EUROPEAN MONOGRAPHS
The European Constitution and
National Constitutions
Ratification and Beyond
Editors:
Dr Anneli ALBI, Lecturer in EU Law at the University
of Kent, UK
Prof. Dr Jacques ZILLER, Professor of European Public
Comparative Law, European University Institute
(Florence) and University of Paris 1
Panthéon-Sorbonne
Table of Contents
Chapter 1
Introduction: The European Constitution and National Constitutions
in the Context of ‘Post-national Constitutionalism’
Anneli Albi
1.
2.
3.
4.
5.
6.
Introduction: Constitution, State and Post-National Constitutionalism
Outline of the Book
A Treaty or a Constitution?
Referendums
Supremacy
Amendment of National Constitutions in the Light of ‘Multilevel’
or ‘Intertwined Constitutionalism’
Part I Ratification of the Constitutional Treaty and its Impact
on National Constitutions
1
1
4
5
10
13
13
15
Chapter 2
Ratification of the European Constitution in Lithuania and its Impact
on the National Constitutional System
Irmantas Jarukaitis
17
1.
2.
17
18
Introduction
The Constitutional Act on the Membership of Lithuania in the EU
vi
3.
4.
Table of Contents
Ratification of the TCE in Lithuania
The TCE and the National Constitution
22
24
Chapter 3
Ratification of the European Constitution in Hungary:
Problems and Challenges
Jenö Czuczai
29
1.
2.
3.
4.
5.
29
30
33
35
37
Introduction
The Ratification Process in Parliament and the Issue of a Referendum
The ‘Reservation’ on Minority Rights in the Ratification Act
Challenges Concerning the Impact of the TCE in Hungary
Conclusions
Chapter 4
The Ratification of the European Constitutional Treaty in Italy
Marta Cartabia
1.
2.
3.
4.
Ratification as a Matter of Speed in Italy
Article 11 of the Italian Constitution and the Procedure for the
Ratification of European Treaties
The Consultative Referendum of 1989 on the European Constitution
and the Need for a Constitutional Procedure
The Main Issues in the Parliamentary Debate
Chapter 5
Spain’s Ratification of the Treaty Establishing a Constitution for
Europe: Prior Constitutional Review, Referendum and Parliamentary
Approval
Pablo Perez Tremps and Alejandro Saiz Arnaiz
1.
2.
3.
4.
Introduction
The Political and Constitutional Framework
The Ratification Process
3.1 Constitutional Court Declaration No. 1/2004 of 13 December
2004
3.2 The Referendum of 20 February 2005
3.3 Parliament’s Approval of Organic Law No. 1/2005 of 20 May
2005, Authorizing Spain’s Ratification of the European
Constitutional Treaty
The Pending Questions
39
39
40
42
43
45
45
46
49
49
52
53
54
Table of Contents
vii
Chapter 6
Germany and the EU Constitutional Treaty
Rainer Arnold
57
1.
2.
3.
4.
5.
Parliamentary Consent to the Treaty Establishing a Constitution
for Europe
Constitutional Review of the Act on Approval of the EU TCE
The Main Political Debates in Germany Regarding the European
Constitution
Academic Debates on European Constitutional Law in Germany
Supremacy of Community Law and the Federal Constitutional Court
Chapter 7
Belgium: The Lock-through System
Francis Delpérée
1.
2.
3.
The Making and Incorporation of the Treaty Establishing
a Constitution for Europe
Review of Constitutionality
The Nature of the Treaty Establishing a Constitution for Europe
Chapter 8
Ratification of the European Constitution in Estonia: A New
Constitution for Estonia?
Julia Laffranque
1.
2.
3.
4.
Overview of Relevant Constitutional Provisions and Debates in
Estonia
Conclusions of the Expert Working Group set up by Parliament:
a post mortem Expertise?
Deliberations at Parliament and the Issue of Referendum
The Role of the Supreme Court
Chapter 9
The European Constitution in the Far North, in a Country
Called Suomi
Tuomas Ojanen
1.
2.
Introduction
The Constitutional and Political Context Concerning the European
Constitution
57
58
59
60
64
67
67
71
75
79
79
81
84
85
89
89
90
viii
Table of Contents
2.1
2.2
3.
4.
5.
Constitutional Law Background
The Political and Social Context Concerning the Discussion
on the European Constitution and EU Membership in Finland
The European Constitution and its Relation to the Constitution of
Finland
3.1 The Nature and Content of the European Constitution
3.2 The Relationship Between the European Constitution and
the Constitution of Finland
Referendum
The Relationship Between European Constitutionalism and Finnish
Constitutional Law
Part II Obstacles to the Ratification of the Constitutional
Treaty and Issues for National Constitutions
Chapter 10
French Reactions to the Treaty Establishing a Constitution for Europe:
from Constitutional Welcome to Popular Rejection
Jacques Ziller
1.
2.
3.
4.
5.
6.
7.
