A national referendum may be considered direct democracy in its purest form. However for the majority of EU Member States it is a rarely used tool reserved only for matters of high constitutional importance such as accession to the EU. Excluding pre-accession votes, since 1992 only three Member States, Italy, Ireland and Slovenia, have held more than ten referenda. By contrast seven countries (Bulgaria, Cyprus, Luxembourg, Malta, The Netherlands, Spain and the United Kingdom) have held only one non- accession vote in that time and a further six (Austria, Belgium, Czech Republic, Finland, Germany and Greece) have held none.
Referenda are usually based on one of, or a combination of, three types of legal provision: constitutional requirements, general legislation governing referenda, or specific laws adopted on the issue on which the referendum is to be held. Some constitutions set out specific situations in which a referendum must take place – Denmark, for example, sets out five separate possibilities. The frequently used Italian “abrogative referendum”, which allows citizens to force a vote on whether to repeal, totally or partially, existing legislation, is a public rather than governmental or parliamentary initiative.
In the Member States that make frequent recourse to referenda a wide range of topics have been voted upon. Issues have included electoral law, judicial systems, state/private partnerships as well as environmental and even moral issues such as reproductive rights.
Turnout varies widely amongst Member States. This is true even amongst those states that use referenda frequently and those who use them rarely. The gravity of the issue is often a critical factor. For example in Cyprus’ only national vote on a resolution to the “Cyprus problem” 88% turnout was achieved, this compared to only 20% the EU’s most recent referendum in Bulgaria in February on nuclear energy policy. In the past 20 years Danish turnout has never been below 75%. Many Member States have minimum turnout requirements, for instance Bulgaria’s 20% turnout in February was well short of the 60% requirement for the result to be legally binding. A minimum of 50% is, however, more usual. Ireland has no minimum requirement for referenda on constitutional matters meaning that on one occasion an amendment was adopted with less than 30% turnout.
Statistics suggest that most referenda result in a positive “yes” vote. Of those Member States to have held multiple referenda in the past 20 years only two, Portugal and Slovenia, have less than 50% success rates. For those countries which have held only one referendum in recent years the story is a little different with only four of the eight votes producing a positive result.
Whilst referendum votes are not always legally binding there is little evidence of governments rejecting the results of popular polls. Nevertheless cases such as Ireland, where second referenda were called on both the Nice and Lisbon Treaties, illustrate that referenda do not always provide the final word on an issue. In addition, the law governing abrogative referenda in Italy provides that where a majority of voters vote against a proposal to repeal legislation, there can be no referendum on the same issue within five years.
In this context the rejection of the Maastricht Treaty by the Danish people provides an interesting example. Following the no-vote, a so-called “National Compromise” was set out by seven of the eight parliamentary parties. It provided the starting point for the Danish Government to negotiate with the other EU Member States. Four opt-outs were secured and set out in the Edinburgh Agreement and supplemented by a special Protocol attached to the Treaty of Amsterdam. Although a referendum was not automatically required under Danish law (a 5/6 majority of parliamentarians is sufficient), it was decided that the Agreement should be submitted to a second referendum in which a yes-vote was secured.