Year XXX, 1998, Number 3, Page 194
REFERENDUM ON THE EUROPEAN UNION AND NATIONAL CONSTITUTIONS
Many of those opposed to the proposal for a referendum on the European Union maintain that this would be incompatible with the constitutional order of one or another of the Community’s member states.
The truth is that a decision involving a refoundation of the state — in other words, one that has a constituent value — can only be taken with the consent of the people, who are the holders of constituent power. This is without doubt a consensus that in certain circumstances can also be expressed in an implicit form, through a wide agreement among the political forces that represent the sovereign people. But it is equally certain that it makes no sense to question the formal conformity to the constitution of a popular consultation that has as its object the creation of a new political community, that is, the reformulation of the fundamental clauses of the social contract.
This does not mean that a referendum on the European Union is necessarily in accordance with all the constitutional charters of the member states of the Community. It means that the legitimacy of a direct consultation of the people on a theme of a constituent nature is not based on the constitution but on a more profound principle of legality, which in turn provides the foundation of the validity of the constitution.
This criterion is that of popular sovereignty, which has as its fundamental expression the constituent power of the people. Without the recognition of the latter — certainly not intended as a legal fiction, but as an effective power — the issue of the legitimacy of the constitution can be resolved only by means of a recourse to purely formal constructions, which are in any event arbitrary, such as that consisting in the search for (to the extent this is possible) the source of legitimacy of a constitution in a previous constitution, and then in another, until one arrives at that mysterious entity that Kelsen calls the “fundamental rule”.
The truth is that, when the foundations themselves of civil co-existence are put in question — that is, when the state is refounded — we are no more in the field of constitutional revision; then the delegation attributed by the people, in the exercise of their constituent power, to the organs designated by the constitution as competent in this regard, must be considered to be automatically extinct. In such cases the sovereign people recover their original power to establish the fundamental clauses of the social contract, without which their constituent power would be reduced to a pure flatus vocis. This is particularly true in the case of the profoundest of transformations of the basic rules of civil co-existence: that which concerns the political community, and thus the very identity of those who ideally underwrite the social contract.
It is worth remembering that, consistent with these considerations, a fundamental part of legal doctrine interprets in a restrictive sense those constitutional norms, such as Article 24 of the Grundgesetz and Article 11 of the Italian Constitution, that expressly provide for the possibility of a cession of sovereignty (Hoheitsrechte in the terminology of the Grundgesetz) by the state to interstate institutions or organizations, maintaining that these refer, in fact, only to the eventuality of transfers of competence that are rigorously delimited, and which in any event would not give rise to the creation of a new state entity, even one that is imperfect.
It is also worth recalling that modern democratic legal sensibility tends to place under the direct approval of the populations concerned even changes in the jurisdictional sphere of subordinate levels of government, as long as these latter have a more or less ample degree of independence, such as the member-states of a federation, or even the administrative regions in a unitary state. It is thus that the Italian Constitution provides for the use of the referendum instrument when it is a question of creating new regions or changing the boundaries of existing ones (Art. 132), and that in the Federal Republic of Germany as well any change in the number and boundaries of the Länder must be approved by a referendum (Art. 29 of the Grundgesetz).
The fact remains, to which I have already referred, that the assumption of constituent power by the people themselves can remain in a potential state when an ample accord between the political forces makes the direct expression of popular will superfluous. But this does not take away from the fact that: a) the direct expression of popular will in relation to a decision of a constituent nature represents the most unassailable juridical way of sanctioning its legitimacy, and that, b) in particular, in a situation such as that existing within the Community, where the proclaimed will of politicians to attain the Union is countered by the persistent absence of concrete results, recourse to a direct consultation of the people would constitute, politically, the best way to give a decisive turn to the process.
To state today that one is for the European Union but against the referendum means, therefore, to implicitly recognize that one thinks of the Union as one of the many institutional devices of which the story of the integration process is studded, and that repropose in ever differing forms a substance that never changes: the intergovernmental nature of the decision-making mechanism. Which is equivalent to admitting that one is against the Union.