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The people have spoken: abide? A critical view of the EU’s dramatic referendum (in)experience

  • Andreas Auer (a1)

6 December 1992 – 9 February 2014 – 23 June 2016: three national referendums related to the European integration process, the first two in Switzerland, the third in the United Kingdom, with a hardly expected but unmistakably clear anti-European and anti-establishment outcome. The people have spoken, the matter is settled, governments have to abide. So goes the common understanding. In constitutional terms and in the theory of (direct) democracy, however, things may look different.

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1 Art. 121a Control of immigration (unofficial translation)

1  Switzerland shall control the immigration of foreign nationals autonomously.

2  The number of residence permits for foreign nationals in Switzerland shall be restricted by annual quantitative limits and quotas. The quantitative limits apply to all permits issued under legislation on foreign nationals, including those related to asylum matters. The right to permanent residence, family reunification and social benefits may be restricted.

3  The annual quantitative limits and quotas for foreign nationals in gainful employment must be determined according to Switzerland's general economic interests, while giving priority to Swiss citizens; the limits and quotas must include cross-border commuters. The decisive criteria for granting residence permits are primarily an application from an employer, ability to integrate and adequate, independent means of subsistence.

4  No international agreement may be concluded that breaches this Article.

5  The law shall regulate the details.

2 Bundesgerichtsentscheid (BGE) 142 II 35.

3 Art. 140 of the Federal Constitution of the Swiss Confederation of 18 April 1999 (CH/Cst).

4 Auer A. et al., Droit constitutionnel suisse, vol. I L’Etat (Editions Stämpfli Berne 2013) N 810-819 .

5 Consistency of form means that an initiative is either a general proposal that has to be formulated by Parliament or a specific draft which cannot be altered; the single subject rule prohibits two or more not intrinsically interrelated proposals within the same ballot question; mandatory provisions of international law (jus cogens) are a few basic rules, like the prohibition of genocide, slavery and torture, of which lawyers say that no state can violate them (Art. 53 Vienna Convention on the Law of Treaties of 23 May 1969).

6 Bogdanor V., The New British Constitution (Hart Publishing 2009) p. 173-196 .

7 See generally Serdült U. and Welp Y., ‘Direct Democracy Upside Down’, 8(1) Taiwan Journal of Democracy (2012) p. 69-92 ; Papadopoulos Y., ‘Analysis of Functions and Dysfunctions of Direct Democracy: Top-Down and Bottom-Up Perspectives’, 23(4) Politics & Society (1995) p. 421-448 .

8 Kölz A., ‘ Die Bedeutung der Französischen Revolution ’, in A. Auer (ed.) Die Ursprünge der schweizerischen direkten Demokratie (Helbing & Lichtenhahn 1996) p. 105-117 .

9 Contra Trechsel A. H., ‘Reflexive Accountability and Direct Democracy’, 33/5 West European Politics (2010) p. 1050-1064 (holding that ‘the people’, as the highest organ of the state, is responsible to itself).

10 For the founding director of two academic research centres on (direct) democracy (Centre for Research on Direct Democracy, <>, and Zentrum für Demokratie Aarau, <>) this would be somewhat surprising.

11 Auer et al., supra n. 4, N 913-943.

12 Auer A., ‘Dürfen eidgenössische Volksinitiativen Grundrechte verletzen? Überlegungen zur Grundsatzfrage und zum Verfahren’, in G. Kreis (ed.), Reformbedürftige Volksinitiative (Verlag Neue Zürcher Zeitung 2016) p. 55-71 ; comp, BGE 142 II 35.

13 Keller H. and Balazs-Hegedüs N., Paradigmenwechsel im Verhältnis von Landesrecht und Völkerrecht? Aktuelle Juristische Praxis (Dike Verlag Zürich 2016) p. 712-724 .

14 Denmark, Ireland, United Kingdom, Austria, Finland, Sweden, Czech Republic, Estonia, Hungary, Lithuania, Malta, Poland, Romania, Slovakia, Slovenia, Croatia, France, Luxembourg, Netherlands, Spain, Italy, Greece.

15 Norway, Liechtenstein, Switzerland, San Marino.

16 See <>.

17 We follow a mixed typology relying partly on Mendez F., et al., Referendums and the European Union (Cambridge University Press 2014) p. 22-27 and partly on Auer A., ‘National Referendums in the Process of European Integration: Time for Change’, in A. Albi and J. Ziller (eds.), The European Constitution and National Constitutions: Ratification and Beyond (Kluwer Law International 2007) p. 261 , at p. 264-269.

18 The six founding members (Belgium, France, Germany, Italy, Luxembourg and Netherlands) as well as the United Kingdom, Cyprus and Bulgaria.

19 Norway 1972 to EC and 1994 to EU; Switzerland 1992 to EEA.

20 United Kingdom remained in 1975, but voted to leave in 2016, as Greenland (Denmark) did in 1982.

21 Denmark (1986, 1992, 1993, 1998); Ireland (1987, 1992, 1998, 2001, 2002, 2008, 2009); France (1992, 2005); Luxembourg, Netherlands, Spain (2005).

22 Denmark voted twice on Maastricht (1992, 1993); Ireland voted twice on Nice (2001, 2002) and on Lisbon (2008, 2009).

23 France and Netherlands (2005) rejected the Constitutional Treaty.

24 According to Art. 88-5 of the French Constitution the referendum can be avoided by a three-fifths majority in each Assembly.

25 1997, 2000, 2001, 2005 (2), 2006, 2009, 2014.

26 Extension of the Bilateral Agreements to Eastern European countries (2006) and to Bulgaria and Romania (2009).

27 See, for instance, BGE 138 I 61 where the Swiss Federal Tribunal held that the (positive) vote taken by the federal electorate on 24 February 2008 on tax measures violated the liberty to vote (Art. 34 of the Federal Constitution) because government failed to give full information about the financial consequences.

28 Auer, supra n. 17, p. 267-268.

29 Cf. Auer A. and Flauss J.-F. (eds.), Le référendum européen (Bruylant 1997).

30 Mendez et al., supra n. 17, p. 218.

31 In the Greek referendum of 5 July 2015, organised within one week, 61% of the voters rejected the bailout conditions; government a few weeks later had to accept a deal with even worse conditions.

32 21 May 2000 (Bilaterals I), 5 June 2005 (Schengen/Dublin), 25 September 2005 (Enlargement Eastern European countries), 26 November 2006 (Enlargement financial contribution), 8 February 2009 (Enlargement Romania and Bulgaria).

34 It is true that Parliament has the right to initiate at any time a constitutional revision (Art. 194 of the Federal Constitution), but to do so in order to reverse a recent amendment accepted by the people would be interpreted as a violation of the popular will, a critique that neither government nor parliament can politically sustain.

35 See <>, visited 7 October 2016: ‘We the undersigned call upon HM Government to implement a rule that if the remain or leave vote is less than 60% based a turnout less than 75% there should be another referendum’.

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European Constitutional Law Review
  • ISSN: 1574-0196
  • EISSN: 1744-5515
  • URL: /core/journals/european-constitutional-law-review
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