The Dutch referendum on the EU/Ukraine association agreement: What will the impact be?

Dr. Maja Brkan and Alexander Hoogenboom

On 6 April 2016, the Dutch voters – not surprisingly according to the recent polls – rejected the EU-Ukraine association agreement with 61.1 percent of votes against. While the voters came just above the 30 percent threshold, the result itself seems to be quite a convincing “nee”.

The EU has so far concluded numerous association agreements with other countries, for example with Algeria, Tunisia, Morocco, Israel, Egypt, Chile and, most recently, Kosovo. So why was the referendum organised exactly regarding Ukraine?

Summer fun?

The reason is both banal and worrying. The so-called ‘Citizen’s Committee-EU’ (Burgercomité EU), which was behind the initiative, publicly and boldly stated prior to the vote that they ‘did not care about the Ukraine’: the referendum was meant solely to weaken the EU, as well as to put the relationship between the EU and the Netherlands under pressure. The Association Agreement was simply one of the ‘actionable’ items picked from the list maintained by the Dutch Voting Council and so became a scape goat for undermining Dutch-EU relationship.

In order to be able to organise a referendum and to make it subject to the new law on referenda, entering into force just a few days after the association agreement with Ukraine should have been voted upon, the campaigners petitioned the Socialist Party (SP) and the Freedom Party (PVV) in the Dutch parliament to postpone the voting on AA in the Parliament. And it happened. Subsequently, the committee contacted the popular right-wing weblog ‘Geenstijl’ to help organise the campaign to raise the necessary signatures for a referendum. The latter agreed, calling the initiative ‘Een leuk zomerdingetje’, a summer fun thing to do.

Legal consequences at the EU level: a ticking bomb?

From a legal perspective, several issues need to be addressed. The EU-Ukraine Association Agreement falls within the category of mixed agreements, meaning that, on the side of the EU, both the EU as well as its Member States are parties to the agreement. In practice this means that all the signatories have to ratify the agreement before it can enter into force. From the side of EU Member States, they have to ratify the agreement in accordance with their constitutional tradition. From the side of the EU, the European Parliament has to give its consent and the Council needs to vote with unanimity (Article 218(8) TFEU). The question is, of course, what legal consequences the NO vote will have for the actual Agreement.

On the one hand, it is yet to be seen whether the Dutch government takes the public opinion into account and whether or not it will nevertheless ratify the agreement. The referendum is what is termed ‘advisory corrective’: a non-binding plebiscite addressing the desirability of laws enacted, including those approving certain international treaties. As such, legally, there is no obstacle to Dutch ratification of the Association Agreement. Politically, however, the matter is a different one: the government, and the ruling coalition, already lack popular support. Prime Minister Rutte can therefore not afford to simply ignore the result. Indeed, he has already promised to take the ‘nee’ seriously and announced that would not ratify the agreement ‘as [it] is’. Nonetheless, it remains hard to predict how seriously one should take this: the Dutch lack a constitutional tradition as regards referenda, with the only other referendum held at national level being the 2005 referendum on the Treaty Establishing a Constitution for Europe.

On the other hand, the NO vote might have an impact on the agreement itself. It is possible that the Dutch government will require a renegotiation of the agreement in the sense of softening the clause on potential accession of Ukraine to the EU. However, with regard to other parts, since the arguments of the NO campaign have little to do with the content of the agreement itself, it is rather unclear which parts of the agreement would need to be renegotiated. In fact, in the Netherlands, the politicians are still trying to unravel what exactly is the message that the voters were trying to cast. In addition, as all other Member States of the EU have already ratified the agreement it is unlikely that the Netherlands would find much support for extensive amendments to the text.

Another option is to draft an opt-out for the Netherlands. Although this option is not used very often, it could potentially be a plausible solution for the current conundrum. A comparable opt-out is the one of Ireland and the UK not being signatories of the Schengen Agreement. Within the EU, there are other important opt-outs: Denmarkand UK have opted out of the monetary union and those two countries together with Ireland have an opt out from the area of freedom, security and justice.

 However, it is not sure whether such an opt-out of the Netherlands should be limited only to certain provisions depending on the type of competence of EU for a particular policy matter. With regard to the provisions of the Association Agreement relating to Common Foreign and Security Policy, an opt-out would be legally possible, for example by using a protocol stating that the Agreement does not apply for the Netherlands except for parts that are already subject to provisional application.

