1 Introduction
The democratic deficit of the EU is legendary among legal scholars and political scientists.1 In its de-
cision on the EU Treaty’s compatibility with the German Basic Law (GG) in 1993, the German Con-
stitutional Court argued that the EU lacks a comparable democratic legitimacy to the principle of
democracy as it is fixed in the German constitution. German citizens’ civil rights as laid down in Art.
38 GG are not violated as long as the German parliament (Bundestag) exerts substantial decision-
making powers. When EU treaties adopt explicit community competencies that are in conflict with
those of nation states democratic accountability is however endangered. In several member states,
among them the ‘Eurosceptics’ Denmark, Sweden and the U.K., but also France, the EU’s demo-
cratic deficit has been similarly criticised. Indeed, the EU is essentially organised as a supranational
authority of European executives despite its far-ranging competencies in European legislation. The in-
fluence of the European Parliament (EP) or of national parliaments is quite reduced. Moreover,
Grande (2000) argues that members of the EP are too far removed from European citizens as to
follow citizens’ preferences or as to allow citizens to exert effective control of MEPs. Although the
reduction of democratic control with regard to international organisations or international treaties is a
general feature of modern governance, the unbalancing impact of the EU on the balance of powers in
the member states is of particular importance (Abromeit 1998, p. 20).
In addition to these arguments, the German Constitutional Court in this decision and Grimm (1994),
a former judge of the Court, argue that a fundamental condition for a treaty to be regarded as a con-
stitution and thus also for the acceptance of the supremacy of EU law over national laws is the exis-
tence of a European public. Abromeit (1998, p. 32) calls this the ‘no-demos thesis’: A democracy
can only be called such if it is based on a collective entity, the people or the nation, that is constituted
by a common culture or common traditions and experiences. Since its creation, the EP faces the
problem that the people of the member states have apparently not accepted it as the body that rep-
resents the interests of EU citizens. If the democratic deficit of the EU were reduced by giving the EP
more legislative powers, a majoritarian decision in the EP would possibly not be accepted by the
losing minority, in particular, when the minority is concentrated in one or several member states (Hug
2002, p. 110).
Several scholars have thus proposed the introduction of elements of direct democracy in EU deci-
sion-making in order to reduce the democratic deficit in the EU and to create a European demos.2 In
his survey of the different policy proposals, Hug (2002, chap. 7) distinguishes required referenda
(mandatory referenda), non-required referenda on government proposals (optional referenda) and
non-required referenda on opposition proposals (initiatives). In most cases, scholars suggest to in-
troduce elements of direct democracy without specifying in which instances a referendum should take
place or under which circumstances an initiative should be allowed for. In cases a specification is
made, required referenda are proposed for ‘constitutional changes’, i.e. changes of the treaties. A
referendum decision on Eastern enlargement for example would fall into this category. In the cases,
1. See: Boyce (1993), Abromeit (1998, p. 4), Hug (2002, p.8) and for the following BVerfG 89, 1993, 155-213.
2. See: Bogdanor (1989), Opp (1994), Christiansen (1995), Korkemeyer (1995), Frey (1995), Schneider (1996), Zürn
(1996, 2000), Epiney (1997), Weiler (1997, 1999), Abromeit (1998) and Papadopoulos (2002).