Introduction
French Participation in the European Convention and in the IGC:
a Strong but Unfocused Presence
The Decision of the Conseil Constitutionnel on the Ratification of
the Treaty Establishing a Constitution for Europe
Intermezzo: French Politics and the TCE – the Internal Referendum
in the Socialist Party
Preparation for Ratification of the TCE: Amendments to the
Constitution
French Rejection of the TCE: the Referendum of 29 May 2005
The Next Steps
90
93
95
95
97
97
98
101
103
103
104
106
108
109
110
112
Chapter 11
The Dutch Constitution, the European Constitution and
the Referendum in the Netherlands
Leonard Besselink
113
1.
2.
3.
4.
113
114
115
116
Two Types of Constitution
The Constitution of the Netherlands
The Present Constitution and Europe
Politics and Europe
Table of Contents
5.
6.
7.
8.
9.
The Referendum
After the Referendum: The Popular Response
The Constitutional Explanation
The Response in Politics
The Future of the European Constitution
Part III Adjournment of the Ratification of the Constitutional
Treaty: Wait and See?
ix
117
118
120
121
122
125
Chapter 12
The United Kingdom: A Tragi-Comedy in Three Acts
Clive Church
127
1.
2.
3.
4.
5.
6.
7.
127
128
130
132
133
134
135
Introduction
The Constitutional Scenery
Act I: Prior to March 2004
A referendum entr’acte
Act II: April 2004 – May 2005
Act III: Since June 2005
Continental Comparisons
Chapter 13
Ratification of the European Constitution – Implications for Ireland
Gerard Hogan
137
1.
2.
3.
4.
5.
6.
7.
137
138
140
141
142
144
147
Introduction
The Irish Constitution
The Crottycase (1987)
The Treaty of Amsterdam
The likely political issues in the Irish referendum
The supremacy of the European Constitution
Conclusions
Chapter 14
Denmark’s Waning Constitutionalism and Article 20 of the
Constitution on Transfer of Sovereignty
Hjalte Rasmussen
149
1.
2.
149
153
Article 20 and Constitutional Amorphousness
Referendum Prophesies
x
3.
4.
Table of Contents
Other Issues Regarding the Relationship Between the TCE and
Danish Constitutional Law
From Constitutionalism to a ‘Negotiational Democracy’?
Chapter 15
Ratification Without Debate and Debate Without Ratification:
the European Constitution in Slovakia and the Czech Republic
Zdenek Kühn
1.
2.
3.
4.
5.
6.
The Legal and Constitutional Framework
Doctrinal Discussions on the Nature of the Treaty
Political Debates in the Czech Republic and Slovakia
Czech Referendum Debate and the Parliamentary Ratification in
Slovakia
Constitutional Courts
5.1 The Czech Constitutional Court
5.2 The Slovak Constitutional Court
The Situation in Early 2006
Chapter 16
The Polish Constitution, the European Constitutional Treaty and
the Principle of Supremacy
Adam Lazowski
1.
2.
3.
State of Play in Ratification of the European Constitution in Poland
The Principle of Supremacy and Surrender Procedures in the
Jurisprudence of the Polish Constitutional Tribunal
Conclusions
154
155
157
157
159
162
164
166
167
167
168
171
171
173
180
Chapter 17
Sweden’s Possible Ratification of the EU Constitution: A Case-study
of ‘Wait and See’
Joachim Nergelius
183
1.
2.
3.
183
185
188
General Constitutional Background
The Swedish Handling of the Proposed EU Constitution
Theoretical Issues Regarding the European Constitution
Table of Contents
Chapter 18
A View from a Candidate Country: Implications for Croatia of (Non)
Ratification of the Treaty Establishing a Constitution for Europe
Siniša Rodin and Tamara Ćapeta
1.
2.
3.
4.
Introduction
The Nature of the Union’s Constitutional Order
2.1 The Fragmentary Substance of the European Constitution . . .
2.2 . . . and the Relevance of the Form
Constitutional Issues of Croatia’s EU Membership in the Shadow
of the Treaty Establishing a Constitution for Europe
3.1 Is There a Need for Constitutional Amendment Before
Accession?
3.2 The Croatian Constitution and the Problem of Referendum
Conclusions
Part IV Ratification in Light of the Nature and Content of the
Constitutional Treaty and the Instrument of Referendum
Chapter 19
The Treaty Establishing a Constitution for Europe: Some General
Reflections on its Character and Prospects for Ratification
Jürgen Schwarze
1.
2.
3.
4.
5.
6.
Introduction
A Treaty Establishing a Constitution for Europe: The specific
nature of the Treaty
The Content of the Constitutional Treaty
Difficulties in the Ratification Process
Prospects for the Treaty
Conclusion
Chapter 20
Institutional Changes in the Constitutional Treaty – A Reason for
Its Rejection?
Peter-Christian Müller-Graff
1.
Developments Regarding the Overall Institutional Setting
1.1 Overall Institutional Setting
1.2 New Institutional Elements
xi
189
189
190
191
192
193
194
197
199
201
203
203
204
205
206
210
212
215
215
216
217
xii
2.
