In Search of the Lost Constitution EIPASCOPE Bulletin 2005/1 5 ? EIPASCOPE 2005/2 EIPASCOPE There will be voices urging a re-run of the failed , although this would probably have to wait in all events until the current leaders have gone, which means 2007. Some may also try to use this to kill two birds with one stone. In August, Austrian Chancellor Schüssel – who will have to start formally picking up the pieces during the Austrian Presidency in the first half of 2006, and who has also, like President Chirac, promised that Turkish accession would be subject to a national – seemed to suggest telling French and Dutch voters that the lesson has however, that the Constitutional Treaty is dead in its present form. The period of reflection will almost certainly last several years. What should be done in the meantime

○○○○○ ○○○○○○○○○○○○○○ Professor, Head of Unit "European Decision-Making" – EIPA Maastricht* Professor, Head of Unit "European Decision-Making"

Following the negative results of the French and Dutch referendums on the Constitutional Following the negative results of has called for a "period of reflection" before reviewing the Treaty, the European Council may last several years, but steps should be taken now to situation in 2006. This period The process by which a Convention would draft a respond to what has happened. then be ratified in many cases by referendum, was Constitutional Treaty, which would to the basic rules and procedures of the . hoped to secure public consent reasons why this has not worked: lack of information The referendums highlighted different or misplaced perceptions of what is at stake; perhaps an or understanding; contradicting for issues of this scale and complexity. The next steps inherent unsuitability of referendums give their informed consent to the basic reasons, rules and should aim to allow citizens to to place their trust in representative and other procedures involved, and then A new "permissive consensus" is more appropriate than mechanisms of accountability. details in a Union of half a billion people. Three lines of pursuing "direct democracy" over first is to develop effective communications strategies and action suggest themselves. The few changes foreseen as a educational programmes. The second is to go ahead with a and a "model debate" to demonstration exercise in the logic of European integration EU's provisions concerning engage the public: these could be the transformation of the of parliaments in the EU. Police and Judicial Cooperation in Criminal Matters, and the role mandate by some sort Finally, the idea should be explored of seeking a reasoned popular in each Member , of European Declaration of Principles, adopted simultaneously between and which would serve as a mandate for detailed negotiations subsequent monitoring by national parliaments.

Dr Edward Best, Dr Edward Best, Dr Edward Best, Dr Edward Best, Dr Edward Best, The negative outcomes in France on 29 May 2005 and

Permissive Consensus Permissive Democracy and the Democracy The EU between Direct The EU By Constitution: In Search of the Lost of the In Search in The Netherlands on 1 June have frozen the process of ratification of the Treaty establishing a Constitution for Europe. The European Council on 16-17 June called for a period of reflection before reviewing the situation in the first half of 2006. There is already a widespread feeling, Introduction To lose one ratification referendum is a misfortune which has occurred on two previous occasions in the European Union and has been reversed. To lose two, as has happened in 2005, starts to seem like carelessness, and may not be so easily dealt with. EIPASCOPE Bulletin 2005/1 6 In Search of the Lost Constitution two foundingmembersoftheUnionhavesaidNotoa further dropinturnoutto45.7%.Nowthepopulationsof to theenlargedEuropeanParliamentinJune2004sawa making processesofEuropeanintegration.Thefirstelections of thewholenotioncitizens'participationindecision- been suspended.Toputitbluntly,thecredibilityisatstake the severalcountrieswhereplannedreferendumshave and TheNetherlandsbutacrossthewholeEU,especiallyin have astrongimpactonpublicopinionnotonlyinFrance main reasonfortheNoineithercountry. of Turkeycertainlyaffectedpublicopinion,thiswasnotthe and, althoughnegativeattitudestothepossibleaccession Constitutional TreatywhichconcernsTurkishaccession This isnotagoodresponse.Therenothinginthe presumed tochangeenoughmindspermitratification. been learntandTurkeywillnotbeletin,thisbeing www.eipa.nl ako nomto 32 2 13 4 5 5 4 --- 6 ------14 5 3 --- 2 3 --- 5 --- 3 19 1 18 --- 6 6 --- 5 --- [DK/NA] --- 6 Other 2 5 The Netherlandsmustfirstsettle itsownproblems Opposes president/nationalgovernment/certainpolitical parties 3 6 Influenced bythe"No"campaign 3 --- 8 7 The "Yes" campaignwasnotconvincingenough Lack ofinformation 5 4 5 16 There isnothingonhumanrightsoranimal Europe istooexpensive 5 2 Does notwantTurkeyintheEuropeanUnion 2 Opposition tofurtherenlargement 4 31 The draftdoesnotgofarenough 26 2 I donottrustBrussels 19 Europe isevolvingtoofast This Constitutionisimposedonus The draftgoestoofar/advancesquickly I amagainstEurope/Europeanconstruction/Europeanintegration I donotwantapoliticalunion/federalState/"UnitedStates"ofEurope Loss ofDutchidentity Loss ofnationalsovereignty I donotseewhatispositiveinthistext Too technocratic/juridical/toomuchregulation Too complex Not democraticenough Not enoughsocialEurope I amagainsttheBolkesteindirective Economically speaking,thedraftistooliberal Weak economicsituationincountry Negative employmenteffects What happensnowmattersgreatly.isdonewill and FlashBarometer EB172,TheEuropean Constitution:Post-referendum surveyinTheNetherlands.June 2005. Source: compiled fromdatainFlashBarometer EB171,TheEuropeanConstitution: Post-referendumsurvey inFrance.June2005; (Percentages ofrespondentsindicatingthisasonetheirreasonsforanegativevote) R R R R R easons GivenforV easons GivenforV easons GivenforV easons GivenforV easons GivenforV Reason oting NointheF oting NointheF oting NointheF oting NointheF oting NointheF T T T T T able 1 able 1 able 1 able 1 able 1 1