However, with regard to provisions that fall within EU exclusive competence, such as common commercial policy (trade), an opt-out would be both legally and practically difficult. Legally because in the area of exclusive competence, the Netherlands would need to get a special empowerment from the Union in order to be able to act on its own (pursuant to Article 2(1) TFEU). Practically, opting out from trade provisions would face immense difficulties. Not only would this be difficult because this part of the Association Agreement already provisionally applies, but also for another reason: if Ukrainian goods were imported to EU under lower customs tariffs, how could the goods circulate freely within the EU if the Netherlands would not apply these lower customs tariffs due to its opt-out to the Association Agreement? In essence, the EU would become a free trade area rather than a customs union.

It therefore seems most likely that the content of the agreement will remain unchanged. It is most probable that the Agreement will (continue to) be provisionally applied until the final solution on the Dutch position is reached. Provisional application of an agreement is namely, according to Article 218(5) TFEU, possible before its entry into force. The EU-Ukraine association agreement was adopted in 2014 and is already being applied provisionally. Since 2014, the titles on Justice, freedom and security (Title III), on Economic and sector co-operation (Title V), on 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 had provisional application since the beginning of 2016. A provisional application is common with regard to international agreements and has happened on more than one occasion, including for the Association Agreements with Georgia and Moldova. Such provisional application of association agreements requires unanimity in the Council following Article 218(5) juncto 218(8) TFEU.

Potential influence on Brexit and Turkey’s membership in the EU

Perhaps an even more important question is whether a Dutch NO vote could have an influence on other high profile association and accession agreements. A pertinent example in this regard is Turkey. Recently, the EU leaders promised to reopen a chapter of the long-frozen accession negotiations in return for Turkey’s help with the EU refugee crisis.  Turkey, which applied for the full EU membership already in 1987, became an official candidate country in 1999. Accession negotiations started in 2005, but were not progressing, with both sides dragging their feet. With the current renewed impetus, and the opening of some chapters for negotiation, future EU membership of Turkey again seems a real, albeit currently remote, possibility.

There is no direct legal link between the EU-Ukraine Association Agreement and the potential future Accession Agreement with Turkey. The link between the two, however, goes over the political bridge of the Brexit where the results of the referendum on 23 June 2016 might be influenced by both the results of the Dutch referendum as well as by the question of potential accession of Turkey to the EU. The UK public debate already confirmed that voters would be likely to vote in favour of leaving the EU should Turkey join. Politically, it is therefore to be expected that the accession negotiations with Turkey will slow down and may even come to halt before the Brexit referendum. Also, both France and Austria are determined to hold referenda for accession of Turkey, and to that list one might – in the light of recent events - perhaps also add the Netherlands. Moreover, the Cyprus question will probably also slow down the negotiations with Turkey, regardless of Brexit.

Legally, however, the Dutch rejection of the EU-Ukraine Association Agreement will have no implications for the potential negotiation of an Accession Agreement with Turkey. The two types of agreements show rather differences than similarities. While the EU-Ukraine agreement is a mixed agreement concluded with the consent of the European Parliament and unanimity in the Council (Articles 218(6 and 8) TFEU), the accession agreement is concluded only between the Member States of the EU and the acceding state (Article 49 TEU). Furthermore, with regard to the legal base, the EU-Ukraine Association Agreement was based on Articles 31(1), 37 TEU and 217 TFEU. While Article 217 TFEU gives the Union a general competence to conclude association agreements, the other two Articles concern the Common foreign and security policy (CFSP). The Accession Agreement, however, not being a mixed agreement, is a classical international agreement between several states and thus has no legal base as such in the European treaties: Article 49 TEU simply stipulates the basic requirements and procedure for accession. Moreover, an Accession Agreement– contrary to Association Agreements – has to date not been provisionally applied. Therefore, the procedure for conclusion as well as ratification requirements of these two types of agreements are different, with accession agreements needing to be ratified (only) by EU Member States and the future Member State.