3.
4.
Table of Contents
Modifications in the Functions of the Institutions
2.1 Basic Continuity in Specific Functions
2.2 Gradual Developments in Abstract Functions
Novelties in the Composition of the Institutions
Concluding Remarks
Chapter 21
The European Constitution and the Role of National Parliaments:
Hard Law Language, Soft Content
Philipp Kiiver
1.
2.
3.
4.
Introduction
National Parliaments in the European Union
The Constitutional Treaty and the National Parliaments
3.1 Article I-46: an Honourable Mention
3.2 Information and Notification Facilities
3.3 A timeframe for Scrutiny
3.4 The Early Warning System for Subsidiarity
3.5 Simplified Treaty Revision: The Passerelle Veto
3.6 Ordinary Treaty Revision: The Convention Method
Conclusion
Chapter 22
The European Constitution and the Role of National
Constitutional Courts
Monica Claes
1.
2.
3.
4.
Introduction
The Persisting Areas of Contention
What Solutions Would the Constitutional Treaty
have Brought?
3.1 A Treaty or a Constitution?
3.2 The Principle of Primacy in Article I-6
3.3 The Charter of Fundamental Rights
3.4 Kompetenz-Kompetenz Remains Unresolved
3.5 The Disappearance of the Pillars
Non-ratification and the Judicial Constitutionalization
of Europe
217
218
218
220
221
223
223
224
226
226
227
229
230
232
233
234
235
235
236
241
241
242
243
245
246
246
Table of Contents
xiii
Chapter 23
Reconciling Widening and Deepening: Enlargement as a Vehicle to
Break the Union’s Constitutional Deadlock
Steven Blockmans
249
1.
2.
3.
4.
5.
6.
Introduction
Absorption Capacity of the EU
Enlargement as a Casualty of the Constitutional Crisis?
‘Privileged Partnerships’
Reconciling Widening and Deepening: Can Widening Save
Deepening?
Obiter: Revised Procedure for Accession Negotiations
Chapter 24
National Referendums in the Process of European Integration:
Time for Change
Andreas Auer
1.
2.
3.
4.
Introduction
National Referendums on European Issues
2.1 Legal Nature
2.2 Statistics
The Three Categories of EU-Related National Referendums
3.1 Accession Referendums
3.2 Integration Referendums
3.3 Enlargement Referendums
Three Steps Forward
Chapter 25
Electorates v Politicians: The 2005 French and Dutch Referendums
on the EU Constitutional Treaty
George Tridimas and Takis Tridimas
1.
2.
3.
4.
Introduction
Progress Towards Ratification of the EU Constitution
The Merits of a Referendum as a Method of Ratification
of the Constitution
Explaining Why the Referendum and the Parliamentary
Outcomes Differ
4.1 Incomplete Information
4.2 Aggregation of Voter Preferences
249
250
251
253
255
257
261
261
262
262
263
264
264
266
268
269
273
273
274
277
279
280
280
xiv
Table of Contents
4.3
5.
Differences in the Interests of Voters and Politicians
4.3.1. Power Against Non-members
4.3.2. Power Against Domestic Opposition
4.3.3. Patronage and Personal Gains
4.3.4. Shifting Blame
4.3.5. Spreading the Costs of Targeted Policies
Conclusions
281
282
283
283
284
284
285
Chapter 26
Conclusions
Jacques Ziller
287
1.
2.
3.
4.
5.
287
288
290
292
293
A Pause for Reflection
Referendums and Ratification
Other Impediments to Ratification
No Pause in the Ratification Process
Intertwined Constitutionalism and Supremacy
Appendix: Table of Countries
297
Table of Statutes
301
Table of Cases
305
Chapter 11
The Dutch Constitution, the European
Constitution and the Referendum in
the Netherlands
Leonard F. M. Besselink*
This contribution develops a constitutional understanding of the ‘No’ vote in the
referendum on the Constitutional Treaty (TCE) in The Netherlands. In order to
arrive at such an understanding, it is first necessary to understand the nature, character and the concept of the constitution with respect to the constitutional history
of The Netherlands. The contribution will outline the nature of the current formal
Constitution of the Dutch Kingdom with regard to European integration. Against
this background, the legal nature of the referendum is examined, before reflecting,
in the final parts, on the meaning of the ‘No’ vote in constitutional terms.
1.
TWO TYPES OF CONSTITUTION
Schematically, there are two main types of constitution in Europe into which individual constitutions could be classified. The first are the constitutions of the ‘historic’ type, comprising the ‘old-fashioned’, historically incremental constitutions
which are mostly long-term constitutions. They are often older than the French
*
Professor of European Constitutional Law, Jean Monnet Chair, Faculty of Law, University of
Utrecht.
A. Albi and J. Ziller, The European Constitution and National Constitutions:
Ratification and Beyond, pp. 113–123.
© 2007, Kluwer Law International. Printed in the Netherlands.
