Dutch referendum: Future of EU and Ukraine at stake?

Ukraine–EU Association Agreement referendum will be held in the Netherland on April, 6.

Questions:

1. How do you see chances of both respective camps to win the referendum?

2. If people say no what consequences do you expect for the EU, the Netherlands?

Answers:

Carine Germond, Fellow, Netherlands Institute for Advanced Studies, Assistant Professor of Contemporary and International History, Maastricht University

1. The outcome is somewhat hard to predict, especially as recent polls suggest that the “Yes” and “No” camps are neck and neck, even though the opponents to the agreement seem to be in the lead for now. Since the beginning the No campaigners have been very active and have seemingly struck a sensitive cord. The initial no campaign collected very quickly well over the number of signatures that were required to initiate the referendum. It has been supported by a somewhat heteroclite coalition composed of eurosceptics, e.g. Geert Wilders’ populist and anti-EU PVV, the socialist party and the Dutch animal right party. Moreover, this would not be the first time either that the Dutch would say no to an EU treaty. They already rejected the EU constitutional treaty in 2005, a few days after French voters had clearly expressed their opposition in a referendum. Similarly, the popularity of the No vote to the EU-Ukraine Association Agreement also reflects broader concerns about and criticisms of the state and direction of the EU, which have never been really satisfactorily addressed since then. The “Yes” campaign has also lacked a clear governmental and broader backing, especially as Mark Rutte, the Dutch Prime Minister, decided not to engage in the Yes campaign. Information of the public about the EU-Ukraine Association Agreement has remained quite weak, although earlier polls have suggested that support for the agreement very much relied on how much voters were informed about its actual content and implications. Certainly the possibility of a “nee” to the question “Are you for or against the law approving the treaty of association between the European Union and Ukraine?” is taken very seriously in Brussels. Jean-Claude Juncker, the president of the European President, recently warned against the major consequences that it would have for Europe. In all likelihood, a Dutch no vote could give momentum to Britain’s won June referendum on whether or not to stay in the Union and give further ammunition to Eurosceptics throughout the EU.

2. A No vote would certainly place both the EU and the Dutch government between a rock and a hard place. In essence, They would be force to either choose to disregard the vote of Dutch citizens and move ahead with the Association Agreement or take the Dutch opposition into consideration and halt the agreement’s implementation. Considering the EU’s past of dealings with negative referendum outcomes (e.g. Ireland’s no votes to the Nice and Lisbon Treaties, respectively in 2001 and 2007), the second option seems rather unlikely. The first option, though more probable, would however further discredit the democratic credentials of the EU, whose democratic deficit is already so often disparaged, and surely add grist to the mills of Eurosceptics in the Netherlands and abroad, especially as those have been at the forefront of the No campaign. At such a critical juncture of the EU’s recent history and in the face of the multifarious challenges that EU leaders are facing at the moment, from the massive influx of refugees, trans-border terrorist activities and their durable impact on the European open-border policy within the Schenghen area to the Brexit debate and the rise of populist, illiberal governments in Central and Eastern Europe, this would certainly add to the prevailing atmosphere of crisis. The Dutch government would also hardly emerge stronger and greater from ignoring a No vote by its citizens, although the referendum is consultative and therefore non-binding. The Dutch are strongly attached to the respect of democratic principles enshrined in law and the Dutch government might face strong contestation at home or even legal action. At the same time, should the No emerge victorious from the urns, the Netherlands, which is presently occupying the rotating presidency of the EU, could hardly opt-out the agreement. Eventually, a lot will depend on the voters’ turnout and what majority emerges on the eve of 6 April. A high turnout (well above 30%) and a clear majority against the agreement would make it almost impossible for the Dutch Prime Minister and Foreign minister to simply turn a blind eye on the referendum outcome.

Henri de Waele, Full Professor of International and European Law, Faculty of Law, Radboud University Nijmegen

1. Currently it looks like the ‘no’-side is in the lead, and it seems highly unlikely the tide will turn on short notice. I have been participating in multiple public (information) events so far, and what strikes me is the almost emotional response and deeply-held belief by the protestors that there is much wrong with the envisaged agreement, and that the referendum offers the opportunity to let political leaders know they have gone too far. In contrast, the ‘yes’-camp seems less visible, and less energetic. The chances are also high that many of those in favour cannot be persuaded to actually go out to vote, whereas those against show a greater willingness to actually show up at the ballot boxes. A related matter that strikes me is how a complete twisting of the facts by leading opinion makers, and wild exaggerations of the prospective negative effects of the agreement are readily accepted by the sceptics, who immediately label more neutral or positive information as biased and partisan. In that sense, it is a bit as if a ‘Donald Trump’-style of bragging rhetoric has caught on very well in The Netherlands – something that scares me personally, especially as a (more) educated citizen looking for nuance and objective truths, less inclined to fall for anti-EU conspiracy theories.

2.  As a lawyer, I have thought this through carefully; the legal conclusion is likely to be that the association agreement can still be adopted, but that a specific ‘opt-out’ will have to be drafted for The Netherlands. This is not too difficult to accomplish, since the bulk of the deal pertains to trade, a topic for which the EU (not the Member States) is exclusively competent anyway. In fact, if a ‘no’ is taken to Brussels by the Dutch government (and bear in mind that officially the referendum is only consultative, not binding), this should legally be taken to mean as a ‘no’ to the cooperation in the other fields (police cooperation, transport, energy, environment etc.), for which a special position will need to be carved out – with the other 27 Member States continuing to take part. After all, is also politically unthinkable that only a few thousands of Dutch voters will be able to decide on the future of the whole EU and Ukraine as well – and impossible to sell to the different partners involved. In theory, the Dutch government could still veto the entire deal, but that would so much be violating the international principle of good faith that it is more likely to ignore the referendum outcome altogether, or draw conclusions that allow for a more gentle way out.

Hylke DijkstraAssistant Professor, Department of Political Science, Maastricht University

1. Next week’s referendum on the EU-Ukraine Association Agreement is going to be a close outcome. For the referendum to be valid, at least 30% of voters needs to show up. Turnout in The Netherlands is typically high, but it remains a question whether this target will be reached. If so, I expect a large majority to vote against, despite the fact that all mainstream parties support the agreement. The average Dutch voter has little with Ukraine and, frankly, does not want to be associated with it. Voters also rightly see it as a step towards accession. Wrongly, they see it as a provocation towards Russia.

2. The problem with the agreement is that it is partially an EU competence and partially a national one. The bits of the agreement where member states have something to say are limited to the political objectives. Non-ratification of those bits will thus likely be messy and my up in the Court of Justice. Apart from the technicalities, it is clear that a vote by the people needs to be taken seriously and that the rest of the EU will somehow have to give in. I would, for example, expect that the EU adopts a separate declaration stating that this association agreement is completely unrelated from Ukraine’s membership perspective as a European country. Not everyone will like it, but it seems the best way forward.

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