rench andDutchR rench andDutchR rench andDutchR ○○○○○○○○○○○○○○○○○○○ rench andDutchR rench andDutchR ○○○○○○ offered, finally,astowhatthismightmeaninpractice. .Afewrecommendationsare reliable guaranteesofaccountability)inthemechanisms game –andthenplacetheirtrust(togetherwithsome consent tothebasicreasonsandrulesofEuropean "permissive consensus"bywhichcitizensgivetheirinformed that themainpriorityshouldratherbetoconsolidateanew cipation bycitizensinEUdecisions.Thearticleconcludes regarding thepossibilityanddesirabilityofdirectparti- Beyond this,morefundamentalrethinkingiscalledfor action canbedemonstratedtoprovide"addedvalue". select afewissuesofhighpan-EuropeansaliencywhereEU increase publicunderstanding.Inparticular,oneshould that theEUneedstodevisemoreeffectivecampaigns major treatychange. This articleaimstocontributereflection.Itisargued eferendums, 2005 eferendums, 2005 eferendums, 2005 eferendums, 2005 eferendums, 2005 France 17 21 5 12 32 Netherlands In Search of the Lost Constitution EIPASCOPE Bulletin 2005/1 7 Indeed, 2 " 3 " EIPASCOPE 2005/2 EIPASCOPE Once the Intergovern- Convention. mental Conference even- tually agreed a text in 2004, referendums were promi- sed in nearly half the Mem- ber States, even where they were not mandatory, thus hopefully putting a further seal of democratic approval on a text which would serve as the basic of the en- larged Union in the coming decades. The first results have spoken for them- selves. The Spanish experience appears to expose certain a deeper and wider debate about the future of the debate about the future a deeper and wider There is certainly much more that could have been done " errors or erroneous campaign strategies. Information is, according to the data, a key element in mobilising voters, and in this case it has not been communicated in a valid or efficient manner by the parties and official institutions…[It] shows that in order to mobilise citizens there is a need for sustainable effort in informing and encouraging debate on the Constitution. The European Convention which worked in 2002 and The European Convention which worked It is obviously true that the importance of improving importance of true that the is obviously It " In 2001, the Swedish and Belgian European Union. with the Commission and Presidencies, in cooperation involving will encourage wide- the European Parliament, with all interested parties: repre- ranging discussions parliaments and all those reflecting sentatives of national political, economic and university public opinion, namely etc. circles, representatives of civil society, according to a Eurobarometer survey in June 2003, only according to a Eurobarometer survey even heard of the 45% of respondents across Europe had to make the Treaty comprehensible. The last thing that needed to be done was again to hand out the whole text (even at football matches in the Spanish case). Euro- barometer in fact openly criticised the Spanish efforts. Each Member State and candidate country was encouraged Each Member State and candidate country were certainly made. to carry out a national campaign. Efforts – even if adequate Yet one year was inevitably too short a time in all countries resources and commitment had been devoted change in popular – to bring about any broad and deep of the EU. understanding of the workings and rationale the set of actors 2003 was an innovation in broadening It should also, it was involved in preparing treaty changes. the various efforts at hoped, increase public interest. Yet by one Convention consultation were described later even the lobbies but official as "a 'gallant' failure, which pleased public". failed to get through to the general favour. The main point in all events is that there has been there has is that in all events point The main favour. in communications. a failure European regarding and understanding public interest chooses to hold referendums – especially if one integration agenda high on the formal is not new. It has been about it – home June 1992 first brought the Danish No in ever since old "permissive consensus". Yet little the demise of the achieved. The Nice summit in December seems to have been calling for 2000 adopted a Declaration