114
Leonard F. M. Besselink
Revolution, and in pertinent cases, take this revolution to be one of many political
events to be incorporated into a broader constitutional framework. These constitutions tend to incorporate various political and social changes and experiences, even
where these are relatively dramatic, at least in the short-term; these constitutions
are non-formalistic and they are at least as much political in nature as legal. The
formal constitution does not constitute political reality – conversely, the reality of
the political order determines the constitution. Hence, there is no great need or
urgency to trace a historically ‘original constitution’ because it is the evolution, not
the original intent or the original circumstances, that determines its meaning. The
archetype of this type of constitution is the British Constitution, with the constitutions of the Nordic countries (at least before their revisions towards the end and at
the turn of the 20th century), Switzerland and the European Union also falling into
this group.
The second type of constitution is of a ‘revolutionary’ character. The constitutions belonging to this group tend to have their origin in a revolutionary event,
a political or social cataclysm which forms the ‘moving myth’ inspiring the constitution. They are found at the basis of, for instance, the liberté, égalité, fraternité
in France, and the Nie wieder in Germany. These constitutions have a blueprint
character; they tend to be designed from a clean slate, as under the circumstances
in which it originated one wishes to consign the past to history and design a new
future. The intention of the (formal) constitution is to constitute the political reality, not the other way around. Obviously, the ‘original’ constitution is important in
terms of establishing an overall understanding of these constitutions, and as soon
as there is a ‘new’ formal constitution, a new political order is constituted. The
‘revolutionary’ constitutions tend to have a strongly legal character, demonstrating
enforceability in (some kind of) courts of law. These courts have a constitutional
function not only in theory but also in practice. Examples of countries with this
type of constitution are Ireland, Germany, Italy, France and the USA.
2.
THE CONSTITUTION OF THE NETHERLANDS
The Constitution of The Netherlands is of the first, ‘historic’ type. There is no
agreement on the question of whether the present Constitution of The Netherlands,
Grondwet van het Koninkrijk der Nederlanden, originates from the Constitution
of 1814 or 1815. However, this does not matter a great deal, since the present
Constitution is entirely different from both the Constitution of 1814 and that of 1815.
In order to understand some of the fundamental features of the present Constitution
and the constitutional culture of The Netherlands, it is more instructive to take
a long-term perspective, taking into account the more than two centuries during
which The Netherlands was a Republic.1
During this Republic, The Netherlands was a world power, with the 17th century representing the Golden Age in terms of economics, politics, art and other
1.
Somewhere towards the latter quarter of the 16th century until 1795/1798.
Dutch Constitution, the European Constitution and the Referendum
115
forms of culture. The constitution was fairly unique, although contemporary literature compared the document to those of biblical Israel, Venice and Switzerland.
The Constitution was, at least formally, confederal in nature: although there was
a constitutional document in the form of the treaty of alliance called the Union of
Utrecht of 1579, the constitutional practice was more important than the letter of
that text.
This was most conspicuous with regard to the role played by sovereignty.
The official doctrine of the period held that the seven provinces, which together
made up the United Republic, were sovereign. This sovereignty was not located
in any particular institution other than the ‘States’, which was the name of the
parliament in each province. The States-General of the Federacy were composed
of various delegations from the provinces, which acted under full instruction from
their provincial States. At the federal level – the ‘Generality’ or ‘Federacy’ – there
was neither sovereignty nor a sovereign; the country did not manage to find a
successor to King Philip II who was abjured at the end of the 16th century because
he was, so to say, too much of a sovereign lord – so the country did without one.
There was indeed a surrogate replacement within each province, the stadholder,
literally a locum tenens or governor, but he enjoyed no sovereignty and never carried
the title of ‘sovereign’ or any equivalent title. This office tended to be filled, with
the exception of the province of Frisia until 1747, by the Prince of Orange who was
the successor to the father of the fatherland, William of Orange. And at times when
the Prince of Orange was considered unsuitable, the politically and economically
hegemonic province of Holland and Zeeland did without him: altogether there was
no stadholder there for more than seventy years during the two centuries of the
Republic (1650–1672 and 1702–1747).
Having experienced centuries in which one could do without {sovereignty/
a sovereign}, it was difficult to get used to claims of sovereignty for the overarching
polity. Some of the failure of the Batavian republic, and of the French rule between
1798 and 1813, must be attributed to this. Additionally, it accounts for the near
absence of a meaningful theory of sovereignty in the Dutch constitutional theory
and practice throughout the 19th and 20th centuries. The absence of such a theory
of sovereignty is, in my view, important in understanding the Dutch constitutional
attitude to Europe.
3.
THE PRESENT CONSTITUTION AND EUROPE
The Constitution states in Article 94 that self-executing provisions of treaties, and
also those of decisions of international organizations, overrule conflicting provisions of national law.2 These provisions of national law that may be overruled
2. Art. 94 Constitution provides that ‘Statutory regulations in force within the Kingdom shall not
be applicable if such application is in conflict with provisions of treaties or of decisions by
international organizations under public international law, which can bind everyone’.
