Dr. Maja Brkan and Alexander Hoogenboom
On April 6, 2016, Dutch voters rejected the EU-Ukraine association agreement. The vote, with 61.1 percent voting against the agreement, was not unexpected based on recent polling. While voter turnout barely passed the 30 percent minimum, the outcome itself delivers a resounding “no.”
The EU has established numerous association agreements with countries like Algeria, Tunisia, Morocco, Israel, Egypt, Chile, Kosovo, and others. So why was a referendum held specifically for Ukraine?
Summer fun?
The reason is both simple and concerning. The group behind the referendum, the “Citizen’s Committee-EU” (Burgercomité EU), openly stated before the vote that they “didn’t care about Ukraine.” Their aim was to use the referendum to weaken the EU and strain the relationship between the Netherlands and the EU. The Association Agreement, as an available item on the Dutch Voting Council’s list, became a means to undermine Dutch-EU relations.
To hold the referendum under the new referendum law, which took effect shortly after the scheduled vote on the Ukraine agreement, the campaigners asked the Socialist Party (SP) and the Freedom Party (PVV) in Parliament to delay the vote. Their request was granted. The committee then collaborated with the popular right-wing blog “Geenstijl” to gather the necessary signatures for the referendum, a move the blog called “a fun summer thing to do.”
Legal consequences at the EU level: a ticking bomb?
Legally, the EU-Ukraine Association Agreement is a mixed agreement, meaning that both the EU and its Member States are parties. All signatories must ratify the agreement before it can be implemented. EU Member States ratify according to their constitutional processes, the European Parliament must consent, and the Council must vote unanimously (Article 218(8) TFEU). The question now is what legal ramifications the NO vote will have on the Agreement.
The Dutch government’s response to public opinion and whether they will still ratify the agreement remains to be seen. The referendum is considered an “advisory corrective”: a non-binding vote on the desirability of enacted laws, including those approving international treaties. Legally, nothing prevents the Netherlands from ratifying the Association Agreement. Politically, it’s a different story: the government and the ruling coalition already face low public support. Prime Minister Rutte cannot ignore the result and has stated he would not ratify the agreement “as is.” How seriously this should be taken is unclear. The Netherlands lacks a history of referendums, the only other being the 2005 referendum on the Treaty Establishing a Constitution for Europe.
The NO vote could impact the agreement itself. The Dutch government might request a renegotiation to soften the clause on Ukraine’s potential EU accession. Given that the NO campaign’s arguments were unrelated to the agreement’s content, it’s unclear which parts would need renegotiation. Politicians in the Netherlands are trying to decipher the voters’ message. Additionally, since all other EU Member States have ratified the agreement, it’s unlikely the Netherlands would find support for significant amendments.
Another option is an opt-out for the Netherlands. While uncommon, it’s a possible solution. A similar example is Ireland and the UK not being part of the Schengen Agreement. Within the EU, other opt-outs exist: Denmark and the UK opted out of the monetary union, and these two countries, along with Ireland, have an opt-out from the area of freedom, security, and justice.
Whether such an opt-out for the Netherlands should be limited to specific provisions based on EU competence is uncertain. For Common Foreign and Security Policy provisions, an opt-out might be possible, for instance, through a protocol stating that the Agreement doesn’t apply to the Netherlands except for parts already provisionally applied.
An opt-out for provisions under exclusive EU competence, such as common commercial policy (trade), would be difficult legally and practically. Legally, the Netherlands would need special authorization from the Union to act independently (Article 2(1) TFEU). Practically, opting out of trade provisions presents challenges. Not only is this challenging because this part of the Association Agreement is already provisionally applied, but also because if Ukrainian goods were imported to the EU under lower customs tariffs, free circulation within the EU would be difficult if the Netherlands, due to its opt-out, didn’t apply them. The EU would become a free trade area rather than a customs union.
Therefore, the agreement’s content will likely remain unchanged. The Agreement will probably continue to be provisionally applied until a solution is found for the Netherlands. Provisional application, according to Article 218(5) TFEU, is possible before an agreement’s entry into force. The EU-Ukraine association agreement, adopted in 2014, is already under provisional application. Since 2014, the titles on Justice, freedom and security (Title III), Economic and sector co-operation (Title V), Financial cooperation, with anti-fraud provisions (Title VI), and Institutional General and Final Provisions (Title VII) have been provisionally applied. The title on Trade and trade-related matters (Title IV) has been provisionally applied since early 2016. Provisional application is common for international agreements and has occurred before, including with the Association Agreements with Georgia and Moldova. Unanimity in the Council is required for the provisional application of association agreements, following Article 218(5) in conjunction with 218(8) TFEU.
Potential influence on Brexit and Turkey’s membership in the EU
Perhaps a more crucial question is whether the Dutch NO vote might influence other high-profile association and accession agreements, such as Turkey’s potential membership. EU leaders recently promised to reopen a chapter of the stalled accession negotiations with Turkey in exchange for assistance with the EU refugee crisis. Turkey, which first applied for full EU membership in 1987 and became a candidate country in 1999, began accession negotiations in 2005. However, progress was slow, with both sides hesitant. With renewed momentum and the opening of some chapters, Turkey’s future EU membership, while distant, seems possible again.
No direct legal link exists between the EU-Ukraine Association Agreement and a potential future Accession Agreement with Turkey. The connection is political, through Brexit. The June 23, 2016 referendum on Brexit could be influenced by the Dutch referendum results and Turkey’s potential EU accession. The UK public debate indicated that voters might be more likely to support leaving the EU if Turkey joined. Politically, it’s expected that accession negotiations with Turkey will slow down or even stop before the Brexit referendum. France and Austria plan to hold referendums on Turkey’s accession, and the Netherlands might follow suit. Furthermore, the Cyprus issue may hinder negotiations with Turkey, regardless of Brexit.
Legally, the Netherlands rejecting the EU-Ukraine Association Agreement won’t impact potential negotiations for an Accession Agreement with Turkey. The agreements are quite different. The EU-Ukraine agreement is a mixed agreement requiring the European Parliament’s consent and unanimity in the Council (Articles 218(6 and 8) TFEU). In contrast, an accession agreement is concluded only between the EU Member States and the acceding state (Article 49 TEU). The legal bases also differ. The EU-Ukraine Association Agreement is based on Articles 31(1), 37 TEU, and 217 TFEU. Article 217 TFEU grants the Union general competence to conclude association agreements, while the other two articles concern the Common Foreign and Security Policy (CFSP). The Accession Agreement, not being a mixed agreement, is a standard international agreement between states and lacks a specific legal basis in European treaties. Article 49 TEU simply outlines the accession requirements and procedure. Unlike Association Agreements, Accession Agreements have never been provisionally applied. Therefore, the conclusion and ratification procedures differ. Accession agreements require ratification only by EU Member States and the future Member State.
Ultimately, the Dutch referendum serves as a warning to European Union leaders. Things can easily go wrong if the EU fails to adequately engage with its Member States on controversial decisions. The Dutch government’s indifference toward the referendum and their inadequate defense of the decision to sign the agreement likely contributed to its rejection. As the House of Lords EU committee recently argued for the UK, Member States should actively take responsibility for their EU membership, the decisions made within that context, and be ready to defend them domestically.
Barnard & Peers: chapter 2, chapter 25
Photo credit: www.dawn.com