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The recent track record of the EU in referenda is a dismal one. From the Danish rejection of the Maastricht Treaty, the various Irish "No" votes and the demise of the Constitutional Treaty to the British referendum, when the EU is put to the voters, they often reject what is on offer. Since 2015, the EU has been turned down in Greece, Denmark, the Netherlands, the UK, and Hungary. Why is that, and what could be done about it? Two things stand out when assessing the referenda organised in the last decade or so: the first is that the voters are often responding to the insecurities that globalisation entails, for example the opening of markets and increased competition. The EU is blamed for unemployment, stagnant wages and other economic ills in particular by those with less education and low income. The second is the lack of information, or the sheer misinformation, that dominates many campaigns. There is confusion and misrepresentation about the powers, institutions and nature of the EU. (1) It seems clear that these two issues need to be addressed for integration to be able to proceed, or even survive.
The EU has been perceived as an agent of global capitalism, with freely moving Polish plumbers, and rightly so. Its dominant policy field is still the internal market, and its considerable powers in the field of competition law are exercised actively, for example to curb state interventions in the market economy. It has admitted a number of Member States with lower labour costs, adding to the competitive pressures felt by many. More recently, in the context of EMU, it has been preaching austerity and the correction of economic imbalances through structural reforms. In a way, this tendency was built into the DNA of the EU a long time ago. Through the operationalisation of the Treaty articles on free movement and competition by the Court, and the move to qualified majority voting for the internal market, the EU gained the ability to pursue market integration, while the social aspects were left for the Member States. The basic bargain was simple: the EU would help make Europe richer, and the Member States would redistribute the riches. The problem with the bargain was that this redistribution did not necessarily take place. Market opening does create aggregate gains that could in principle be shared equitably, so that those who stand to lose are compensated, but this was not always done, at least to a sufficient degree. (2) Unfortunately for the integration project, the voters have often attributed the failures to the EU rather than to the Member States. Any misperceptions were hard to correct due to the complexity of the EU and the incentive of national politicians to blame the Union for any problems and take credit for any achievements. Furthermore, in some cases the EU may have contributed to the difficulties faced by Member States by creating conditions in which social dumping and tax competition could take place. (3) This leads to the problem of lack of information. The EU is complex by its nature. It is ultimately a bargain between countries that have very different outlooks: Atlanticists vs those with a continental outlook; liberals vs dirigistes; old Europeans vs new Europeans; the South vs the North. The EU bargain has to contain all of these tensions, and cannot possibly be a simple expression of a clear shared vision. This complexity makes the EU easy to misrepresent. Atrocious examples are easy to find: the British voters were told that Turkey was about to accede, that Turkish citizens would flock to the UK, potentially overwhelming the NHS, and that Britain was powerless to stop it, (4) while the Dutch voters cited lack of information as the main reason to reject the Constitutional Treaty, just as the Irish did for the Lisbon Treaty. (5) When this is coupled with the rational tendency of national politicians to shift the blame to the EU, it is not difficult to see why the EU has been a hard sell.
What to do? First, it seems to me that if the EU is in any event going to be blamed for the inequalities that market openings create, it needs to become more active in correcting them. If the citizens hold the Union accountable for failures in distributing the proceeds of market integration, it cannot just sit back and leave the matter entirely in the hands of the Member States. It needs to take a more active role and the basic bargain of the EU as the wealth creator and Member States as the wealth distributors may need to be revisited. At the very least, the EU cannot wash its hands of questions of social justice within its Member States. Some tentative steps have been taken, but more far reaching initiatives, such as a common unemployment insurance at least for the euro area, need to be taken seriously. (6) Secondly, the information problems are not easy to overcome. There was an attempt to simplify in the context of the Constitutional Treaty, but it did not amount to much. Any well-meaning information campaigns, leaflets, FAQs and so on seem insufficient, especially if the citizenry has little idea of what the EU is and what it does in general. Research suggests that EU referendum campaigns may do a bad job in informing citizens about the issues. (7) Anecdotally, it is the experience of many who have taught undergraduate law students that they often come to the EU law course with very little grasp of the integration project. This suggests that the EU may need to follow the route taken by nation states and seek to inform its citizens when they are at school. Children are educated to become members of the national community-perhaps this should also be extended to the European one. (8) In some Member States this may already be taking place, but not in others. Yet it seems that asking citizens to shift through competing claims and vote on matters European when they may not have been provided with basic information about the history of integration and its system of governance is unwise.
(1) See the Flash Eurobarometers concerning the French and Dutch referenda on the Constitutional Treaty in 2005, and the Irish Lisbon referendum in 2008, as well as the UK polling data available at http://lordashcroftpolls.com/2016 /06/how-the-united-kingdom-voted-and-why/ [Accessed 21 November 2016].
(2) See A. Corlett, Examining an Elephant: Globalisation and the Lower Middle Class of the Rich World (Resolution Foundation, 2016).
(3) See e.g. F. Scharpf, Governing in Europe: Effective and Democratic? (Oxford: Oxford University Press, 1999) and F. de Witte, "The Architecture of the EU's Social Market Economy" in P. Koutrakos and J. Snell (eds), Research Handbook on the Law of the EU's Internal Market (Edward Elgar, 2017).
(4) See e.g. Vote Leave, "'Paving the road from Ankara': the EU, immigration and the NHS", available at https:/ /d3n8a8pro7vhmx.cloudfront.net/voteleave/pages/24/attachments/original/1463745000/Vote_Leave_-_'Paving_the _road_from_Ankara'_the_EU__immigration_and_the_NHS.pdf and claims by Defence Minister Penny Mordaunt at http://www.bbc.com/news/uk-politics-eu-referendum-36352676 [Both accessed 21 November 2016].
(5) See fn.1 above.
(6) See e.g. M. Draghi, "Reviving the spirit of De Gasperi: working together for an effective and inclusive Union", https://www.ecb.europa.eu/press/key/date/2016/html/sp160913.en.html [Accessed 21 November 2016].
(7) W. Brett, "It's Good to Talk: Doing Referendums differently after the EU Vote" (Electoral Reform Society, 2016), https://www.electoral-reform.org.uk/sites/default/files/files/publication/Its-good-to-talk-2016-EU-Referendum-Report .pdf [Accessed 21 November 2016].
(8) See K. Grimonprez, "The European Dimension in Citizenship Education: Unused Potential of Article 165 TFEU" (2014) 39 E.L. Rev. 3.