In conclusion, the Dutch referendum should be taken as a warning for the European Union leaders that things can rather easily go wrong if the EU does not sufficiently engage with the domestic level in the context of some of its more controversial decision-making. The almost complete apathy of the Dutch government towards the referendum and the lack of serious attempts at defending the decision to sign the agreement almost certainly contributed to the rejection of the Association Agreement with the Ukraine. The lesson that should be therefore drawn for the future is, as the House of Lords EU committee recently argued for the UK, that Member States should actively take responsibility for their EU Membership, and the decisions they take in that context, and be prepared to defend them at the national level.

Barnard & Peers: chapter 2, chapter 25

Photo credit: www.dawn.com

The CJEU transforms family reunion for Turkish citizens

Steve Peers

In this week’s judgment in Dogan, the Court of Justice in effect established a new set of rules for family reunion for most Turkish citizens living in the EU – although those rules will still differ in each Member State.

The case concerned Mrs. Dogan’s application to come to Germany to live with her husband, after spending thirteen (by now sixteen) years apart. She was refused on the grounds that her German language skills were not satisfactory, for even though she passed the relevant language test, her written German was not satisfactory due to illiteracy.

This raised two legal issues. First of all, since her husband ran a business in Germany, did the national rule breach the 1970 Protocol to the EU/Turkey association agreement, which prohibits new restrictions on establishment or the provision of services? Secondly, did the national rules comply with the EU’s family reunion Directive, which permits Member States to require family members to comply with ‘integration measures’?

The Court of Justice decided to answer only the first question. This means that its ruling is only relevant to Turkish nationals, rather than all third-country nationals. Having said that, Turkish nationals make up a large proportion of all third-country nationals in the EU, and the Court’s judgment on this point applies to all Member States, including the UK, Ireland and Denmark, which do not apply the family reunion Directive.

However, it should be noted that the Advocate-General’s opinion also argued that the integration requirement breached the family reunion Directive (see discussion here), and that there is another case before the CJEU which raises this issue (notably the K and A case; see further the Commission's recent guidance on the Directive, discussed here).

The judgment

Previously, the CJEU had held that the standstill on new restrictions on establishment and provision of services was binding, had direct effect, and prevented any new measures making it more difficult to exercise self-employment or provide services. But the previous case law only concerned those persons who were actually self-employed or providing services. Could it extend also to the rules regulating the family members of such persons?

The CJEU said it could. In the Court’s view, where the national law made family reunion ‘difficult or impossible’, the establishment of a self-employed person could be ‘negatively affected, since that person would ‘find himself [or herself] obliged to choose between his [or her] activity in the Member State concerned and his [or her] family life in Turkey’. In this case, the national rule made family reunion more difficult, and so violated the standstill clause.

Finally, the Court noted that a measure infringing the standstill clause could be permissible, if it could be ‘justified by an overriding reason in the public interest’, and was ‘suitable to achieve the legitimate objective pursued and does not go beyond what is necessary in order to attain it’. In this case, assuming that the objectives of the national law (preventing forced marriages and promoting integration) were overriding reasons in the public interest, the national law failed the proportionality test, since the refusal of an application on linguistic grounds was automatic, without taking account ‘of the specific circumstances of each case’.

Comments

In order to assess the impact of the Court’s ruling, it is necessary first of all to determine its scope. The geographical scope, as noted already, is all Member States. Also, while the family members of Turkish nationals will usually reside in Turkey, the judgment should logically apply also if those family members reside in another third State, or in a Member State. Although in the latter case, it is possible that EU immigration law, such as the long-term residents’ Directive, might also apply, that legislation is without prejudice to more favourable rules in treaties between the EU and third States.

The temporal scope, as established in the previous Dereci case, is 1973 for the first nine Member States (the date of entry into force of the 1970 Protocol to the association agreement), and the date of joining the EU for all other Member States. That means that the national law in force on that date regarding family reunion cannot be made worse for those joining Turkish nationals. Moreover, as established in Toprak and Oguz, if the national law is made more liberal after that date, the standstill also prevents any reversion to the more restrictive law.

Next, what is the personal scope of the judgment? There are three facets to this issue: the sponsor (ie the Turkish citizen in the EU); the family members who seek to join them; and issues of nationality law.

