“The Roman carnival is not really a festival given for the people but one the people give themselves. At a given signal, everyone has leave to be as mad and foolish as he likes, and almost everything, except fisticuffs and stabbing, is permissible. The difference between the social orders seems to be abolished for the time being.”  

Goethe, “The Roman Carnival” in Italian Journey.

A common feature of these referendums is that although held nationally – by and in Member States – they addressed issues that were both European and national and were able to influence EU functioning or decision making. Indeed, to date, the European framework does not allow Europe-wide referendums. And while the verdicts of referendums on joining, remaining in, or leaving the EU[1] have been respected, the same cannot be said for referendums on deciding European policy.

Rejections expressed in referendums on European policy have produced two types of reaction from European institutions and other national governments. Either they lead to a partial renegotiation of the measure or the institutional reform concerned (on the points deemed contentious). This slight rewording is usually then put to another vote a few months later, either in another referendum (Denmark in 1992 then 1993, Ireland in 2001 then 2002 and 2008 then 2009) or put to parliament (2005 French referendum rejecting the Treaty Establishing a Constitution for Europe, later replaced by the Lisbon Treaty and ratified by France’s parliament in 2007, or the concessions made on EU bailout terms by the Greek government in 2015, which were approved by a parliamentary majority rather than a second referendum). Or they lead to an explicit rejection of the vote by European institutions in the name of the European treaties. Thus, during negotiations between the Troika and the newly formed Greek government, Jean-Claude Juncker, President of the European Commission – guardian of the treaties – declared on 28 January 2015 that “there can be no democratic choice against the European treaties”[2]. This assertion was borne out six months later in a showdown with the Greek government.

These institutional strategies may appear dishonest or unfair. But are they illegitimate? Do they go as far as to undermine the very democratic principles that the European treaties are supposed to guarantee?

Democratic arguments against referendums

European institutions and national governments use various arguments to justify their opposition to referendum results. Some insist that citizens are unqualified and uninterested in affairs of state or claim that it is hard to ensure that there is a good quality of public debate during the referendum process. But opposition to referendums can also be made on the grounds of democratic legitimacy. Referendums are frequently presented as more legitimate democratic tools because they involve directly consulting the public. However, they only express the majority opinion, and are neither the only nor the most suitable means of coordinating the sovereignty expressed by the people concerned with that of other EU Member States.

There are three types of argument that challenge the supposed democratic superiority of referendums.

First, it is worth remembering that democracy does not only mean rule by the majority, but more broadly respect for the rule of constitutional law. Indeed, in the strictest sense, that is what Jean-Claude Juncker means. Short of rejecting the European political and legal framework in the first place, Member States are expected to follow the European rules by which they have agreed to be bound: “pacta sunt servanda”. If we accept that the treaties underpinning the EU are legitimate, how can we support both the strict respect of constitutions at a national level and their possible infringement at European level by intergovernmental treaties? The question applies as much to referendums on European policies as it does to referendums on joining, remaining in, or leaving the EU. With clear parallels to the Greek case cited above, the Turkish constitutional referendum of 16 April 2017 significantly jeopardised Turkey’s EU accession process because the new judicial system conflicts with the Treaty on European Union (TEU) on several points.

it is not clear that referendums are more legitimate than representative democracy

Furthermore, referendums are only the sovereign expression of one Member State among others. If we consider that each Member State is fully sovereign in matters for which it retains exclusive competence, and that many European policies require a de facto consensus, which itself is the result of often difficult prior negotiations, the sovereign expression of the people of one Member State cannot alone constrain the sovereign expression of other Member States. Admittedly, as treaty reforms are subject to unanimity and each Member State therefore has a veto, ignoring the results of a referendum means disregarding the very letter of the decision-making procedures in place. Nevertheless, refusal to apply existing treaties or collective decisions naturally raises questions, even if such refusal is based on the expression of a sovereign people. Since there is no supranational European democratic will, various national democratic wills (and thus various sources of legitimacy) coexist and can conflict with one another. As the democratic wills of some countries cannot be expressed by referendum because their constitution prohibits this, are they not placed at a disadvantage in European debate? The people of Spain and Luxembourg, having adopted the Treaty Establishing a Constitution for Europe in 2005, did not necessarily appreciate France and the Netherlands, through a similar referendum, challenging their own ratification of this treaty.

Lastly, it is not clear that referendums are more legitimate than representative democracy. Especially since the EU is explicitly founded on representative democracy (TEU, article 10). Considering this, why can’t a national parliament redo what a referendum undid a few months or years earlier? Thus, during his 2007 French presidential campaign, Nicolas Sarkozy made clear that he would not put a new draft treaty to a referendum but would instead put it before parliament. Belgium, on the other hand, has ratified all the European treaties to which it belongs without ever holding a referendum, which the Belgian constitution does not allow. Does this mean that its position carries less weight than that of a country which has put a European treaty or policy to a referendum, and that Belgium must shift its stance as a result?

Democracy and the status quo

These are three serious arguments. They rest on the idea that EU treaties are effectively constitutional texts, and that the EU is in principle a legitimate institutional framework for settling questions of collaboration between Member States.

European institutions and national governments use various arguments to justify their opposition to referendum results

Yet, as the results of these referendums show, a growing number of citizens consulted reject this very premise, feeling they have been disenfranchised of their right to express their scepticism towards this framework. Why strike a balance between the expression of the people and respect for European treaties if that expression, regardless of the rule of law, is not considered to be fundamental law that binds political institutions? Why worry about the reaction of Member States if it is believed the country is destined to remain inextricably tied to the European institutions? Finally, the decision to sidestep referendum results by going through parliament, legitimate as this may be, can be judged even more harshly by citizens engaged in referendum debate as it confirms the increasingly widespread belief that national legislatures are simply there to rubber stamp decisions taken at the European level. So, when Jean-Claude Juncker says there is no democratic choice outside of European treaties, he seems to obscure the fact that citizens use referendums precisely to protest against the status quo; not necessarily to protest against the European idea, but rather the EU’s current political regime or policies.

Whether through this protest nature or the reactions they provoke at European level, the referendums cited above play a carnival role. Inspired by the reversal rituals of classical antiquity[1], carnival is the ultimate popular festival. In a limited time and space, carnival allows the social hierarchy to be reversed according to codified rules and by guaranteeing the eventual return and maintenance of order.

 

[1] During Roman Saturnalia, masters and slaves would swap roles for a pre-determined amount of time.

[2] We cite the Swiss (1992) and Norwegian (1972 and 1994) rejections of European Communities (EC) membership, the French referendum authorising membership of new states to the EC in 1972, the British referendums for remaining in (1975) and then leaving (2016) the EC and the EU respectively, the referendum on Greenland leaving the EC (1982), as well as the referendums in favour countries joining the EC or EU (Denmark and Ireland in 1972, Sweden in 1994, Croatia in 2012).

[3] Le Figaro, 28 January 2015.