○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○ ○ about Europe. All sorts of reasons lay All sorts of reasons A few had nothing to do Treaty but were certainly but were Treaty with Europe. Several had behind the negative votes. behind the negative little to do directly with the ? A common first response to this situation is to lament the Even where the referen- The following sections reflect on these two dimensions The following sections reflect on these Many French, on the other hand, were afraid of the Many French, on Many Dutch objected to the process, merging a Many Dutch objected failure of public campaigns in improving awareness and understanding. In other words, it is assumed that it is not only desirable but possible for most citizens to be able to make an informed decision about the content of a Constitutional Treaty. And it is also assumed, more of less explicitly, that if citizens did understand, they would be in dum results were positive, there were grounds for con- cern. In Spain (as in France) the lack of information also seems to have been an important factor, especially among younger people, but more in shaping decisions whether or not to vote. There was indeed a low turnout (42%) in the Spanish referendum in February, while in Luxembourg, where is obligatory, the Yes vote was only 57% in the referendum held in July. In The Netherlands a lack of information was the single In The Netherlands a lack of information the Treaty. For reason most often given for voting against a source of active many Dutch, this seems to have become People had not resentment at not being taken seriously. of the Euro or the been consulted over the introduction now being asked to enlargement of the Union. They were complex document give their approval to a long and change in the without knowing either what this would would be of not present situation or what the consequences adopting it. More material concerns, notably the fact (well-publicised in the coin- cident debates on the EU's Financial Perspective) that the Dutch are now the highest net contributors per capita to the EU budget, only made things worse by creating the feeling that they are also paying too much for whatever it is they don't know about. Information and interest of the problem, not in order to look more closely at specific of the problem, not in order to look more and France, but to circumstances in The Netherlands one can reframe the contribute to thinking about how best issues next time round. outcome, seeing the Treaty as an excessively liberal threat outcome, seeing the would undermine the (French) social to employment which was, at least in the minds of the Non- model. The main issue choice. sayers, one of policy perception of inadequate information with sensitivities perception of inadequate and identity, as well as a feeling about national The main issue was the felt lack of being pushed around. in in the referendum itself and of meaningful participation, Europe generally. All sorts of reasons lay behind the negative votes (see Table the negative votes reasons lay behind All sorts of had little with Europe. Several had nothing to do 1). A few about but were certainly with the Treaty to do directly different concerns were quite the main Europe. Interestingly, countries. in the two Why did they vote No did they Why EIPASCOPE Bulletin 2005/1 8 In Search of the Lost Constitution information, understandingorsupport. this apparentlackofpopular"interest",ratherthan the EuropeanCouncilofJune2005emphasisedprecisely is adeeperchallengeofprovokingpublicinterest.Indeed understand roughlywhatisgoingonandwhy. of Europeanintegrationwhichmaymakeitpossibleto to explainnotjustaparticularTreaty,butthebroaderissues economic organisationsandsoon–effortswhichtry sustained effortsthrougheducationalsystems,socialand and operationoftheEUcanonlycomeaboutasaresult campaigns. Greaterpublicunderstandingofthenature governments coulddobetterinshort-termpublicity how decisionsareactuallytaken. being lostthroughtoomuchpopularunderstandingasto is muchtoousefulasascapegoatfordifficultpoliciestorisk agreed to)thepresentarrangements."Brussels",however, interest toexplainwhytheyhavenegotiated(andparliaments mixed incentives.Theyshouldhavethedutyaswell sometimes suggestedthatnationalgovernmentsmayhave place inEurope.Itcannotbeamatteroffunding.is when oneconsiderstheimportanceofchangestaking about Europeanintegrationoverthelastfewyears,especially to engagethepublicinanythingresemblingseriousdebate It iseasytofeelthattherehasbeenalackofseriousefforts www.eipa.nl and politicalparties. citizens, civilsociety,socialpartners,nationalparliaments debate totakeplaceineachofourcountries,involving " More broadly,informationissimplynotenough.There Yet thingsarenotsosimple.Itisobvioushow o r o eitrdo h lcoa it 20 21 34 42 39 31 34 Source: FlashEurobarometer 161.European 2004barometer. Vol.1 You are not registeredontheelectoral lists 51 You areagainstEurope, the EU, theEuropeanconstruction 58 You nevervote % Yes You believethatyouwill beheldup,duetotravelling,work,healthetc. 52 You believethattheEuropeanParliament doesnothaveenoughpower You arenotinterestedinEuropeanaffairs 55 You arenotinterestedinpolitics,byelectionsgeneral You arenotinterestedintheEuropeanelections You believethatyouarenotsufficientlyinformedtogovote Your donotfeelyouaresufficientlyrepresentedbytheMembersofEP You donotsufficientlyknowthe You believetheEPdoesnotsufficientlydealwithproblems thatconcernyou You believeyourvotewillnotchangeanything If youdonotgotovote,thiswillbebecause: added) States, mustbeintensifiedandbroadened. whichisalready interest, This periodofreflectionwillbeusedtoenableabroad This debate,designedtogenerate R R R R R easons GivenforF easons GivenforF easons GivenforF easons GivenforF easons GivenforF under wayinmanyMember role oftheEuropean " ailing toV ailing toV ailing toV ailing toV ailing toV (emphasis alaet52 Parliament T T T T T

able 2 able 2 able 2 able 2 able 2

ote inthe2004EuropeanElections ote inthe2004EuropeanElections ote inthe2004EuropeanElections ote inthe2004EuropeanElections ote inthe2004EuropeanElections