For the Turkish citizen in the EU, the standstill which the Court discussed here also applies to providers of services, but not (as the Court established in Demirkan) to recipients of services. There is also a parallel standstill relating to Turkish workers: according to Article 13 of Decision 1/80 of the EU/Turkey Association Council, the rules on access to employment of Turkish workers and their family members cannot be made more restrictive either. The case law on this provision (see most recently the Demir judgment) makes clear that the standstill on workers and the standstill on establishment must be interpreted the same way (although for the first nine Member States, the standstill on workers took effect in 1980, rather than 1973). In particular, the standstill on workers applies to measures concerning their first admission. It must logically also apply to rules on the first admission of the worker’s family members, since workers, like self-employed persons, would otherwise face a choice between carrying on with employment in a Member State and enjoying family life in another country.

As for family members, while this case concerned spouses, it would logically apply to any other family member as well (Mrs. Dogan had also originally applied for two of the couple’s four children to be admitted also). Simply put, the Turkish citizen in the EU could equally face a choice between his or her economic activity and family life with unmarried partners, children, parents or other family members as well.

Next, as for issues of nationality, one question is whether the primary right-holder and/or the family members concerned can still rely on the rule, if they are dual citizens of Turkey and another country. This question appeared to be answered by the CJEU in Kahveci and Inan, in which it ruled that dual citizens of Turkey and a Member State can rely on the EU/Turkey association rules. But in the pending case of Demirci, concerning social security, an Advocate-General has recently argued that dual citizens cannot invoke the rules. The CJEU will likely clarify this issue soon.

Another nationality-related question is whether third-country national family members of Turkish nationals (in this context, meaning family members who are not nationals of Turkey or a Member State) are covered by the standstill rules. It is clear that they are, by analogy with the recent judgment in Dulger.

Next, what is the material scope of the judgment? In other words, what type of rules relating to family reunion are covered? The test is whether the national rule makes family reunion difficult or impossible. This is apt to cover waiting periods, in-country applications, income requirements, fees for applications (see the Sahin judgment), age limits for spouses or children, and accommodation or sickness insurance rules. Furthermore, the standstill should equally apply as regards different categories of sponsors: for instance, more favourable rules that apply to groups such as refugees, long-term residents or highly-skilled workers cannot be made more restrictive either.  

Finally, what about the possibility of justification? The CJEU did not rule directly in this case as to whether prevention of forced marriages and integration were possible grounds of justification, although in Demir it ruled that prevention of irregular immigration could be such a ground. An example of a new rule which could surely be justified would be a ban on admission of family members if they have received a five-year prison sentence, as compared to a ten-year threshold previously. On the other hand, it seems doubtful that a national rule which simply aims to reduce the numbers of Turkish persons’ family members entering the country can be justified, in light of the overall objective of the association agreement of eventually providing for free movement of people and preparing for Turkish accession.

In any event, it is clear from the Dogan judgment that even if a new national restriction is justified, refusals cannot be automatic and must take account of individual cases. The requirement that the restrictions be ‘suitable’ also suggests that they must be the only possible means to achieve their end. More generally, it is surely the case that like any derogation from EU law, such restrictions and their application must also be judged in light of the EU Charter, namely the right to family life and rights of the child. 

Barnard & Peers: chapter 24, chapter 26

Is the European Union an ideal worth dying for? Thoughts on the future of Ukraine and the EU

Steve Peers

Undoubtedly there were many reasons to find fault with the Yanukovych government of Ukraine, but the catalyst for start of the protests which ultimately brought his government down was his refusal to sign an association agreement with the European Union. Some of the protesters killed last week were even flying the Union flag. Let's assume that fresh elections are held, as planned, in the near future (on the same day as the European Parliament elections) and result in a pro-European government. In that case, this apparently strong enthusiasm of a proportion of the Ukrainian population for joining the European Union will raise fundamental questions about the Union's future.

The initial steps following the election will be relatively easy. First of all, the association agreement will be quickly signed and ratified. This treaty goes much further to link Ukraine to the EU's legal order than the prior Europe Agreements (with Central and European countries) did, and the current Stabilisation and Association Agreements (with the Western Balkans) do. In particular, it contains an enormous list of specific EU laws which Ukraine must comply with by certain dates.