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Leonard F. M. Besselink
are usually taken to include those of the Constitution.3 Hence, the majority of
authors hold that self-executing provisions of treaties and of decisions of international organizations have supra-constitutional status, with this priority being usually
understood in the doctrine in hierarchical terms.4
In this respect, the Constitution of The Netherlands has been since 1953 well
disposed towards European integration, by taking an approach that can be said to
substantively coincide with that developed by the European Court of Justice in
Van Gend en Loos,5 Costa v. ENEL6 and Simmenthal (II)7 .8 Articles 93 and 94
of the Constitution were geared towards European integration in the framework
of the E(E)C and EU. During the general revision of the Constitution in 1983,
Parliament and the Dutch Government explicitly reconfirmed their applicability to
EC law. It is somewhat paradoxical that while The Netherlands had a Constitution
which was so well prepared for the supranational character of EC law, a majority of
authors in the field of constitutional law held that EC law had direct effect, primacy
and superiority per se, that is to say even beyond and quite independently of the
constitutional provisions on the status of treaties and of decisions of international
organizations (praeter constitutionem). This view was also adopted by the penal
chamber of the Dutch Supreme Court (Hoge Raad ) in a laconic judgement in
November 2004.9
4.
POLITICS AND EUROPE
The political elite in The Netherlands has always favoured European integration.
Although there have been parliamentary objections to the democratic deficit and the
3. Art. 91(3) of the Constitution provides that ‘If a treaty contains provisions which depart from the
Constitution or which lead to such a departure, it may be approved by the Houses only with at
least a majority of two-thirds of the votes cast’. However, this latter provision has not been used
in approving the EC/EU Treaties and their amendments. These two provisions, read together, led
a minority of authors to suggest that if the procedure of Art. 91(3) of the Constitution has not been
followed, courts are not at liberty unilaterally to override a provision of the Constitution. After
all, by not following the procedure of Art. 91(3), Parliament and Government have declared that
there is no incompatibility between the Constitution and the Treaty. This is so due to Art. 120
of the Constitution, according to which ‘Courts shall not review the constitutionality of Acts of
Parliament and treaties.’
4. One of the few notable exceptions is C.A.J.M. Kortmann, Constitutioneel Recht (5th edn, Deventer, Kluwer, 2005), p. 364. He has not expounded on this view, which is remarkable given its
relative minority position.
5. Van Gend en Loos, Case No. 26/62 [1963] ECR 10.
6. Costa v. ENEL, Case No. 6/64 [1964] ECR 585.
7. Simmenthal, Case No. 106/77 [1978] ECR 629.
8. Incidentally, the same person who, as a Member of Parliament, introduced an amendment to
the Constitution incorporating the present Art. 94, was the first President of the European Court
of Justice, Mr Serrarens. The next President of the ECJ, A.M. Donner, was a member of all
committees which prepared this and other relevant constitutional amendments, particularly the
one of 1956 which specified the parallel to the doctrine of direct effect in EEC law; Donner was
President both when the decisions in Van Gend en Loos and Costa v. ENEL were delivered.
9. Hoge Raad, 2 November 2004, NJ 2004, 156, to be found under nr LJN: AR1797 at <www.
rechtspraak.nl>, 28 April 2006.
Dutch Constitution, the European Constitution and the Referendum
117
lack of democratic accountability for decisions made by the Communities since the
time of the adoption of the ECSC Treaty, no anti-Europe groups of any significance
have existed. The only exception was the Communist Party, which disappeared
during the second half of the 1980s, though it has now found something of a
successor in the SP, a populist leftist party10 which has a consistent anti-European
programme and was quite effective during the referendum campaign.
Factors that contributed to the international orientation of The Netherlands are
the geographic position of the country in the delta of the Rhine and Meuse rivers,
with major North Sea harbours, which has greatly favoured trade since the 16th
century. Commercial interest has always been synonymous with international interest; the open economy has meant a high dependence on the international economy
and international trade. International co-operation has therefore always been to the
advantage of the Dutch. European integration has never been viewed as a ‘zerosum game’, as the sovereignist language of Van Gend en Loos and Costa v. ENEL
suggests, with its articulation of the idea of transfer of sovereignty from the Member States to the EEC. In The Netherlands, European integration has been viewed
as much more favourable than a zero-sum game.11 And yet, the ‘Constitution for
Europe’ was rejected in the consultative referendum.
5.
THE REFERENDUM
The referendum of 1 June 2005 on the Treaty Establishing a Constitution for Europe
was the first national referendum held in the European part of The Netherlands in
hundred years,12 although the referendum was consultative in nature rather than a
binding one. It was consultative inasmuch as the legislature took the initiative to
consult the electorate on its opinion concerning the Constitution for Europe.
The consultative nature of the referendum had one far-reaching consequence:
it preceded political decision-making on the European Constitution. The Treaty
was submitted to Parliament, but its scrutiny and all parliamentary debates were
10. This is short for Socialistische Partij, but the full name is no longer used by the party, which has
reneged on its originally Maoist inclinations. The party holds 9 out of 150 seats in Parliament,
but is more strongly represented at local level.
