Referendum on a Constitution for Europe
Ratification of Constitution for Europe
Specific conditions for a referendum
Objective, clear and precise formulation of question
RULING Nº 704/04
17 of December of 2004
The question forming the subject of the referendum must be formulated in an objective, clear and precise way and must permit an answer of the "yes" or "no" type, without suggesting, directly or indirectly, the significance of the answer. The Constitutional Court checks whether these conditions have been met while bearing in mind, on the one hand, that it is not its role to check whether the question is formulated in the best possible way, but only to satisfy itself that it fulfils the constitutional and legal conditions, and on the other hand, that the criterion of clarity must be combined with those of objectivity and precision. This presupposes a more complex wording and accurate terminology in order to avoid subsequent ambiguities.
In the case in point, the question "Do you agree with the Charter of Fundamental Rights, the qualified majority voting rule and the new institutional framework of the European Union under the Constitution for Europe?" combines three questions within one, for which a single answer is required. It is a question which was unclear in relation to the constitutional and legal provision; there must be a clear, explicit and unambiguous question. The lack of clarity stems mainly from the fact that there are three questions in one.
The question is worded in such a way that one could say that the aim is to ask voters whether they agree with the Charter of Fundamental Rights, the qualified majority voting rule and the new institutional framework of the European Union, in all three cases under the Constitution for Europe. The mere fact of assigning more than one meaning to the question shows its ambiguity and the resulting lack of clarity.
Not only was the question as a whole not worded in a clear, explicit and unambiguous manner, but also, none of the individual questions complies with the condition of clarity, because they can be assigned several meanings.
An interpretation to the effect that the question comprises three separate questions rolled into one infringes the constitutional and legal provision requiring the question to be formulated in such a way as to permit an answer of the "yes" or "no" type. The aim in formulating the question in such a way is to ensure that the purpose and content of the vote are fully in agreement.
Since it was the role of the Constitutional Court to give a binding opinion on the constitutionality and lawfulness of referendum proposals, the President of the Republic applied for prior review of the constitutionality and lawfulness of a proposal for a referendum which had been approved by Parliament and whose content was as follows: "Do you agree with the Charter of Fundamental Rights, the qualified majority voting rule and the new institutional framework of the European Union under the Constitution for Europe?"
Notwithstanding the fact that the Treaty establishing a Constitution for Europe had already been signed by the heads of state and government of the European Union, the referendum could still be held because Parliament had not yet finally approved it with a view to ratification by the President of the Republic. The referendum proposal formed part of the procedure for deciding on a future legislative act, complying with the requirement that it must be an international treaty or convention which had not yet been finally approved.
In conclusion, the Constitutional Court ruled that:
a. the proposal for a referendum on a Constitution for Europe did not meet the requirements of clarity and formulation of a question calling for an answer of the "yes" or "no" type, in accordance with Article 115.6 of the Constitution and Article 7.2 of the Organic Law on Referendums;
b. consequently, that the proposed referendum was neither constitutional nor legal.
- On the status of the referendum and also the referendum on the Treaty of Amsterdam, see Judgment 531/98.