Peter Van Elsuwege
On 6 April 2016, a referendum on the approval of the EU-Ukraine Association
Agreement will be held in the Netherlands. This is the direct result of the
Dutch Advisory Referendum Act (DAR), which entered into force on 1 July 2015.
According to this Act, citizens can initiate a referendum on most laws and
treaties after these have been approved by both chambers of parliament. This
so-called ‘corrective’ referendum may thus be regarded as an experiment with
direct democracy giving the Dutch citizens a possibility to refute decisions
taken at the political level.
An EU-critical foundation (Burgercomité EU) and
a popular anti-establishment blog (GeenStijl) joined
forces – under the nameGeenPeil – and gathered the
necessary 300,000 signatures to call for a referendum on the approval of the
EU-Ukraine Association Agreement.
That precisely this agreement became the
subject of a public debate is a mere coincidence and can only be explained on
the basis of timing. It was simply the first legal text approved in the Dutch
parliament after the DAR entered into force and, therefore, the first occasion
to test its implications in practice.
Be that as it may, the crucial question
is what the consequences will be when the Dutch citizens reject the Approval
Act of the EU-Ukraine Association Agreement. This is not an implausible
scenario taking into account that the first polls indicate a significant majority for the ‘no’
camp.
It is striking that none of the official bodies gave a clear-cut answer to
this question. Prime Minister Rutte communicated that the government will wait for
the outcome of the referendum to decide on its implications. The European Parliament simply took note of the upcoming referendum and
‘trusts that the decision of the Dutch people will be taken on the basis of the
merits of the agreement, recognising its tangible effects on the EU and the
Netherlands in particular.’ European Commission President Juncker, for his part, warned the Dutch population that a no vote could ‘open the
door to a large continental crisis’ without however clarifying why this would
be the case.
In principle, the legal implications of a Dutch no vote may be rather
limited. The referendum is consultative and there is a turn-out requirement of
30 per cent. However, if the Approval Act is rejected by a significant majority
of the population, the political leaders cannot simply ignore the outcome. This
also happened after the consultative referendum on the Treaty establishing a
Constitution for Europe back in 2005.
Despite its consultative nature, the no
vote in that referendum implied that the Netherlands was unable to ratify the
constitutional treaty. Taking into account the requirements of the EU Treaty
amendment procedure (Article 48 TEU), this treaty could therefore simply not
enter into force. One may argue that also the EU-Ukraine Association Agreement,
as a so-called mixed agreement signed by the EU and its 28 Member States,
requires ratification by all parties before it can enter into force. However,
there are significant differences between the amendment of EU primary law and
the ratification of a mixed agreement.
Most significantly, a large part of the
EU-Ukraine Association Agreement belongs to the EU’s exclusive competences,
either explicitly (such as the trade parts belonging to the Union’s Common
Commercial Policy) or implicitly (due to the EU’s implied powers doctrine as
codified in Article 3 (2) TFEU). A decision of the Netherlands not to ratify
the EU-Ukraine Association Agreement may therefore not have the same
far-reaching consequences.
A pragmatic solution to such a (so far hypothetical) situation could be the
adoption of a so-called ‘adjusting protocol’ to the agreement. This is
precisely what happened after the Swiss Confederation was not in a position to ratify the European
Economic Area (EEA) Agreement in the 1990s.
The most visible consequence of
such a protocol would be the formal amendment of the agreement, implying that
“the Netherlands” should be deleted as one of its contracting parties. As a
result, those provisions of the Association Agreement belonging to Member State
competences would not be applicable in the Netherlands.
One could, for
instance, think about the provision on mobility of workers (Art. 19 of the
Agreement). Taking into account that the most significant parts of the
agreement belong to EU competences, the impact of a Dutch non-participation
would thus be rather limited. More important, however, will be position of the
Netherlands within the Council, which still needs to formally conclude the agreement
on behalf of the EU.
The European Commission submitted its proposal on 23 May 2013 and the European Parliament already ratified the agreement on 16 September
2014, in parallel with the Verkhovna Rada of
Ukraine. In accordance with Article 218 (6) TFEU, the Council shall now adopt
the decision concluding the agreement. Significantly, such a decision is still
pending and has to be adopted by unanimity.
Arguably, a negative outcome in the Dutch referendum should not affect the
formal approval of the agreement on behalf of the EU. After all, the scope of
the referendum is limited to the question whether the Dutch citizens accept or
reject the Approval Act of the EU-Ukraine Association Agreement as adopted in
the Dutch Parliament. It, therefore, only concerns the participation of the
Netherlands to the agreement.
As far as the EU’s participation is concerned, a
different ratification procedure applies involving a proposal of the
Commission, the consent of the European Parliament and the adoption of a Council
decision concluding the agreement. A (hypothetical) Dutch veto to the adoption
of the Council’s decision as a result of a negative referendum would neglect
the very essence of this distinction.
It would not be a victory for democracy
as proclaimed by the Dutch initiators of the referendum but rather the
opposite. Allowing a relatively small part of the population in a relatively
small member state to block the entry into force of an agreement which is
approved by the national parliaments of 29 countries and the European
Parliament would be very cynical. It would also undermine the consistency and
legitimacy of the EU’s external action taking into account that other, largely
comparable agreements would remain unaffected.
Finally, a significant part of the Association Agreement already
provisionally entered into force. A Dutch decision to reject the approval act
will not automatically affect this practice, precisely because the provisional
application only concerns those matters falling within the Union’s competence.
This caveat is explicitly included in the relevant Council Decisions. In other words, the practical legal
implications of the Dutch referendum may be expected to be minimal, even if the
ratification of the agreement in the Netherlands would be rejected.
The
consequences would be more significant at the political level. An overwhelming
no vote would be rather embarrassing for the Dutch government at a moment it is
holding the rotating EU Council Presidency. It would also be annoying for the
EU as such, taking into account the upcoming Brexit referendum and the rise of
Euroscepticism on the continent.
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