One of the products of the Federal Alliance of European Federalists (www.faef.eu) is a three-part course on the standard aspects of federal statehood. The first part of the course concludes with an essay by the student. Below is the essay by Alessandro Pietrogiacomi. He describes whether peoples of member states can vote for or against a federal constitution for a federal Europe by referendum. With a short epilogue by Leo Klinkers, president of FAEF.
Alessandro Pietrogiacomi is a senior director with a multinational pharmaceutical company, Italian by nationality, currently based in Basel (Switzerland). MBA qualified with a background in economics, Alessandro has +30 years industry experience and has developed a genuine interest in European integration and cohesion, international cooperation and human rights development.
Do the Citizens of Europe have the right to vote for a federal Constitution to be ratified by their national Parliament? The case of Italy
by Alessandro Pietrogiacomi |
Introduction
As democracy is widely adopted throughout the European continent, the utility of direct democracy and the limits of referendums are fundamental aspects in the process of national ratification of a future European federal Constitution.
The constitutions and constitutional practice of many European democracies give referendums a fundamental role. However, there are pros and cons to direct democracy as well as limits implemented in various jurisdictions. In fact, direct consultation of the people via referendums has long been the subject of heated discussion among legal and political experts, sociologists, politicians, and indeed the general public.
Since 1972, a total of 48 referendums have been held by EU member states, candidate states, and their territories, specifically on European matters. These referendums have been held most commonly as part of the accession process on whether to become a member of European Union, although the EU does not require any candidate country to hold a referendum in order to approve membership or as part of treaty ratification. Other EU-related referendums have been held on the adoption of the Euro currency and on participation in other EU-related policies.
To date, the United Kingdom is the only EU member state to have held referendums on continued membership of the European Union and its antecedent organization, the European Communities. In the first referendum in 1975, continued membership of what was then the European Communities (which included the European Economic Community, often referred to as the Common Market in the UK) was approved by 67.2% of voters, while in its second referendum in 2016 British electors voted by 51.9% to leave the European Union.
The case of Italy.
A referendum, in the Italian legal system is a request directed to the whole electorate to express their view on a specific question. It is the main instrument of direct democracy in Italy.
The basis is Art. 138 of the Italian Constitution which provides that Laws amending the Constitution and other constitutional laws shall be adopted by each House after two successive debates at intervals of not less than three months, and shall be approved by an absolute majority of the members of each House on the second vote. The said laws are submitted to a popular referendum within three months of their publication, when requested by one fifth of the members of a House or five hundred thousand electors or five Regional Councils.
The law submitted to a referendum shall not be promulgated if it is not approved by a majority of valid votes. A referendum shall not be held if the law has been approved in the second voting by each of the Houses by a majority of two-thirds of the members
According to art. 75 of the Constitution of Italy, there are four types of legally binding referendums:
- A popular referendum, in which the electorate is called to vote on whether they wish to abolish (abrogate) an existing law, either totally or partially
- A constitutional referendum, which can be requested in some cases when a new constitutional law is approved by Parliament. Similarly, a referendum can be requested to confirm the adoption of the Statute of ordinary regions.
- An advisory referendum is required to approve the modification of regions, provinces, or municipalities.
- A popular referendum on regional laws and regulations may be regulated by regional statutes.
Despite the fact that the constitutional right to hold a popular referendum has existed since adoption of the Constitution in 1948, the necessary legislation detailing the bureaucratic procedures needed to hold them was not adopted until the early 1970s. As a consequence of this, Italy’s first popular referendum was not held until 1974, 27 years after the Constitution was first approved.
More specifically on the first two types of referendum.
A popular referendum shall be held to abrogate, totally or partially, a law or an act having the force of law, when requested by five hundred thousand electors or five Regional Councils. A referendum is not permitted in the case of tax, budget, amnesty and pardon laws, or the authorization or ratification of international treaties. The latter, or international treaties, are exclusively approved by the two Chambers as per art. 80 of the Italian Constitution. All citizens eligible to vote for the Chamber of Deputies have the right to participate in referendums. The proposal subject to referendum is approved if the majority of those with voting rights have voted and the proposal has received a majority of validly cast votes. The procedures for conducting a referendum are established by law and require 500.000 voters, or five regional councils, to call for a general referendum to repeal, in whole or in a part, a law or a measure having the force of law. In the Italian system these referendums are referred to as “abrogative “. They are considered valid as long as the majority of those with voting rights have voted. So far, 66 abrogative referendum have taken place in Italy although 40% of them did not reach the required quorum.
The second most common type of referendum in Italy is the so called “constitutional referendum “. Following the approval of a law that modifies the constitution, either one fifth of the members of a House, or 500.000 voters, or five Regional Councils can request a popular referendum to confirm the changes. This kind of referendum has no quorum. Only four constitutional referendums have ever been held in Italy: in 2001 (in which the constitutional law was approved), in 2006, and in 2016 (in which they were rejected) and lastly a constitutional referendum about the reduction of the size of the Italian Parliament held in Italy on 20 and 21 September 2020 (in which the law was approved).