11. However, international co-operation should extend also beyond the EU: the maritime interest
makes The Netherlands Western-oriented – and so has been its politics. This has meant for
the Dutch foreign policy that European integration and an Atlantic orientation were viewed not
merely as reconcilable but as a high priority. Nowadays this orientation spills over into a broader
concept of international trade co-operation, in particular through the WTO.
12. There have been several referendums in the overseas territories, in particular on the islands of
The Netherlands Antilles, concerning the future status of these territories. To understand why
there have previously been no national referendums, one needs to know that The Netherlands
was a country of religious and political minorities for centuries: since the end of 19th century
until the 1960s it was a pillarized society, with a very strong civil society, in which the political
elites of the various denominations met at the apex of the political system in order to broker
political compromises that could not be determined on the basis of numbers only. This increased
the importance of the representative nature of democracy, in which single issues could not
predominate the decision-making for the risk of stalling the system.
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Leonard F. M. Besselink
postponed until after the referendum. As a consequence, political parties had not
seriously debated the question whether to approve the text submitted for approval, or
indeed responded in any articulate manner to the Government’s defence of the text
in the Explanatory Memorandum attached to the Bill for approval. A political debate
within and between political parties, an overwhelming majority of whom were in
favour of the text, could have clarified the strengths and weaknesses of the proposed
Constitution in a representative manner, through politicians. Lack of necessary
information was found to be a problem by 56 per cent of the electorate before
voting, according to one opinion poll; for those who did not vote, this percentage
was even higher at 62 per cent. The largest single explanation given by ‘No’ voters
in this poll was the lack of information (32 per cent).13
The referendum was not legally binding because it was argued that the Constitution makes the approval of treaties a matter for Parliament alone. This argument is
analogous to the general opinion that legislation can, according to the Constitution,
only be decided by Parliament and Government together, and therefore cannot be
made dependent on a referendum. Moreover, a binding referendum would conflict
with the representative nature of the political system enshrined in the Constitution.
The Constitution thus locates decision-making on Treaty approval in Parliament
(together with the Government), and not in the electorate as such.14 This legalist
approach taken in the run-up to the referendum was hiding a practical truth – no
legislature could afford to ignore a ‘No’ of a vast majority of the voters in a referendum, particularly since this referendum had a much higher turnout than the
European Parliament elections. On 1 June 2005, about 63 per cent of the electorate
cast a vote, and nearly 62 per cent of the voters answered ‘No’ to the question
whether the Kingdom of The Netherlands should approve the Treaty Establishing
a Constitution for Europe.
6.
AFTER THE REFERENDUM: THE POPULAR RESPONSE
It is still difficult to say definitively why voters voted against the Constitution –
they seem to have done so for a number of different reasons. A Eurobarometer
13.
Eurobarometer, Flash Eurobarometer 172, The European Constitution: post-referendum survey
in The Netherlands. [Fieldwork: 2–4 June 2005, Publication: June 2005], European Commission,
pp. 6 and 15.
14. The analogy is not decisive. Whereas Art. 80 of the Constitution stipulates: ‘Acts of Parliament
shall be enacted jointly by the government and the States General,’ Art. 91(1) and (2) of the
Constitution provide the following: ‘1. The Kingdom shall not be bound by treaties, nor shall
such treaties be denounced without the prior approval of the States General.. . . 2. The manner in
which approval shall be granted shall be laid down by act of parliament, which may provide for
the possibility of tacit approval.’ So it mentions only Parliament (the States General), and leaves
it to an act of Parliament to stipulate the particulars of parliamentary approval. In reality, this
act has made express treaty approval dependent on the adoption of an act of Parliament – that
is to say, not only the consent of Parliament is required, but also that of the Government. This
being so, it is not apparent why an act of Parliament could not allow for a binding referendum.
Dutch Constitution, the European Constitution and the Referendum
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opinion poll has analyzed the responses as to what people said about their own
voting behaviour.15 The outcomes of this opinion poll may be unconvincing on some
scores, but they are revealing on certain others. Other quick polls were conducted,16
and the Government commissioned an in-depth research in ‘focus groups’, with
four selected groups of ‘No’ voters, two groups of ‘Yes’ voters and two control
groups, each made up of average citizens. The aim of these was to find out how
to respond to the public debate on ‘Europe’, and gain a clear insight into motives
of both the ‘No’ and ‘Yes’ voters.17 The outcomes of these polls and research
efforts diverged on a number of issues, the most significant divergence being the
Eurobarometer’s estimate of the role played by the potential accession of Turkey to
the EU, with only 3 per cent of the ‘No’ voters indicating this as their reason. This
result contradicted certain other polls, and it also seems to be somewhat at odds with
anecdotal evidence. For example, a poll conducted on the day of the referendum,
asking whether the accession of Turkey played a role, found 22 per cent of the ‘No’
voters saying that it was indeed significant. This may be relatively low in comparison
with some polls concerning the French ‘No’, but it is significantly higher than the
Eurobarometer suggests, with the general feeling being that Turkey’s accession
did play at least a background role. Although the figures vary considerably, which
can also be attributed to methodological differences, the polls do converge on
certain other explanations, such as the loss of control over political affairs, the
perceived financial cost of the EU (‘we pay too much’), and the lack of information
about the EU generally and the EU Constitution in particular; the last point figured
prominently in all polls.
