The spring of 2005 saw major set-backs for the Treaty of Rome of 29 October 2004, establishing what it calls ‘a Constitution for Europe’. On 29 May, the French rejected the Treaty in their referendum by 54,8% (turnout 70%). Then the Dutch rejected it on 1 June by an even more massive 61,7% (turnout 63%). In response to these refusals the member states agreed to a ‘reflection period’ and a suspension of the ratification deadline at the European Council of 16 and 17 June. In the subsequent 10 July Luxembourg referendum 56,2% of the electorate voted in favour (obligatory vote), a significant drop from polls in October 2004, but at least creating a simple majority of 13 member states to ratify the document. But the UK put its ratification on hold, followed by other countries.

The Danish ‘no’ after Maastricht. Key role of negotiations between political parties towards ‘national compromise’ with main ‘no’-party. Exceptions to be negotiated at Edinburgh. The Edinburgh Agreement as closing off alternative developments or options for Denmark. The legal status debated, but most probably of international agreement. Intensified parliamentary scrutiny as result. Particular circumstances made acceptance in a second referendum possible.

Part One: Referenda required to amend Irish Constitution. Referenda on accession to EEC, the Single European Act, Maastricht and Amsterdam. Development by courts of rules for fairness of referendum campaigns. Referendum Acts and Referendum Commission.

Part Two: First Nice Referendum dominated by euro-anxiety, Irish neutrality and enlargement. Second referendum on same subject not unusual and acceptable according to domestic criteria. Concessions and clarifications. Effect on the Convention on the Future of Europe.

Part Three: implications for the Constitutional Treaty.

On 21 September 1792, at Danton's proposal, the French National Assembly declared that ‘there can be no constitution but one approved by the people’. In France, the idea of direct democracy dates back to the Revolution. However, due to the Terror and the practice under Napoleonic Empires, in which they were turned into plebiscites, referendums acquired a negative connotation. Under the Vth Republic, De Gaulle turned referendums into an instrument of personalisation and presidentialisation, and since his day, there have been few referendums staged. In 10 years of office, President Jacques Chirac only used it twice with much less success and political courage.

Origin of referendum discussion in the Convention. The national debate on referenda. The crucial role of the liberal party. Referendum bill private members initiative. Referendum Act an ad hoc consultative referendum. Referendum the first opportunity for a broad political debate on the EU. Complacency and disorganised arguments of the ‘yes’ campaign. First analyses of referendum.

Dutch government disoriented and confused. Confusion and surprise are normal. Confusion becomes visible. Gapap between authorities and people is part of political life. Citizenship aspects. Citizenship cannot be produced. Community of fate. Institutions and routines needed.

Following the dramatic No votes in the French and Dutch referendums on 29 May and 1 June 2005, a need was felt in the European constitutional law profession to react to the shock.

EuConst invited members of its Board and members of the European Constitutional Law Network to write a short comment about possible and possibly salutary effects of the events on the ways of European scholarship and teaching. Below are the reactions received. Authors are all members of ECLN and/or the Board of EuConst.

The contributions to this issue of EuConst by Jacques Ziller, Sacha Prechal and Herman van Gunsteren carry their comments on the events incorporated.

Triple majority for changing the status quo in Treaty of Nice (2001): qualified majority of weighted votes, majority of countries, qualified majority of the population. Convention proposal (2003): requirements from three to two by dropping the qualified majority of weighted votes and reducing the qualified majority threshold of the population from 62% to 60%. Important consequences for the political institutions of the Union: 1) facilitates political decision-making; 2) reduces relative weight of governments participating in the Council and increases the importance of the European Parliament; 3) reduces the role of the judiciary and bureaucracies in the Union in favor of the political process. Consequences of the Treaty establishing a Constitution for Europe signed in Rome 29 October 2004. Exactly in the middle between Nice and the European Convention.