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ States only33%. response inEU15was53%andthetennewMember seems tobereflectedinthefactthataveragepositive in generalsomuchlowerthenewerMemberStates to nationalelections. citizens toabstainintheEuropeanelectionsascompared low 2004participationreflectedaconsciousdecisionby except Luxembourg. latest nationalelectionsineverysinglecountryofthe25 2004 Europeanelectionswaslowerthanturnoutinthe of non-participationinEuropeanvoting.Turnoutthe to anyoneofthepoliticalparties gave apositiveresponsetothequestion"Doyoufeelclose European elections,only50%ofrespondentsacrossEU25 actors. Thus,intheEurobarometersurveyon2004 must partlyreflectperceptionsofthenationalpolitical regional) politicalpartiesinEuropeanelections,turnout levels. Sincepeoplevotealmostexclusivelyfornational(or is necessarilyaconnectionbetweenEuropeanandnational citizens isabroaderphenomenon.Italsotruethatthere participation inallpoliticalprocessescomparedtoolder apathy aboutpolitics.Itistruethatthelowerlevelsofyouth Spanish referendum)arepartofabroaderdisillusionand argue thatthelowturnoutsinEuropeanelections(or when itcomestopublicinterest.Itisnotpossiblesimply European affairsdoseemtobespecificallydisadvantaged most plausiblereasonforsuchapathyisthatthescope because theydonotcare.Whyareapathetic are nottheproblem.Oneisforcedtoconcludethatit or thatinstitutionsliketheEPareunimportant.Institutions because theybelievethattheirparticipationisineffective " … thisisnot–asthedeliberativecritiqueimplies 4 Yetoverallthereisanotablyhigherlevel 5 6 Eurobarometeritselfnotedthatthe Whyisthisso ? " Thefactthatturnoutwas ? Somearguethat 23 ? The In Search of the Lost Constitution EIPASCOPE Bulletin 2005/1 9 And what 10 EIPASCOPE 2005/2 EIPASCOPE That kind of genuine All this then became This leads to some 11 the French (and others) per- ceived as excessive libera- lism could be seen in the UK (and elsewhere) as re- taining too many aspects of old-style protection ra- ther than looking to a more competitive future. associated with wrangling over the EU's Financial Per- spective. This had the ne- gative effect of seeming to reduce the debate in public eyes to fights over national self-interest. It also had the potentially positive conse- quence of forcing open discussion as to what the European budget was ac- tually supposed to achieve. towards political union – towards political would produce completely in the opposite reaction more Eurosceptic countries such as the UK. And, as Fritz Scharpf has 12 Constitutions, as Helen Wallace has pointed out, "if they The next reaction may be to point to the striking way in The next reaction may One of the main aims of the recent exercise has been to constitutional agreement still needs to be achieved. are to function successfully, need to be founded on some set of shared values and to express commitment to some form of collective identity." proposed to change procedures. There is virtually nothing virtually There is procedures. to change proposed in economic policies substantive concerning in the text new in the the text goes further affairs. If anything, or social the Workers' its recognition of of social rights with direction undertaking within the and consultation right to information in the bargaining and action, of collective and the Right the second which became Fundamental Rights Charter of part of the Treaty. have highlighted different aspects which national debates only would countries fasten on different of the Treaty. Not to public message which would tend parts of the text. A in some countries – such as to insist increase support in that the constitution was a major step Spain or Belgium that argued: serious reflections and concerns. Many French were voting about what they saw as the results of European integration (whether or not they were actually due to European action or inaction). This is quite understandable. Many of the recent public campaigns to "sell" Europe emphasise the material benefits which are promised to derive from European integration. Yet this is not what the referendum should have been about. obtain broader consent among the peoples of Europe to the basic reasons for which the Union exists and the basic rules by which the Union does things. This is what constitutions are about, not substantive outcomes. Such settlements are necessary precisely because there are differences in preference as to outcomes. "[I]ndividuals may 'agree to disagree' on distributive issues, because they agree on some higher order choice rule."

