Friday, November 04, 2016

How Holland's 'mini-Brexit' is about to be ignored

Published on EUObserver

As some may remember, the Netherlands had their own mini-version of Brexit in April of this year, when a majority of Dutch voted against the EU-Ukraine Treaty in a non-binding referendum which had been triggered by campaigners eager to give the establishment a good kicking. Something in which they succeeded.

Since then, Dutch Prime Minister Rutte has tried to find a way to avoid that the Netherlands would not have to veto ratification. It's the only EU member state which didn't agree to the Treaty yet.
Rutte's plan is to secure a “legally binding declaration” to the Treaty at the EU Summit in December, which should stress that it doesn't lead to Ukrainian EU membership or the Netherlands providing any extra funds to the country beyond those already committed and that it also doesn't oblige Dutch military cooperation with Ukraine. Such declarations are a well-established practice at the EU level to deal with cumbersome member states and have been applied for example to deal with the Irish no – vote against the Lisbon Treaty and more recently, with Wallonia's opposition to the EU-Canada trade deal CETA. There always are differences as to how “binding” such declarations are : sometimes under national law, sometimes at the EU level, sometimes only according to “international law”, giving lawyers a field day, helpfully confusing any critics.

Whereas the “EU27” seem happy to give Dutch PM Rutte whatever declaration he needs and Ukraine isn't needed to sign anything, Rutte's particular problem is that the coalition of his centre-right VVD with the centre-left PvdA doesn't enjoy a majority in the Dutch Senate, which is also needed to pass the EU-Ukraine Treaty. So far, of all the opposition parties, only the centrist, EU-federalist D66 party has suggested it will support Rutte's solution while the Christian democratic CDA hasn’t committed to support it just yet. Its leader Sybrand Buma has stated that Rutte's solution is unacceptable, saying: “if the Lower House ignores [the referendum result], we're fooling the people” as the declaration “would make clear that things that aren't in the Treaty really aren't in the Treaty” while it “does not change the Treaty. Still, it’s rumoured that the party would allow its Senators, which seem more keen to approve the deal than the party leadership, a free hand in deciding how they'll vote, so a solution may be near.

Still, the legislative process in the Dutch Parliament will only be activated after Rutte has secured his declaration at the EU Summit of 15 and 16 December, so it’s not excluded that there isn’t enough time to complete it before the Dutch legislative elections in March 2017. Those may result in less support for the ruling coalition and complicate the proposed solution.

This all happens to the backdrop of how the “European Constitution” was passed by the Dutch Parliament in the form of the Lisbon Treaty, despite a no vote in the historic Dutch referendum in 2005.

The whole issue is obviously made even more complex by the fact that many Dutch died in the attack on the MH17 plane over Ukraine, which investigators have blamed on Russia, while there's the ever more assertive policies of the Kremlin, which would without any doubt use a Dutch veto against the EU-Ukraine Treaty in its propaganda. Also, currently, the agreement is being applied on a provisional basis and a Dutch law withdrawing the mandate for the Dutch government to sign would in theory mean that the Treaty can no longer be provisionally applied but there is no precedent for that. That said, these considerations may trump concerns that ignoring a popular referendum on an EU issue is toxic and may only contribute to Euroscepticism.

If the Dutch government would effectively veto the EU-Ukraine Treaty, it looks like it would be the first time since the Swedish no vote against joining the euro in 2003 that an EU referendum which went the wrong way for Brussels would be respected. Thereby the jury is still out for Brexit, which hasn't happened yet, and for the Danish no vote against giving up a range of national opt-outs from EU cooperation. In the latter case, the EU Commission so far refuses to be flexible so Denmark can stay in Europol while keeping its opt-outs. The Swiss 2014 referendum vote to restrict freedom of movement from the EU, on the other hand, is about to be ignored, as the Swiss Parliament seems keen not to open the EU-Swiss arrangement and risk its exemption from ECJ rule.

Now we can likely also add the Dutch referendum on the EU-Ukraine Treaty to the list of referendums that are being ignored, just when it wouldn’t have been too hard to respect the will of voters. Redrafting the Treaty as a mere trade arrangement is something the Netherlands would agree to. It would keep the Treaty largely intact, while addressing many of the concerns expressed by Dutch no voters. The apparent refusal to drop relatively empty pledges about “increasing” Ukrainian participation to “EU-led civilian and military crisis management operations” may well come back to haunt the European Union when the Treaty becomes yet another symbol of how it may not be willing or even capable of addressing the concerns of citizens.

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