- 14 -
jority of voters and member countries.20 While the first two authors do not specify the required ma-
jorities, the third proposes to have a majority of voters and a qualified majority of at least 10 member
states. Papadopoulos’ proposal corresponds to ours. Currently, Epiney’s proposal also corresponds
to the proposal in this paper, but our proposal is dynamically stable to Eastern and any further en-
largement. Compared to Abromeit’s (1998) proposal, the one made here is less restrictive.
Abromeit suggests to have a majority of voters in all states which translates the current unanimity re-
quirement for Treaty changes in the Council and the parliaments of the representative democratic EU
member states to an EU decision-making structure with direct democracy. This would, however,
give every single member state extreme veto power, provide incentives for strategic behaviour and,
therefore, make changes nearly impossible.21 Thus, it is reasonable to reduce the quorum with re-
spect to the member states to two thirds. No other restriction with respect to the majority require-
ment should be imposed. Especially, there must be no requirement that the referendum is adopted
only if turnout exceeds a certain threshold of the EU citizenry, because such a quorum invites strate-
gic behaviour and is actually a quorum on the share of approval votes.22 No such quorum should
hence exist.
The first founding referendum should be on the whole new Treaty that contains the three sections of
the actual Constitution, of the policy areas and the general and concluding provisions. The mandatory
referendum should not extend to the normal statutes of the EU, it should only be on constitutional
changes. According to the current draft, proposed by the Convention, the mandatory constitutional
referendum thus covers title III on the assignment of powers of the EU, title IV on EU institutions, ti-
tle V on procedures to decide EU policy measures, title VI on the democratic principle, title VII on
the finances of the EU, title VIII and IX on EU foreign policy, and title X on entry to and exit from
the EU. In addition, the mandatory constitutional referendum should be used for changes of the final
section that contains the provisions for the adoption of the new Constitution and the procedures to
change the Constitution. The mandatory constitutional referendum does not interfere with the provi-
sions under title I on the structure of the constitution and under title II on EU citizenship and basic
rights. The substance of both titles should not be changed by any decision-making body (eternity
clause). The mandatory referendum on the adoption of the new Constitution should be included in
the article in the final section that is supposed to contain provisions on the adoption of the Constitu-
tion. In the draft of 29 October 2002, this article is called Art. x + 4. The mandatory constitutional
referendum should be laid down in Art. x + 3 on the procedures for changes of the Constitution in
the same section.
20. For a very useful summary of the different proposals for direct democracy in the EU see again Hug (2002,
chap. 7, pp. 102). The comparisons of our proposals with the ones in the literature in Sections 3 and 4 are
based on his summary.
21. In the current situation log-rolling can help to overcome such blocking. This is, however, hardly possible if
the final decisions are taken by popular referenda.
22. See for this the experiences in the Weimar Republic, in the Bundesland Hamburg as well as in Italy discussed
in Kirchgassner, Frey and Savioz (1999, pp. 6, 38f., 161).