The Future of Direct Democratic Voting in the EU | Conversations for the Future of Europe 2020 | #4
Whilst there seems to be near-consensus that the European institutions suffer from a lack of democratic legitimacy, nothing similar can be said about the best way to address this problem. In a thought-provoking presentation that kicked off the fifth Conversation on the Future of Europe, Prof. Francis Cheneval (University of Zurich) laid out his proposal for a direct democratic instrument at the EU-level. Such an instrument would, he believes, significantly improve the EU’s democratic legitimacy by allowing EU citizens to directly challenge existing and proposed EU regulations and directives (i.e. secondary European law, as opposed to treaty law). After sketching the theoretical terrain, distinguishing between different direct democratic instruments, and commenting on the problematic role that direct democratic instruments play at present in the EU context (e.g. non-binding government-initiated referenda in member states tend to function as a tool for the executive rather than an instrument of control for citizens), Cheneval offered a detailed outline of his proposal. First, the anticipated instrument, Cheneval opined, should focus on controlling and revising EU policy rather than allowing citizens to propose legislation immediately (referendum vs. statute initiative). Second, the instrument would be facultative and citizen-led, and could not be initiated by governments or EU institutions. To trigger an EU-wide, direct vote on a piece of legislation, some quota of signatures/applicants would have to be met that reflects a sufficiently wide concern in terms of EU and national citizens. Thirdly, the result of such a direct democratic vote at the EU level would be binding, that is, a successful referendum would cancel or nullify existing or proposed EU legislation. To be successful (i.e. to revoke an existing piece of secondary legislation), a referendum will need to meet the condition of a dual majority, by which Cheneval meant that it passes either (i) a simple majority in a majority of member states, or (ii) an overall majority of European citizens.
Gaby Umbach (EUI – Robert Schuman Centre for Advanced Studies) and Juri Viehoff (EUSOL Research Fellow) each briefly commented on Cheneval’s proposal. Umbach stressed some of the difficulties inherent to direct democratic instruments well-known to theorists of democracy, for example, their frequent inability to initiate successful deliberation, their necessarily polarising nature, etc. and wondered whether other instruments, e.g. sortition devices and smaller deliberative citizen-bodies would not provide more promising avenues for democratising EU decision-making. Viehoff raised some questions about the normative premise of outcome-neutrality and, more concretely, wondered whether some negative effects of referenda (secondary voting, polarisation, inertia) might not be exacerbated in the EU context. Once opened to questions from the (online-participating) public, there developed a lively debate about the issues raised by the commentators as well as some additional ones. Those in the audience more critical of the proposal worried primarily about how the instrument might further delay EU law-making, which seems especially problematic given the need for speedy decision-making in the face of the ongoing health and economic crises. Others had concerns about the disjunctive acceptance condition for the referenda (i.e. to strike down a law, it requires only one of the two conditions of member state and EU-wide majority), pointing out that this would make it significantly easier to block legislation in the EU context than what is presently the case in Switzerland, where facultative negative referenda require a double majority (i.e. majority of cantons and of Swiss citizens).
In our next session (June 3, 2020), Bruno de Witte will be the main discussant for a related topic, namely whether the EU should drop its unanimity rule.