the Constitution is supposed to come into force). Ratification will be no pushover, given the variety of hazards that can crop up. The requirement for unanimity shields individual States from the political cost of being responsible for rejecting the document; instead, they can use their voting power as a means of leveraging national interests. More than a ‘social contract’ conferring legitimacy on the Union, the European Constitution risks being interpreted as a response to different, and often conflicting, national ambitions.

Analysis

Parliamentary Ratification

The Constitution should be ratified according to national constitutional requirements (Article IV-8, CONV 86/04)[1], leading to three possible procedures, which might be used alone or concurrently: ratification by parliament, a referendum or constitutional reform. In each case various bodies are directly implicated: political parties, pressure groups, Constitutional courts, etc. In all cases parliament must take at least the first step. Even in those cases in which the EC is handled as an international treaty, with ratification delegated to the executive, such a controversial issue is unlikely to get through with just a government rubber stamp. Some sort of parliamentary debate will have to be held, even if no vote is taken.

Table 1. Parliamentary Ratification Procedures in the Member States of the EU

Parliamentary approval is the main procedure in those countries opposed to or hesitant about holding a referendum, although only three have explicitly refused: Germany, where a proposal to this effect by the liberals of the FDP was turned down even though the opinion polls show that most voters are in favour; Malta and Sweden. In Germany, the Bundesrat can veto any decision taken by the lower house, making it the dominant partner (besides which, no German government is likely to negotiate something that the Länder are known to oppose). Aside from these three countries, a simple parliamentary vote is an attractive option where there is a broad-based consensus; it avoids the unforeseeable consequences of a referendum. This is the case with Greece, where government and opposition are agreed on the issue and where, although the Constitution admits referendums, there is no enabling legislation establishing the procedure and the last one was held in 1974. It is also the case in Finland, where all parties represented in parliament (the Riksdagen) accept the European Constitution other than the Finnish Alliance of the Left and the Christian Democrats, which have not yet taken a stance, and the tiny ‘True Finns’, with one seat, which is adamantly opposed.

A parliamentary decision is even more desirable among those political parties which are keenly aware that previous referendums did not necessarily reflect the opinions of MPs. Both in Malta (where the EC was approved by a narrow majority) and Sweden (where a referendum recently rejected adoption of the euro as the national currency), the EC enjoys broad cross-party support in parliament, guaranteeing ratification of the Treaty. However, there are also cases in which a referendum may be the solution to the lack of support in parliament. For example, the two Czech opposition parties (the Civil Democrats and the Communists) are opposed to the Constitution, meaning that the government might lose a vote in parliament and opt for a referendum instead. Finally, the main parties in both Latvia and Poland opposed the idea of a referendum, but in each case, they are under pressure to hold one. In Latvia, the main opposition party (20 seats out of 100), the Popular Party, has called for a referendum to decide on a Constitution which would open the way to a Federal State, according the Atis Slakteris, party leader, and the possibility of a referendum cannot be ruled out. In Poland in September 2003 the Sjem rejected a motion in favour of a referendum and the two majority parties (the Democratic Alliance of the Left, or SLD, and the Civic Platform, or PO) were opposed. However, doubts have been raised as to the ability of a weakened prime minister to forge a parliamentary majority in favour of the EC, and the parties opposed to it, Justice and Law and the League of Polish Families, have begun to campaign in favour of a referendum.

Referendums on the Constitution and their implications

These cases suggest a subtle shift: whereas in the past the usual choice was for approval by parliament, now referendums have become the favoured means of approving the European Constitution at national level. The reasons are various. The primary one is where this is the legal norm for cases in which the national Constitution is to be reformed. Ireland, which has held a referendum each time a new European treaty has been passed since the Single European Act (SEA), is the leading exponent of this method of ceaseless ratification of changes in the primary legislation of the EU. In the opposite camp, a number of new members interpret that their ‘treaties of membership, approved in referendum, cover the Constitution also. This is the case in Cyprus, Estonia and Slovakia, where there is support for referendums. In Hungary, where no firm decision has been taken, it looks as though a referendum will not be held, while in Latvia, a direct vote will be sought only if the Constitution makes ‘significant changes’ to the government of the EU.

Much has been said on the huge symbolic importance of the European Constitution and on the need to involve citizens in this new social contract. Denmark, where all previous treaties other than Nice have been voted on, is the obvious example, but Spain also comes into this category, although from a diametrically opposed starting point (wide consensus in favour of the EC). The significance of this approach is underlined by the fact that referendums are novelties in two of the eight Member States that have undertaken to hold one: in Belgium (where it will not be legally binding) and in the Netherlands, where it will be the first referendum in Dutch history and where, although the result will not be binding on the government, the latter has undertaken to respect the majority view. In Italy, where a referendum was held to provide a constituent mandate for the European Parliament, there is a widespread feeling that one should be held on the European Constitution, also, but the fact that the Italian Constitution excludes its application to international treaties creates significant ‘technical difficulties’.

Figure 2. Referendums in the European Union