Another potential 'early harvest', which would be very popular with the Ukrainian population, would be the abolition of the visa requirement for Ukrainians to visit the EU. There is already a process to this end set up between the EU and Ukraine, and it could certainly result in a successful result in the near future if there is enough effort on the Ukrainian side - as the examples of the Western Balkans and Moldova prove. Various other treaties on specific issues could also be agreed between the EU and Ukraine. Yet I doubt if this will be enough.

The Copenhagen and Thessaloniki declarations, which set out the EU's clear willingness to admit the countries of (respectively) Central and Eastern Europe and the Western Balkans if the relevant conditions are met, have formed the core of the EU's relations with the countries concerned since their adoption. The realistic promise of EU membership for these countries formed the basis of broad and stable political support for widespread economic and political reform.Of course, in some cases, the promise of possible EU accession is not enough to overcome a country's manifold problems, as the example of Bosnia and Hercegovina shows. But it is hard to see how that country would be better off without that promise.

Indeed, the recent history of Ukraine arguably shows that the absence of a commitment by the Union to admit the relevant country in principle potentially weakens the pro-reform forces politically. Following the Orange Revolution of 2004, the EU would not commit to possible enlargement, suggesting instead the close association agreement which has since been negotiated, and pro-reform forces faced difficulties ever since. Of course, the EU's lack of enthusiasm for Ukrainian membership cannot have been the only reason for those difficulties. But again, the pro-reform forces would surely have been better off if that commitment had been made. You cannot build broad and stable political support for widespread economic and political reform around the goal of EU membership when the EU palpably doesn't want your country to join.

So this time, should the EU make a genuine commitment to admit Ukraine if the conditions are right? On the one hand, Ukraine fits the geographic criteria for membership, and has various historical, cultural and linguistic links with current Member States. It's very diverse, and its borders are historically arbitrary, but the same could be said of other Member States (and non-Member States too). If the political and economic circumstances there change, the potential accession process could always be put on hold for as long as necessary, as it has been in Bosnia and Hercegovina. Its accession would be of major strategic importance for the EU, significantly limiting Russia's sphere of influence in Europe.

On the other hand, the Union's elites and its population clearly have 'enlargement fatigue', and Ukraine is bigger, poorer and potentially more volatile than most of the countries which have joined in recent years. The weeks leading up to a European Parliament election are not an ideal time for politicians to consider making such a brave political commitment.

How can these conflicting considerations be reconciled? The Union has gone as far as it can in terms of developing a close association with Ukraine, in the form of the association agreement which will likely soon be signed. More protocols could be added to this treaty, but that would miss the point: pro-reform forces in Ukraine need a concrete commitment to EU membership as an anchor to build broad support for a significant programme of political and economic reform.

What the Union needs, then, is not a new form of association: it is very good at coming up with them, but that won't be sufficient in this case. What it needs instead is a new form of membership. Let's call it 'associate membership' (although that term is bound to be confused in practice with mere association) for convenience's sake.

An associate member would be legally a member of the EU, with many of the rights and obligations of EU membership, but not all of them. For instance, addressing one of the biggest public concerns in current EU Member States, the free movement of people would not fully apply. This is different from the transitional period for free movement of workers that has applied to many EU enlargements, in that there would be no fixed end date for the limitations concerned. Indeed, there would be no legal commitment to admit the country concerned as a full member of the EU, leaving that possibility subject to the current system for agreeing accession of new Member States.

This new possibility need not be confined to Ukraine: it could also be used for Western Balkan states, Turkey and other eastern neighbourhood countries. Indeed, it could also be used for existing Member States which may wish to scale back their current degree of membership in the EU without leaving it altogether. The United Kingdom would be the most obvious candidate for such a change of status, participating perhaps in a 'common market' version of associate membership.

Of course, the associate members could not expect to vote on EU measures which did not apply to them yet (again differentiating them from new full Member States), including any Treaty amendments that did not apply to them. Difficult issues would arise as regards their participation in EU institutions, but these could surely be solved if the political will were present.