○○○○○○○○○○○○○○○○○○○ ○ ○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ Yet caution 9 That kind of genuine there are differences in there are differences constitutional agreement This is what constitutions still needs to be achieved. are about, not substantive preference as to outcomes. 7 necessary precisely because necessary precisely to obtain broader consent to to obtain ." the basic reasons for which the the basic reasons for One of the main aims has been One of the outcomes. Such settlements are outcomes. Such settlements Union exists and the basic rules Union exists and the by which the Union does things. by which the Union The main reason 8 of EU regulatory activity tends to be inversely correlated be inversely tends to activity regulatory of EU of European the minds issues in of the importance with issues in European the five most salient voters. Of order, education, law and – health care, societies today – none is policy, and taxes social security pension and an EU competence primarily The first response here may be to lament the apparent There may be some- It is true that only 30% of respondents in France and 26% in France only 30% of respondents It is true that the said that their non-participation in in The Netherlands was due to a belief that their vote would 2005 referendums These, however, were rather specific not change anything. results in which individual votes procedures with visible so At a broader level, it is not at all clearly would matter. this data, at least) that clear (from the Eurobarometer The feeling is unimportant. in July survey published that an 2005 indicates that average of 53% feel their voice "does not count" in the EU. lack of understanding among citizens as to the realities of the EU. If there were threats to French employment and social benefits in 2005 (and there certainly were), they had nothing to do with the Constitutional Treaty, which primarily In France, the main reasons for voting against the Con- stitutional Treaty concerned the economic situation, employment and social rights (see Table 1). Europe seemed to be moving further away from protection, social and commercial, at the same time that it was enlarging beyond the European horizon as seen from France. The "European social model", quite apart from the "Community pre- ference", was at stake. Stakes and choices is required. As the French case has shown, the real issues at stake may not be clear, and there may be disagreements within and between countries about the very nature of the exercise. thing of a dilemma in this respect. Unless there is interest, little effort will be made to understand what is at stake. Unless some- thing important is felt to be at stake, there will be little interest. As Eurobarometer argued, "by insisting on the issues at stake in the European elections and their consequences on daily life, it should be possible to increase participation in elections." given for failing to vote in the 2004 European elec- tions was precisely the belief that participation would be ineffective (see Table 2). This was, however, very clo- sely followed by a feeling that the issues involved were not of primary concern and it remains true that Europe is not widely associated (rightly or wrongly) with the issues of most immediate concern to citizens. 10 EIPASCOPE Bulletin 2005/1 In Search of the Lost Constitution Collignon hasrecentlysuggested,incommon the discourseofshared pushing thingsabit. rope". mon but"specifictoEu- is saidtobenotonlycom- ment andmultilateralism, ture, sustainabledevelop- sed onhumanrights,cul- society". Thismodel,ba- have acommonmodelof mate becauseEuropeans "Political Europeislegiti- The reportproclaimsthat ofRomanoProdi. tomorrow" setupatthe project fortheEuropeof Strauss-Kahn, ChairmanoftheRoundTable"Asustainable example ofsuchattemptswasgivenin2004byDominique Andersen's "three worldsofwelfarecapitalism". different modelsareusually identified,basedonEsping- social structureandnational preferences.Atleastthree models reflectingdeeply-rooted divergencesintermsof appears thatgroupsofcountries haveratherdifferent about employmentandsocial policy.Inthisrespect,it that suchbasicconsensusisuneven,tosaytheleast. or theFinancialPerspectivecaneasilycreateimpression The recentargumentsoverIraq,theConstitutionalTreaty differences". rational, intellectualculturewhichtranscendethno-national understanding ofrightsandsocietaldutiesshared coming togetheronthebasisofsharedvalues,a Weiler hasproposed,beunderstoodincivictermsas"a to pursuesuchavision.AEuropean"demos"could,as based –anditwouldbedangerousintheEuropeancontext A collectiveidentitydoesnothavetobeethno-culturally www.eipa.nl "fundamentally differing socialphilosophies which canbe reflect structural differenceswhich correspond to values whichareuniquelyEuropean accepted standardtoevaluatethem. distribution ofrewards,butsimplythatthereisan imply agreementontheevaluativechoicesor able…Full epistemicconsensusdoesnotnecessarily dimension, policyoptionswouldbeincommensur- pay-offs fromachosenpolicy.Withoutthisepistemic to becollectiveagreementonthevaluesofpotential " Rather thanrelyingon The Frenchreferendumfocused primarilyonconcerns But howfarisitrealisticorappropriatetotryidentify In ordertomakecoherentcollectivechoices,therehas 15 possibility offorminganidentity. geneity ofitsMemberStatesandthusreducesthe increases theethnic,culturalandeconomichetero- difficult tocreatethemastheexpansionofUnion European Union,anditwillbecomemore above thatofthenation-state;theydonotexistin mation ofmajoritydecisionsarenotmetatanylevel tant issues.Theseprerequisitesfortheunitarylegiti- majority decisionsdespitedisagreementoverimpor- all concernedthataminoritycanbeaskedtorespect identity canbepresumedtoexistinprincipleamong " it isonlywheresolidarityonthebasisofcollective Thisissurely 14 values , thekeymaylie,asStefan inappropriate forissuesof this scaleandcomplexity. where nonewasneeded simply furtherevidence what hashappenedis that referendumsare ? Aratherextreme " " 13 For manypeople, 16 evaluations 17 These

:

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ was subsequently postponed. and susceptibility toaYes/Noanswer. That referendum this formulation didnotrespecttherequirements ofclarity however, thePortugueseConstitutional Courtruledthat existing welfarestateinstitutions". major changesinthestructuresandcorefunctionsof fierce oppositionincountrieswheretheywouldrequire desirable". "[U]niformEuropeansolutionswouldmobilize European socialpolicyisnotpoliticallyfeasibleoreven of features. central andeasternEuropemaypresentanotherdistinctset also adistinctive"southern"model,andothersthat continental andNordic.Somehavearguedthatthereis very roughlywithdifferentsetsofcountries–Anglo-Saxon, 'social democratic'politicalparties." war dominanceof'liberal','Christiandemocratic'and roughly equatedwiththesocialphilosophiesandpost- defined bytheEuropeanConstitution voting andthenewinstitutional frameworkoftheEU,as Charter ofFundamentalRights, theruleofqualifiedmajority initially scheduledforApril 2005: "Doyouagreewiththe by proposingthefollowing wordingforthereferendum the wholetextandlookingforspecificagreementtodetails, with acompromisebetweenaskingforgeneralapproval of answer ofyesorno…". terms, andclearlypreciselysoastopermit an single subject;thequestionsshallbeformulatedinobjective Constitution statesthat"Eachreferendumshalldealwith a in whathappenedthistimePortugal.ThePortuguese by referendum. evaluation, suchatextisinthisviewunsuitableforapproval from thechallengeofaggregationalltheseelements choices aboutallsignificantelementsinatext,quiteapart number ofpeoplewillbeabletomakeinformedyes/no complexity. Ifitisunrealistictoassumethatareasonable referendums areinappropriateforissuesofthisscaleand underlying mostpoliticalpartysystems,andcouldthere- which stillrespondtothekindofLeft-Rightcleavages greatest immediateconcerntocitizens.Theyarealsothose the Frenchcase,socialpoliciesareamongissuesof uniform policiesatEuropeanlevel. counterparts tomarketregulation.Wewillnotadopt make useofframeworkdirectivestoprovideappropriate known astheopenmethodofcoordination.Wecould convergence, throughthekindofnon-bindingmechanisms to learnfromeachother,andpromotesomegeneral Many thereforebelieve,likeFritzScharpf,that"uniform This problemwasindeedreflected,evenifsymbolically, This presentsarealdilemma.Aswasmadeclearfrom 20 TheGovernmenttriedtocomeup 19 none wasneededthat further evidencewhere has happenedissimply confusion. sary frustrationaswell such, maycreateunneces- – orletthembeseenas EU level.Topresentthem of meaningfulchoiceat which arenotthesubject may bepreciselyissues cognisable lines.Yetthey public interestalongre- tes tobeusedgenerate fore seemlikelycandida- Wemaytrytocooperate, 18 Theycanbeassociated For manypeople,what ? " InDecember2004, In Search of the Lost Constitution EIPASCOPE Bulletin 2005/1 11 em- . trust In order to think ? EIPASCOPE 2005/2 EIPASCOPE This is in no way meant where this is not war- where this is not ranted. as an argument against parti- promoting citizens' (and cipation in EU affairs in all other public sphe- res). It is a plea to think about how one could power citizens to give their informed consent to the basic reasons, rules and participation of citizens in participation of citizens direct – which is what I mean by a new kind of EU decision-making – while implying that of EU decision-making detail What might this mean in practice There seems little prospect of successfully re-running the There seems little prospect of successfully with the referendums in France or The Netherlands it currently seems same text. Even if this were to happen, in the UK and probable that the treaty would be rejected unlikely that perhaps elsewhere too, since it seems should now be people would accept that the same treaty referendums were ratified without referendums where promised this time. Something has to change. Whatever one's judgement about the suitability of referendums for such issues, it would be unrealistic to propose that no referendums should be held over EU reforms. Quite apart from national traditions, in a few Member States there is a constitutional obligation to hold a binding referendum if constitutional amendment is required. And politically, after all that has happened, there will be strong pressure in many countries to hold referendums on further changes. convince them they are taken seriously. Something should and can be done now as a sort of demonstration exercise in the logic of European inte- gration. Quite apart from the fact that referendums will not go away, people will not forget the failure or suspension of referendums in 2005. In order to create a new permissive consensus, some steps have to be taken at this stage to build that higher-order consensus, and to restore a minimum degree of the In this kind of perspective, the referendums – and the whole – and the the referendums kind of perspective, In this detailed in more directly citizens to involve of trying idea – have not at European level and deliberations decisions could even success. They to be at best a partial only proved not dangerous consequences with potentially be a mistake the broader but also for ratification of treaties only for By trying to of the Union. of popular perceptions evolution not which is not possible as well as achieve something necessary – the informed European democracy depends on the result, the inevitable European democracy an impression of illegitimacy even result may be to create procedures involved pursuing a dream of of "permissive consensus" – instead of of half a billion "direct democracy" over details in a Union people. about possible next steps, one may use the following as about possible next steps, one may starting points. • Treaty in its present form is dead. The Constitutional • Referendums will take place again in the future. • which People expect responses to what has happened This is important now in order to ease the so-called (and probably exaggerated) "constitutional crisis". Looking ahead, it may well seem appropriate in a few years to attempt again an overall simplification/constitutionalisation of the

