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If the European Court were turned into a constitutional court, it should have the obligation to check
the compatibility of proposed changes of the constitution with the substance of title II.23 This check
should be performed before the referendum takes place, independent of whether the change is pro-
posed by the parliament or, as is discussed below, by a popular initiative. In this proposal, we follow
Buchanan (2001) who objects against extending a mandatory constitutional referendum on all con-
stitutional provisions. There is a potential conflict between the rule of law and the principle of de-
mocracy that can most easily be resolved by formally protecting basic human and civil rights from
democratic access. Buchanan (2001) acknowledges however the usefulness of a mandatory consti-
tutional referendum in preserving the property rights granted in the constitution. The referendum in-
cludes the European citizens as an additional veto player in the EU decision-making game such that
once agreed upon, constitutional outcomes are stabilised. Constitutional changes are more difficult
though not impossible. Moser (1996, 1996a) shows this stability enhancing effect of the referendum
theoretically in spatial voting models. With respect to the constitutional draft of the Convention, this is
particularly important with respect to the assignment of competencies to the EU. A creeping centrali-
sation, as criticised by Vaubel (1994) and Blankart (2000), is thus less probable.24
4 Constitutional/Statutory Initiatives and a Fiscal Referendum at the EU Level
4.1 Constitutional and Statutory Initiatives at the EU Level
While the referendum is an institution that enhances the stability of constitutional and policy outcomes
and is thus relatively conservative, the popular initiative grants citizens the possibility to put new po-
litical issues on the agenda or to have an unbundling of policy issues. In both functions, the initiative is
innovative. It creates new policies or modifies existing policies. The inclusion of an initiative in EU
decision-making in addition to the mandatory constitutional referendum is thus useful in order to fa-
cilitate the launching of new policies which are neglected by the political elite for the citizens. The ini-
tiative accomplishes this goal at relatively low costs compared to the foundation of new parties and is
thus also a valve for political protest: In a direct democracy, citizens can oppose the political estab-
lishment by using political institutions instead of political unrest on the streets.
This leads to propose the introduction of a constitutional and a statutory initiative in the EU Constitu-
tion. The constitutional initiative serves the purpose of introducing institutional innovation at the EU
level. The EU will develop further to a federation and may at some point in time have much stronger
competencies than it has today. Although the mandatory referendum will decelerate this process, it
will not (and should not) prevent it if it is reasonable and serves the interests of a majority of EU citi-
zens and a qualified majority of the countries. A more powerful Union will need additional finances,
23. Please note that this check should only occur with respect to the Bill of Rights of the European Constitution.
In addition, there must be a control that there is a unity of contents of the proposed changes of the European
Constitution. This means that no disparate issues should be allowed to be combined in order to succeed at
the ballots. See also Papadopoulos (2002). The role of the constitutional court should not be as active as that
of the U.S. Supreme Court or the German Constitutional Court.
24. In contrast to Vaubel (1996), we hence trust more strongly in the centralisation reducing impact of the consti-
tutional referendum following the arguments by Blankart (2000) and the empirical results by Schaltegger and
Feld (2001).