Undeniably, this new form of EU membership could only be introduced by way of Treaty amendment, and many Member States dread starting the Treaty amendment process. But, if the political will were there, it would need only a minor amendment to the Treaties to provide for the existence of the new concept, with the details to be worked out in the treaties with the countries concerned, supplemented perhaps by a general legal framework governing the new form of EU membership (to be adopted by the Council or European Council by unanimity, with the consent of the European Parliament). This Treaty amendment could be severed from other possible Treaty amendment issues, reducing the political difficulties in negotiating and ratifying Treaty changes.

Back in 1989, the European Union responded quickly and fully to the end of the Cold War, putting in place a framework for enlargement that ultimately led to the reunification of much of the continent within the EU's legal order. The passion and enthusiasm of pro-European Ukrainians, as well as the Union's need to think creatively about ways to address its relative decline of influence in regional politics, suggest that the time is ripe to create a new form of membership in the European Union.

Barnard & Peers: chapter 2, chapter 24

The Swiss vote against free movement of people and the implications for the UK's membership of the EU

Steve Peers

There are two implications of the narrow vote in the Swiss referendum to renegotiate treaties with the EU in order to permit a quota on labour migration? First, and most immediately, the vote will affect Swiss relations with the EU. Secondly, the vote foreshadows key aspects of the debate concerning the UK’s relationship with the EU, and the possible renegotiation of EU membership.

The Swiss implications

The details of what the Swiss voted for have been incisively analysed in the Kent EU rights blog post, here: http://blogs.kent.ac.uk/eu-rights-clinic/

So what are the broader implications? There is now a domestic constitutional obligation for the Swiss government to renegotiate its free movement treaty with the EU, so that labour quotas are allowed. Of course, such a renegotiation is technically possible, but will be politically difficult, since the EU insisted upon this treaty as a quid pro quo as part of a broader package that included treaties on six other issues, such as public purchasing and aviation access. The EU can, and probably will, insist on renegotiation of some of these other treaties as a consequence.

The EU should not be criticised if it demands a renegotiation of other treaties, as it had always insisted upon this link, which is set out expressly in all the treaties concerned. The Swiss public was also always aware of it. Indeed, undoubtedly the link with the other treaties explains why the Swiss public has voted for the free movement agreement in three previous referenda (once to approve it initially, and twice to extend it to new Member States). And it is clear that the supporters of a ‘no’ vote in the new referendum made the link clear to the voting public. We must conclude that the narrow majority who voted ‘yes’ thought that this would be a price worth paying.

After all, any agreement contains an element of quid pro quo. For instance, employees might like to be paid even if they don’t work, while employers might prefer it if employees worked without pay. Obviously both sides compromise; and a ‘pick-and-choose’ approach will have consequences. If employees start working for 3 days a week instead of 5, they won’t still receive full-time pay.

The implications for the UK

When re-negotiating with Switzerland, at least some Member States will be thinking about the UK. While it used to be the case that the cost of the UK’s net contribution to the EU was the main cause for Eurosceptics, that has been joined first by doubts about the EU’s democratic legitimacy and second by concerns about large-scale immigration from new Member States. Could the UK hold a referendum like Switzerland’s?

Legally speaking, no. The UK does not have a specific free movement agreement with the EU (linked to other treaties) like Switzerland does. Rather, free movement is part and parcel of our membership of the EU. If we want to be rid of it, we either have to renegotiate our entire membership or leave the EU. As a matter of domestic law, we could hold a referendum or otherwise change the free movement rules, and breach EU law while remaining a Member. But that course would be dishonest and disreputable. If the majority of the British people don’t like a key aspect of our arrangement with the EU, we should either leave or try to change that arrangement, while being aware of the consequences of doing so.

So we could ask to renegotiate our membership as far as free movement of people is concerned (among other things, of course). This is legally possible, but politically even more difficult than the Swiss case. Indeed, as I suggested already, the negotiations with Switzerland could serve as a proxy for the possible future negotiation with the UK – much as any EU negotiations concerning an independent Scotland would be a proxy for many Member States’ concerns about their separatist movements. Spanish politicians look at Edinburgh, and think of Barcelona.

It seems likely, then, that we are about to witness a ‘dry run’ for a possible British renegotiation process. This will provide a useful laboratory to test the theory that renegotiating the UK’s EU membership, or the UK leaving the EU, would only have (in Eurosceptics’ view) positive consequences for the UK.  

Barnard & Peers: Chapter 24