○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○ So, if it isn't 21 sort of demonstration European integration. can be done now as a can be done exercise in the logic of exercise in the logic Something should and Something ? ? Moreover, it is not necessary for a majority of citizens to Yet one should not exaggerate Europe's political Yet one should not exaggerate understand the treaties and the decision-making processes in detail, nor for there to be direct participation by citizens in political processes, in order for the EU system to be considered reasonably democratic – if appropriate standards are applied. EU action is subject to exceptional checks and balances among multi-level institutions. Democratic over- sight is provided directly by the European Parliament and indirectly by elected national officials in the Council. Non- majoritarian institutions exist in the EU in much the same areas as they do at national level, and are increasingly recognised as providing necessary and legitimate elements of democratic governance, including the role of redressing biases in national representative practices. legitimacy problem, nor try to make too clear a distinction legitimacy problem, nor try to make respect. As noted between EU and national levels in this in European elections above, for example, non-participation from national is partly related to a feeling of distance aware that it is the political parties; and most citizens are peoples who have national governments, parliaments and agreed to the current system. Many citizens may not love the Union but, with the occasional exception of farmers, people do not protest in the streets nor threaten disobedience. On the contrary, they seem to obey rules of European origin just as much or as little as they do domestic ones. So long as the Member States are perceived by citizens as being ultimately in charge, the system as a whole is likely to receive more or less the same degree of loyalty as do national authorities. Conversely, if EU affairs are not felt to be of direct importance, then the EU institutions can get away with quite a lot of popular non-credibility. What to do about it What to do about in results and the low turnout The negative referendum of the low turnout at the last European Spain, coming on top elections, are dishearte- have ning for all those who partici- hoped for a more ap- patory Union. There low pears to be a very inte- level of information, rest and understanding. It is shocking to read in the Eurobarometer released in July 2005 that an average of 51% of people say that they know only a they know little or bit about the EU, and another 19% that the population feel nothing. In other words, a full 70% of choices about that they are unable to make any informed referendum held in the European Union. This was the first to express their The Netherlands, the first chance for people they were in most feelings about Europe – and feelings – and the majority cases, more than informed judgements reaction was "Nee". Looking at the French referendum and surrounding debates, and surrounding French referendum at the Looking was no common there that the impression could get one to be of the document of the implications understanding who voted most of those the issues concerning approved; document; by anything in that altered were not significantly European are not in fact real of those issues and many all. choices at broken, why set out to fix it 12 EIPASCOPE Bulletin 2005/1 In Search of the Lost Constitution procedures involved the fundamentalrulesand your general it who negotiateditand,aboveall,thosearetoexecute responses totwoimplicitquestions:a)doyou of therelevanttext,butatleastintermspositive , notnecessarilyonthebasisofdetailedunderstanding – interestedcitizenswillfeelthattheycansupportsucha procedures. Thechallengeistoensurethat–bytime Union's treatybases,aswellofitsinstitutionsand www.eipa.nl substantive policyareas. Thiswould meanproposing treaty basis oftheNice Protocol.) such areductionwouldinfact betechnicallypossibleonthe reduction ofthenumber Commissioners(eventhough much lessonanoverall"package" agreementthan,say,the question, andbothhaving theadvantageofdepending the potentialtoillustratea differentsideofthegeneral the public.Twocandidatessuggest themselves,eachhaving a sortof"modeldebate"intendeddeliberatelytoengage opposite, namelytouseconsiderationofthesechanges as Croatia. Onthecontrary,aimwouldbeprecisely the changes inthecontextof,say,anaccessiontreatywith picking –thatis,secretivelyslippingthroughafewfavoured here isemphaticallynottoengageinstealthycherry- changes foreseenintheConstitutionalTreaty.Theidea The secondistogoaheadwithasmallnumberof the Tangible changesandmodeldebates lies withnational(andregional)actors. that mostpeopleperceiveEurope,theburdenofthiseffort Europe. Sinceitisthroughthenational(andregional)prism the overalldevelopmentofdemocraticgovernancein of theUnionanditspolicies,butalsoasacontributionto run, notonlytohelpensurethestabilityandeffectiveness about Europeanintegration.Itwillbeworthitinthelong munications strategiesandbasiceducationalprogrammes much moretime,resourcesandpoliticalattentionincom- The first,uncontroversialandalsoundervalued,istoinvest educational programmes Communications strategiesand lines ofactionsuggestthemselves. picture ofwhatisandnotaffected. governance, andtryingtopresentassimplepossiblea explaining thebasicrationaleofEuropeanmulti-level simple divisionofpowers.Onthecontrary,itrequires it certainlydoesnotmeantryingtomovetowardsany gue ofcompetences"and senting asimple"catalo- necessarily meanpre- those rules.Thisdoesnot are potentiallysubjectto substantive sphereswhich cating thescopeof outcomes, butalsoindi- rather thansubstantive rules andprocedures the referendumconcerns king clearnotonlythat ? andb)doyougive One coulddemonstrate alogicofcollective actionin All thisneedstobewellprepared,startingnow.Three This alsoentailsma- consent ? to to buildthathigher-order In ordertocreateanew permissive consensus, be takenatthisstage some stepshaveto restore aminimum consensus, andto degree of trust