Precedents in European Union member states for the negative referenda in France and The Netherlands on the Constitution for Europe. Evolution of the investiture of the Commission: parallel with France under Third and Fourth Republic. Double headed executive (President of the European Council and President of the Commission) and ‘double hats’ (Union Minister for Foreign Affairs) in line of the European constitutional tradition. The unborn ‘Legislative Council’ and its Austrian and German counterparts. The aborted ‘Congress of the Peoples of Europe’: forum for ‘State of the Union’ speech, not a electoral body. Protection of minority rights in the Constitution for Europe due to insistence of the Hungarian government; foreign to the dominant Western constitutional concepts. Representative democracy and the formal concept of law: European Laws and Framework Laws as ‘Acts of Parliament’. Strict limits on the possibility to delegate legislation: German, Italian, French roots. European Laws and Regulations: unachieved hierarchy and French precedent. Judiciary as a relative minor branch of government as in the British and French traditions. No German Verfassungsbeschwerde or Spanish recurso de amparo, but probably more annulment procedures and preliminary questions on legality and constitutionality than before. Parallels with German federal concepts: Union Law über Alles; no rigid Kompetenzkatolog and joint competences; distribution of competences not limited to law-making. More than lip service to decentralisation. Constitutional ping-pong and intertwined constitutionalism: territories d'outre- mer and outermost regions.

EC-directive, unique nature. Questions and debate. Irremovable from EC law. Change of name and context in Constitution. Concept of law. Opportunities missed. Evolution to continue.

In the case of Leyla Sahin v. Turkey of 29 June 2004, the European Court of Human Rights decided in favour of Turkey. The banning of headscarves at the University of Istanbul did not violate Article 9 of the European Convention on Human Rights (ECHR). Some years before the European Court already declared inadmissible a complaint by a Swiss teacher of younger children who was fired because she was not willing to leave off her headscarf while teaching. The complaint was manifestly ill founded. In other European countries the wearing of headscarves by teachers and pupils has lead to political and legal discussions and actions as well. In France, new legislation based on the so-called Stasi-report forbids pupils in primary and secondary state schools to wear clearly visible religious symbols. The reasons behind this act of parliament were problems allegedly caused by the wearing of headscarves. In Germany, the Federal Constitutional Court decided that a ban on headscarves for teachers needs a basis in an act of parliament of the German states. It is up to the legislatures of the Länder to decide if such a ban should be issued. In the Netherlands, existing equal treatment law has been interpreted in such a way that teachers and pupils in state schools are allowed to wear headscarves.

A wave of bans and restrictions on religious clothing is sweeping Europe. Schoolchildren, judges, jurors, civil servants, and employees are among the groups whose freedom to wear clothing which indicates their religion has been questioned, as has the right of governments, employers or schools to impose restrictions. The resulting debate has led to new laws or legal judgments in, among other countries, France, Germany, Denmark and the United Kingdom.

After the attacks by Al-Qaeda on the World Trade Centre in New York and other sites on 11 September 2001, the UK Parliament enacted the Anti-terrorism, Crime and Security Act 2001 (ATCSA). Part 4 of the Act allowed the Home Secretary to certify a person as a suspected international terrorist if he reasonably believed that the person's presence in the UK was a threat to national security and reasonably suspected that he or she was an international terrorist. If the person was subject to UK immigration control (i.e., had no right of abode in the UK, not being a British national), he or she could be removed from the UK and detained pending removal under immigration legislation. If a practical consideration (such as the absence of transport links between UK and the place to which the person could be removed) or a point of law which wholly or partly related to an international agreement (for example, where removing a person to his or her country of origin would render him or her liable to torture contrary to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)) prevented a person's removal or departure temporarily or indefinitely, the Act permitted their detention.

On 14 October 2004 the German Federal Constitutional Court, the Bundesverfassungsgericht, delivered a decision of principal character regarding the status of the European Convention on Human Rights (Convention) and the rulings of the European Court of Human Rights in the German legal order. It is the first time the Bundesverfassungsgericht has so fundamentally dealt with this topic, moreover in the composition of the complete (second) Senate (not just a chamber of the court). That the constitutional court itself attaches high importance to its decision and expected international interest is witnessed by the fact that the court has made an English translation of the decision available. This is something that does not happen very often, at least until now.

Just as some were getting ready to uncork bottles of champagne in celebration of the first anniversary of the enlargement of the European Union with ten member states, the Polish Constitutional Tribunal delivered an important judgment assessing the conformity of provisions of the Penal Procedure Code, transposing the European Arrest Warrant with the Polish Constitution. In the decision, which potentially has effects beyond the Polish legal system, the Tribunal annulled the transposing legislation (with a delay of 18 months) because it infringed Article 55(1), which states that ‘The extradition of a Polish citizen shall be prohibited’.