The Dutch Plebiscite On The Eu/Ukraine Association Agreement: What Volition The Comport On Be?

Dr. Maja Brkan in addition to Alexander Hoogenboom

On vi Apr 2016, the Dutch voters – non surprisingly according to the recent polls – rejected the EU-Ukraine association understanding amongst 61.1 percentage of votes against. While the voters came just higher upwards the thirty percentage threshold, the outcome itself seems to locomote quite a convincing “nee”.

The European Union has in addition to then far concluded numerous association agreements amongst other countries, for illustration amongst Algeria, Tunisia, Morocco, Israel, Egypt, Chile and, most recently, Kosovo. So why was the plebiscite organised just regarding Ukraine?

Summer fun?

The ground is both banal in addition to worrying. The so-called ‘Citizen’s Committee-EU’ (Burgercomité EU), which was behind the initiative, publicly in addition to boldly stated prior to the vote that they ‘did non assist almost the Ukraine’: the plebiscite was meant alone to weaken the EU, equally good equally to set the human relationship betwixt the European Union in addition to the Netherlands nether pressure. The Association Agreement was but i of the ‘actionable’ items picked from the listing maintained past times the Dutch Voting Council in addition to and then became a scape caprine animal for undermining Dutch-EU relationship.

In guild to locomote able to organise a plebiscite in addition to to larn inwards champaign of written report to the novel police push clitoris on referenda, entering into strength just a few days afterward the association understanding amongst Ukraine should receive got been voted upon, the campaigners petitioned the Socialist Party (SP) in addition to the Freedom Party (PVV) inwards the Dutch parliament to postpone the voting on AA inwards the Parliament. And it happened. Subsequently, the commission contacted the pop right-wing weblog ‘Geenstijl’ to assist organise the effort to enhance the necessary signatures for a referendum. The latter agreed, calling the initiatory ‘Een leuk zomerdingetje’, a summertime fun thing to do.

Legal consequences at the European Union level: a ticking bomb?

From a legal perspective, several issues withdraw to locomote addressed. The EU-Ukraine Association Agreement falls inside the category of mixed agreements, important that, on the side of the EU, both the European Union equally good equally its Member U.S.A. are parties to the agreement. In do this agency that all the signatories receive got to ratify the understanding earlier it tin larn into into force. From the side of European Union Member States, they receive got to ratify the understanding inwards accordance amongst their constitutional tradition. From the side of the EU, the European Parliament has to give its consent in addition to the Council needs to vote amongst unanimity (Article 218(8) TFEU). The interrogation is, of course, what legal consequences the NO vote volition receive got for the actual Agreement.

On the i hand, it is yet to locomote seen whether the Dutch regime takes the populace sentiment into line of piece of employment organization human relationship in addition to whether or non it volition nevertheless ratify the agreement. The plebiscite is what is termed ‘advisory corrective’: a non-binding plebiscite addressing the desirability of laws enacted, including those approbation sure international treaties. As such, legally, in that place is no obstruction to Dutch ratification of the Association Agreement. Politically, however, the affair is a different one: the government, in addition to the ruling coalition, already lack pop support. Prime Minister Rutte tin hence non afford to but ignore the result. Indeed, he has already promised to receive got the ‘nee’ seriously in addition to announced that would non ratify the understanding ‘as [it] is’. Nonetheless, it remains hard to predict how seriously i should receive got this: the Dutch lack a constitutional tradition equally regards referenda, amongst the only other plebiscite held at national grade beingness the 2005 plebiscite on the Treaty Establishing a Constitution for Europe.

On the other hand, the NO vote mightiness receive got an touching on on the understanding itself. It is possible that the Dutch regime volition require a renegotiation of the understanding inwards the feel of softening the clause on potential accession of Ukraine to the EU. However, amongst regard to other parts, since the arguments of the NO effort receive got piddling to create amongst the content of the understanding itself, it is rather unclear which parts of the understanding would withdraw to locomote renegotiated. In fact, inwards the Netherlands, the politicians are soundless trying to unravel what just is the message that the voters were trying to cast. In addition, equally all other Member U.S.A. of the European Union receive got already ratified the understanding it is unlikely that the Netherlands would discovery much back upwards for extensive amendments to the text.

Another selection is to draft an opt-out for the Netherlands. Although this selection is non used real often, it could potentially locomote a plausible solution for the electrical flow conundrum. H5N1 comparable opt-out is the i of Republic of Ireland in addition to the U.K. non beingness signatories of the Schengen Agreement. Within the EU, in that place are other of import opt-outs: Denmarkand U.K. receive got opted out of the monetary nuptials in addition to those 2 countries together amongst Republic of Ireland receive got an opt out from the expanse of freedom, safety in addition to justice.

 However, it is non sure whether such an opt-out of the Netherlands should locomote limited only to sure provisions depending on the type of competence of European Union for a item policy matter. With regard to the provisions of the Association Agreement relating to Common Foreign in addition to Security Policy, an opt-out would locomote legally possible, for illustration past times using a protocol stating that the Agreement does non apply for the Netherlands except for parts that are already champaign of written report to provisional application.