those

○ ○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ procedures reach formalagreementsoverdetailedcontentand and rules,withthecontinuingneedforEuropeanstatesto European peoples'givingtheirconsenttobasicreasons today: howcanonerealisticallyreconciletheideaof and respondstoabasicEuro-constitutionalistquestionof The thirdlineofactionwouldineffectbroadenthislastidea, Basic principlesanddetailedagreements the partofallparliamentsandpoliticalparties. benefit ofinvolvinganactiveparticipationinthedebateon applying legislation.Thisissuewouldhavethefurther with theCouncil,Commission'spowersofadaptingand the roleofEuropeanParliamentinoverseeing,together proposals; andontheother,changeforeseenconcerning through therighttogiveasubsidiarity-opiniononlegislative national parliamentsincontrollingrespectforsubsidiarity, responsibility ofnational parliaments inparticular tocheck to negotiatewithin theframeworkagreed, aswellthe an explicitrecognition oftherightnational governments principles, andtryalsotogive reasons.Anditwouldinclude innovations, suchaDeclaration wouldaimathigher-order Constitutional Treatybutinclude themaininstitutional aim, whichwouldbelimited tomostofthefirstPart would thenbeagreedina second stage. which negotiationsshouldtakeplace.Thedetailedrules law, providemutually-agreedpoliticalguidelineswithin would, whilenotbeinglegallybindingunderinternational binding referendumonthesamedayineverycountrywhich national sense.Itshouldbeadeclarationapprovedbynon- not poseasaConstitutioninanythingresembling the declaration ofprinciplesproposedasafirststageshould treaties, butwithsomefundamentaldifferences. The of principles,fromthesetdetailedrulescontainedin the separating a"Constitution",consistingofshortstatement achievement ofsharedobjectives,andaresotoanextent structures andpracticesaredysfunctionalforthe clearly taketheformofargumentstoshowthatexisting in thespiritofsubsidiarity.Proposalsforchangecould debated publiclyasoptionsforcollectiveproblem-solving salience, andwheretheamendmentscanmostclearlybe amendments inanareawhichisofhighpriorityand for subsequentchanges Declaration ofPrinciples,whichwouldserveasaframework mandate ofappropriatelevelbysomesortpan-European In contrasttorecentproposals forashorttextwiththis This wouldessentiallymeanpickinguptheideaof trust ? Couldonenotseekareasonedpopular . ? thened roleforeseenfor the onehand,streng- two mainelements:on loose packageincluding could taketheformofa pean governance.This of parliamentsinEuro- concern thespecificrole Matters. Cooperation inCriminal cerning PoliceandJudicial current provisionscon- transformation oftheEU's candidate isthepossible of jointaction.Anobvious reignty/subsidiarity costs that outweighsthesove- 22 Anothermight In Search of the Lost Constitution EIPASCOPE Bulletin 2005/1 13 . European European Law West European Poli- 40:4 (2005) pp.180- (London & New York: EIPASCOPE 2005/2 EIPASCOPE , April 2004. p.25. Journal of Common Market Studies Three Worlds of Welfare Capitalism Intereconomics ", ? The European 2:2 (1996): 136-155. p. 137. 18:3 (1995): 4-39 p.19. 40:4 (2002): 645-70 p.651. Building a Political Europe. 50 Proposals for the Europe of Building a Political Europe. 50 Proposals Tomorrow. Summary and Synthesis Summary http://www.eiropainfo.lv/files/petijumi DSK_Report_ _EN.doc. Collignon, Gosta Esping-Andersen, (New York: OUP, 1990). Coping with the Fritz W. Scharpf, "The European Social Model: Challenges of Diversity", ibid. pp.666, 651. Article 115(6). Moravscik, "The European Constitutional Compromise" pp.371-373. See Edward Best, "After the French and Dutch referendums: What is to be done 185. Helen Wallace, "Deepening and Widening: Problems of Helen Wallace, "Deepening and Widening: (ed.) Legitimacy for the EC" in Soledad García Identity and the Search for Legitimacy Pinter, 1993): 95-105 pp.100-101. Fritz W. Scharpf, "Democratic Policy in Europe", Journal Franz C. Mayer, J.H.H. Weiler with Ulrich R. Haltern and "European Democracy and Its Critique", tics 15 16 17 18 19 20 21 22 however, a political response must be seen to be given fairly to be given be seen must response a political however, referendums, in the failed has happened after what quickly need to be the next stage proposals for and serious crisis from a really deep now in order to prevent prepared later. :: happening 12 13 14

○○○○○○○○ ○ . (Brus- , 10 Feb- . (London: The Economist Journal of European Post European Elections 2004 Post European Elections 2004 Post European Elections 2004 The European Constitution: post- The Accidental Constitution . The UK Electoral Commission, Euro- Elections in the European Union – A The European Republic. Reflections on the , March 2005 pp. 31, 32. 12:2 (2005): 349-386. p. 374. 16 August 2005. . July 2004. . July 2004. . July 2004. Christiansen and Simon Duke for helpful comments. Christiansen and Simon Duke for helpful ruary 2005. Stefan Collignon, Political Economy of a Future Constitution Federal Trust, 2003) pp. 67,28. Flash Eurobarometer 162, Arguments over the Charlemagne, "The great debate begins. EU constitution remain largely national", survey survey Compro- Andrew Moravscik, "The European Constitutional mise and the neofunctionalist legacy", Eurobarometer 63, July 2005. survey Flash Eurobarometer 162, sels: Eurocomment, 2003) p.50. Referendum Spain Flash Eurobarometer 162, International IDEA, Comparative Overview Public Policy Quoted in Peter Norman, Flash Barometer EB168, EUobserver July 2004. pean Parliamentary Elections Seminar, Cardiff, There is no rush to re-run the referendums nor to rewrite referendums nor rush to re-run the There is no NOTES NOTES 11 9 10 7 8 6 4 5 2 3 * other editors, Thomas The author would like to thank the 1 the Treaties. The Union can survive without a President of survive without a The Union can the Treaties. Time is a new voting system. Council or the European same time, move on. At the to settle down and required from the national perspective that the principles are principles that the perspective the national from respected. NOTES NOTES NOTES