The issue regarding the loss of control should not be misunderstood, particularly as to articulating this as a ‘loss of sovereignty’, as was the language used in
the Eurobarometer poll. Conceptions of ‘sovereignty’ have never been very strong
in The Netherlands, neither in the constitutional history nor in the political debate,
while on the whole public opinion is strongly in favour of European integration.
It is indeed a matter of ‘loss of control’ rather than ‘transfer of sovereignty’ that
seems to be at play here. The metaphor of the European Union as an ‘unstoppable
fast train’ was resonating throughout intense public debates in the weeks preceding
the referendum. Also, the unfathomable nature of the EU and what it is doing is
particularly striking; this is corroborated by the motive of ‘lack of information’
amongst the ‘No’ voters.
A major reason for not taking the ‘loss of sovereignty’ in such terms, but rather
for understanding it in terms of a ‘loss of political control’, is the fact that The
Netherlands have still not recovered from the political upheaval caused by the
15. Eurobarometer, supra note 13.
16. A number of these are summarized in A. Nijenboer, ‘The Dutch Conversion’ (2005) 3 EUConst,
393–405.
17. Kom maar naar de camping! Tijd voor een reality check [Come to the Holiday Camp (i.e. the
debate on Europe), Time for a Reality Check], Eindrapport focusgroepen Buitenlandse zaken,
September 2005; downloadable via <www.tweedekamer.nl>, follow link < documentation>,
next link < Parlando>, last consulted on 28 April 2006.
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rise (and demise) of the political sentiment stirred up by Pim Fortuyn. A cleavage
between popular sentiment and political elites, a recurring event in Dutch political
history in cycles of approximately 40 years, can easily manifest itself in a referendum on a proposal which is favoured by the overwhelming majority of politicians
and political parties. The fact that the electorate has never had a chance to express
itself directly on decisive issues seems to have psychologically reinforced the tendency to say ‘No’ as soon as the opportunity to do so emerged.
The same may be said about the negative image which the EU institutions
have in the public opinion in The Netherlands: for 61 per cent of the electorate, the
European institutions do not evoke a positive image.18 It is likely that this scepticism
is another indication of the sense of alienation of citizens from political institutions,
although this is not necessarily a destructive thing. Indeed, the Eurobarometer poll
made it quite clear that there remains a general support for European integration in
The Netherlands, including among the ‘No’ voters, with as much as 78 per cent of
the ‘No’ vote perceiving membership of the EU as a good thing.19
7.
THE CONSTITUTIONAL EXPLANATION
The above reflections concern the political sentiment of the day. In order to understand the constitutional aspect of the vote and its aftermath, the cultural understanding of constitutions in the political order of The Netherlands must be considered.
In this respect, the answer to one question posed in the Eurobarometer poll immediately after the referendum is telling, providing an insight into the importance the
Dutch electorate ascribes to the European Constitution. In one question, citizens
were asked to indicate whether they tend to agree or disagree (or do not know)
with the following statement – ‘The European Constitution is essential in order to
pursue the European construction.’ Nearly 50 per cent of the respondents disagreed
with this statement. Even one-third of the ‘Yes’ voters stated that they disagreed
that the Constitution is essential to the European construction, against two-thirds
of the ‘No’ voters.20
The poll continued with the following question: ‘If between now and November
2006, at least 20 of the 25 Member States ratify the Constitutional Treaty, the
European Council, composed of Heads of State and Government of the Member
States, should decide on the procedure regarding the application of the Treaty within
the European Union. Which of the following propositions would you prefer?’ The
options for answer were: (a) organizing a new vote in the countries which had not
ratified the Treaty; (b) applying the Treaty only in the countries which ratified it;
(c) abandoning the Treaty for all Member States; (d) another solution; and (e) ‘don’t
know’. Almost one in two of the Dutch citizens (45 per cent) would like to see the
Constitution abandoned in such a scenario. Not only 54 per cent of the ‘No’ voters
18.
19.
20.
Eurobarometer, supra note 13, p. 22.
Eurobarometer, supra note 13, pp. 20–21.
Eurobarometer, supra note 13, p. 21, statistical annex p. 44 and last page.
Dutch Constitution, the European Constitution and the Referendum
121
thought so, but also 36 per cent of those who voted in favour of the Constitution.