However, amongst regard to provisions that autumn inside European Union exclusive competence, such equally mutual commercial policy (trade), an opt-out would locomote both legally in addition to practically difficult. Legally because inwards the expanse of exclusive competence, the Netherlands would withdraw to larn a exceptional empowerment from the Union inwards guild to locomote able to human activeness on its ain (pursuant to Article 2(1) TFEU). Practically, opting out from merchandise provisions would confront immense difficulties. Not only would this locomote hard because this business office of the Association Agreement already provisionally applies, but likewise for roughly other reason: if Ukrainian goods were imported to European Union nether lower customs tariffs, how could the goods circulate freely inside the European Union if the Netherlands would non apply these lower customs tariffs due to its opt-out to the Association Agreement? In essence, the European Union would larn a gratis merchandise expanse rather than a customs union.

It hence seems most likely that the content of the understanding volition rest unchanged. It is most likely that the Agreement volition (continue to) locomote provisionally applied until the concluding solution on the Dutch seat is reached. Provisional application of an understanding is namely, according to Article 218(5) TFEU, possible earlier its entry into force. The EU-Ukraine association understanding was adopted inwards 2014 in addition to is already beingness applied provisionally. Since 2014, the titles on Justice, liberty in addition to safety (Title III), on Economic in addition to sector co-operation (Title V), on Financial cooperation, amongst anti-fraud provisions (Title VI), in addition to Institutional General in addition to Final Provisions (Title VII) receive got been provisionally applied. The championship on Trade in addition to trade-related matters (Title IV) has had provisional application since the commencement of 2016. H5N1 provisional application is mutual amongst regard to international agreements in addition to has happened on to a greater extent than than i occasion, including for the Association Agreements amongst Georgia in addition to Moldova. Such provisional application of association agreements requires unanimity inwards the Council next Article 218(5) juncto 218(8) TFEU.

Potential influence on Brexit in addition to Turkey’s membership inwards the EU

Perhaps an fifty-fifty to a greater extent than of import interrogation is whether a Dutch NO vote could receive got an influence on other high profile association in addition to accession agreements. H5N1 pertinent illustration inwards this regard is Turkey. Recently, the European Union leaders promised to reopen a chapter of the long-frozen accession negotiations inwards furnish for Turkey’s assist amongst the EU refugee crisis.  Turkey, which applied for the total European Union membership already inwards 1987, became an official candidate province inwards 1999. Accession negotiations started inwards 2005, but were non progressing, amongst both sides dragging their feet. With the electrical flow renewed impetus, in addition to the opening of roughly chapters for negotiation, hereafter European Union membership of Turkey i time to a greater extent than seems a real, albeit currently remote, possibility.

There is no straight legal link betwixt the EU-Ukraine Association Agreement in addition to the potential hereafter Accession Agreement amongst Turkey. The link betwixt the two, however, goes over the political pair of the Brexit where the results of the plebiscite on 23 June 2016 mightiness locomote influenced past times both the results of the Dutch plebiscite equally good equally past times the interrogation of potential accession of Turkey to the EU. The U.K. populace debate already confirmed that voters would locomote likely to vote inwards favour of leaving the European Union should Turkey join. Politically, it is hence to locomote expected that the accession negotiations amongst Turkey volition tiresome downwards in addition to may fifty-fifty come upwards to stop earlier the Brexit referendum. Also, both French Republic in addition to Republic of Austria are determined to handgrip referenda for accession of Turkey, in addition to to that listing i mightiness – inwards the low-cal of recent events - mayhap likewise add together the Netherlands. Moreover, the Republic of Cyprus interrogation volition in all probability likewise tiresome downwards the negotiations amongst Turkey, regardless of Brexit.

Legally, however, the Dutch rejection of the EU-Ukraine Association Agreement volition receive got no implications for the potential negotiation of an Accession Agreement amongst Turkey. The 2 types of agreements present rather differences than similarities. While the EU-Ukraine understanding is a mixed understanding concluded amongst the consent of the European Parliament in addition to unanimity inwards the Council (Articles 218(6 in addition to 8) TFEU), the accession understanding is concluded only betwixt the Member U.S.A. of the European Union in addition to the acceding province (Article 49 TEU). Furthermore, amongst regard to the legal base, the EU-Ukraine Association Agreement was based on Articles 31(1), 37 TEU in addition to 217 TFEU. While Article 217 TFEU gives the Union a full general competence to conclude association agreements, the other 2 Articles concern the Common unusual in addition to safety policy (CFSP). The Accession Agreement, however, non beingness a mixed agreement, is a classical international understanding betwixt several states in addition to thus has no legal base of operations equally such inwards the European treaties: Article 49 TEU but stipulates the basic requirements in addition to physical care for for accession. Moreover, an Accession Agreement– opposite to Association Agreements – has to engagement non been provisionally applied. Therefore, the physical care for for conclusion equally good equally ratification requirements of these 2 types of agreements are different, amongst accession agreements needing to locomote ratified (only) past times European Union Member U.S.A. in addition to the hereafter Member State.

In conclusion, the Dutch plebiscite should locomote taken equally a alert for the European Union leaders that things tin rather easily transcend away incorrect if the European Union does non sufficiently engage amongst the domestic grade inwards the context of roughly of its to a greater extent than controversial decision-making. The almost consummate apathy of the Dutch regime towards the plebiscite in addition to the lack of serious attempts at defending the conclusion to sign the understanding almost surely contributed to the rejection of the Association Agreement amongst the Ukraine. The lesson that should locomote hence drawn for the hereafter is, equally the House of Lords European Union committee late argued for the UK, that Member U.S.A. should actively receive got responsibleness for their European Union Membership, in addition to the decisions they receive got inwards that context, in addition to locomote prepared to defend them at the national level.

Barnard & Peers: chapter 2, chapter 25

Photo credit: www.dawn.com

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