Besides these two types of referendums, there have been two exceptions in the history of Italy. In 1946 Italian citizens were asked to choose between a monarchy and a republic. In 1989 an advisory referendum was held on the European Economic Community. The non-binding referendum was called on the basis of a special law, because the Italian Constitution does not speak about this type of referendum. The Italian political leadership wanted to re-affirm the popular support of Italy for the process of European integration, particularly by giving the European Parliament a popular, constitutional mandate for a future European Constitution. An advisory referendum on the European Economic Community was held in Italy on 18 June 1989, alongside European elections. The non-binding referendum was called by the main parties with a special law, because the Italian Constitution does not allow this type of question.
| Choice | Votes | % |
| For | 29,189,777 | 88.1 |
| Against | 3,954,998 | 11.9 |
| Invalid/blank votes | 4,364,611 | – |
| Total | 37,509,415 | 100 |
| Registered voters/turnout | 46,323,415 | 81.0 |
Would Italian citizens be legally entitled to vote for a European-wide ratification process of a federal Constitution ?
In the first module of FAEF course on Federalism, it is illustrated how a European-wide ratification process of a federal Constitution could be organized and what will happen as an outcome of the process. Such ratification would be obtained by applying a voting system, based on block chain technology and in the ideal case of approval, of at least nine countries voting for the European Constitution, a federation among these states is created, then states leave the EU individually and join the EU again as a federation. Furthermore, if all EU-states want to become members of the federation, a transition plan would be created to transfer the whole EU into a federation.
Besides legal considerations about the validity of block chain technology for constitutional referendums, at this point in time, it is very likely that Italian citizens would be confronted with a number of limitations
First, according to the Italian Constitution, some matters are not subject to popular referendums: tax laws, budget laws, amnesties and pardons, and, for the purpose of this short paper, laws that authorize the ratification of international treaties as prescribed by art.80 of Italian Constitution. Furthermore, since an advisory, non-binding, referendum on the European Economic Community was already held in Italy on 18 June 1989, alongside European elections and followed by a special law, the general consensus is that popular support of Italy to the process of European integration is implicitly confirmed. And it is unlikely that a new advisory referendum would be admissible or even determine any legal consequences to the existing treaties, already ratified by national laws.
Second, the petition, which includes the question of the referendum, must be deposited at the Court of Cassation, by a legitimate association of citizens, a party or a valid and legally constituted group of stakeholders. The Court of Cassation is then called to examine the validity of the petition. Besides, the Constitutional Court of Italy verifies the regularity of the signatures (if the referendum has been requested by voters) and of the question of the referendum. The court has the power to reject it outright. Many fully valid petitions with the necessary 500,000 signatures have never been accepted as referendums precisely for this reason.
If the Court of Cassation judges the petition to be valid, the referendum question must then be evaluated by the Constitutional Court, which is called to judge its admissibility. Unlike the Court of Cassation, which considers the conformity of the petition to ordinary law, the reference for the Constitutional Court’s judgment is the Constitution. If the Constitutional Court deems the referendum admissible, the President of the Republic has to set a date for the vote between April 15 and June 15.
The final hurdle is that the result of the legislative referendum is only valid if at least a majority of all eligible voters go to the polling station and cast their ballot. If this quorum is not met, the referendum is invalid (which, in practice, means the law is not abolished).
Conclusion
Under the circumstances reported above, it is probably advisable, that access to a citizens’ referendum process to approve a European federal Constitutions should be tailored around the framework of the national constitutions and legal jurisdictions, in order to conform with local process and validity requirements .
Epilogue by Leo Klinkers, president of FAEF
Alessandro’s essay is a welcome addition to the body of knowledge on the subject of federal statehood, ratification by the people, and the use of referendums. Applying referendums as an instrument of direct democracy is – as Alessandro points out – not without difficulties involving the people in fair and effective public decision making. The Federal Alliance of European Federalists (FAEF) therefore opts for an entirely different method. FAEF wants to guide the ratification of our ten-article federal constitution along the constitutional lines of neither the European Union nor the member states. The FAEF chooses to follow as closely as possible the method of creating the world’s first federal constitution. That took place in the period 1787-1787. At that time, the peoples of thirteen states, former colonies of England, ratified a federal constitution of only seven articles – designed by the Philadelphia Convention – through which the United States of America was born. There were no referenda. Each nation spoke out through electoral colleges of that nation, based on the adage ‘All sovereignty rests with the people’. All thirteen nations said yes. This was then communicated to the Confederate Congress as a fait accompli.
The FAEF has designed a scenario to follow this method as best practice as much as possible. We do not submit our draft ten-article federal constitution to the EU, nor to the member state governments only to see it crushed under the inability of those governments to hold unambiguous, not misleading referendums in their attempt to frustrate any action in favour of a federal Europe.
Those who are interested in the facts and arguments with which the FAEF substantiates why we want to use this methodology – i.e. without referendums but direct ratification by the peoples of the Member States – can find it in the Constitutional and Institutional Toolkit of Establishing the Federal United States of Europe: https://www.faef.eu/request-for-toolkit/
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