In an identical poll in France, the overall opinion to abandon the Constitution was
significantly lower, at 36 per cent.21
The above data reveal a striking contrast in the attitude of citizens towards the
Constitution. From a constitutional point of view, the explanation can be relatively
simple: it conforms to the different type of constitution the Dutch and the French
have, in terms of the two types of constitutions delineated in the introduction to
this essay. The formal Constitution of The Netherlands is a constitution, the text of
which is taken to follow political realities, not to constitute political reality. For the
French, the opposite holds true – the Constitution constitutes the political order, and
a new Constitution signifies a new Republic. For the Dutch, rejecting the European
Constitution is not an abandonment of the idea of a European Union at all, not even
of the constitutional order of the European Union; it is merely a political fact to be
reflected in the political order. By contrast, for the French it may be suggested that
it may be more difficult to imagine the existence of a truly constitutional order for
the European Union, without a formal ‘Constitution’.
8.
THE RESPONSE IN POLITICS
The attitude towards constitutions has to be taken into account in the political
response to the referendum; it may also explain the short-term response by the
political elites to the Dutch ‘No’. Paradoxically, a certain enthusiasm about the
intensity of popular debate preceding the referendum governed the response of
politicians. For the first time in a long period, they were not visiting their own
local party meetings, at which a handful of the faithful would dutifully listen to
dull speeches. Politicians had to speak at least four or five times a day in all kinds
of halls, cafés and other locations filled to the brim with a very critical audience of
politically non-affiliated citizens. This phenomenon has led to a short-term renewed
attempt to introduce referendums.
However, apart from this consequence of the cognitive dissonance between
the citizens and politicians on the EU Constitution, the politicians were unsure
on how to proceed. To begin, there was a call for a broad debate in the society about the European Union, to be organized together by Government and
the Lower House of Parliament. Differences about the protocol and apparent {reticence/reluctance} of the Government to have its fingers burnt on the
EU once more led the Government towards a gradual opt out. As the Lower
House did not want to assume the responsibility, it also opted out of the
debate.
At the time of writing, there is a {roaring/deafening} silence reigning in The
Hague as to what should be done. Carefully and very much in the political twilight, political parties must however be considering the matter, because the 2007
21.
Eurobarometer, supra note 13, pp. 26–27.
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Leonard F. M. Besselink
national elections should clear the way to resolving the European problem, at least
as regards the stand The Netherlands presents towards the other Member States. A
Dutch Protocol like the Danish or Irish precedents is excluded, as nobody knows
what should be in such a Protocol, and nobody is asking for such a protocol. Nevertheless, the issue of formal constitutions not being decisive might leave some room
to manoeuvre, as long as the Member States are willing to follow a very pragmatic
approach. Perhaps dropping the name ‘Constitution’ might soothe the Dutch concern over creating stiff and formal arrangements, which mostly seem to benefit the
larger states.
9.
THE FUTURE OF THE EUROPEAN CONSTITUTION
Whether the European Constitution should be revived or not, and how this would
have to be done, is uncertain. Be that as it may, things have to be viewed in the right
perspective, and, in so doing, it is necessary to consider the nature of the European
Constitution.
Constitutionally, the European Union has been a purposive construction, which
was intentionally given the form of an incremental project. The Founding Fathers
clearly had a vision about a united Europe. At the time this vision had its origin
in the political cataclysm constituted by the tragedy of the World Wars, Nazism,
fascism, and in the necessity to overcome the associated French-German enmity,
which had been a permanent threat to peace and stability in Europe. However
visionary the design, the approach and choice of instruments were functionally
oriented.
Now, however, it has become difficult to think of one single and unified ‘motivating myth’. Since the series of enlargements from the six via the nine to 15 and
then to the 25, the moving myth is no longer one single experience at the root of
one equivalent ‘never again’, but an amalgam of quite different experiences of dictatorship, which in the experience of at least one generation in the newest Member
States is not directly linked to the Second World War (let alone the First).
The European Union has a historically developing, incremental constitution,
based on a set of Treaties, case-law and other documents, together making up
a constitution. It has become by its very nature and make-up a typically ‘historical’ constitution, not a ‘revolutionary’ constitution. For a lack of a unifying
political disaster afflicting the 25 Member States, which would usher in a new
design, it will be difficult to apply the constitutional rhetoric of revolutionary
traditions to any newly invented Constitution – the ‘area of freedom, security
and justice’ is the epitome of rhetorically flawed parallels to the French Revolutionary Trinity. Additionally, the Treaty Establishing a Constitution for Europe
was not really of a revolutionary design anyway, but a construct that tried to
make a number of things run slightly more smoothly in the operation of the
EU system.
Somehow, we shall simply have to make do with whatever we have. If the Nice
Treaty was not a grand design, it did not lead to a breakdown either; to the contrary,
Dutch Constitution, the European Constitution and the Referendum
123
the failed Constitution seems to cause many more problems than the relative failure
of Nice did. It is not risky to predict that the Dutch would rather opt for a muddling
through towards a more effective Europe, rather than opting for grand designs.
The solution to the constitutional crisis must therefore be entirely pragmatic, with
or without a Constitution, the ultimate reason for this being simply that the EU
constitution is inescapably historical in nature and entirely un-revolutionary.