TRIBUNAL CONSTITUCIONAL Portugal

RULING Nº 531/98

29 of July of 1998

Headnotes:

Following the 4th constitutional reform (1997), the Constitution now makes provision for referenda on questions on which treaties are proposed which relate to Portugal’s participation in international organisations. Such treaties have to be approved by the Assembly of the Republic (except peace treaties and treaties rectifying borders). The treaty (or convention) on the question put to a referendum will of course already have been signed by the government but not yet formally approved by the Assembly prior to ratification by the President of the Republic.

However, no referendum on the «European question» should be allowed to call into question Portugal’s past participation in or future membership of the European Union.

Summary:

With a view to the preliminary review of its constitutionality and legality (review which is in fact compulsory under the Constitution and the organic law on referenda), a proposal for a referendum submitted to the President of the Republic by the Assembly of the Republic was referred by the President to the Constitutional Court. The question proposed for the referendum was: «Do you agree that Portugal should continue to participate in the process of construction of the European Union through the Treaty of Amsterdam?» The proposal also stipulated that citizens registered as voters within the national territory and Portuguese citizens resident in the member States of the European Union would be entitled to take part in the referendum.

The Constitutional Court found that the question asked did not meet the requirements of clarity and exactitude because it was open to more than one interpretation and the wording made it impossible to determine the significance of the reference to the Treaty of Amsterdam. Nor did it fulfil the objectivity requirement because the question was worded in such a way as to force voters who were in favour of Portugal’s continued participation in the process of construction of the European Union to vote yes and the key issue of the referendum, namely the changes brought about by the adoption of the Treaty of Amsterdam, was played down.

The court therefore declared the proposed referendum unconstitutional and unlawful and as a result the President of the Republic rejected the proposal.

Supplementary information:

The decision of the court was taken by a majority. Six judges delivered dissenting opinions.

Cross-references:

For the status of referenda after the 4th constitutional reform, see decision 288/98.