FALCON POWERS – The Hague might soon be heading for a total clash with Brussels over the most explosive issue on the political agenda: migration.
The Netherlands has a new government and, with it, new ideas.
Dick Schoof, a 67-year-old independent, has taken over as prime minister, backed by a coalition of four parties: the far-right, nationalist PVV; the conservative-liberal VVD; the populist, pro-farmers BBB; and the upstart, centre-right NSC.
Due to the PVV’s dominant weight in the unexpected alliance, their joint programme comes with a strong focus on migration, a hot-button issue that caused the collapse of the previous government and dominated last year’s electoral cycle.
The agreement spells out an exhaustive string of proposals to reduce migratory flows, which, the parties say, “put pressure” on housing, healthcare, education, financial resources and social cohesion. The initiatives include stricter admission procedures, reversal of the burden of proof to decrease the number of positive decisions, deportation, “even forcibly”, of people without valid residence permits, and immediate return of irregular migrants apprehended at the Belgian and German borders.
Then, on one crucial point, the programme reads: “An opt-out clause from the European asylum and migration policy will be submitted to the European Commission as soon as possible.”
The ambitious request, which is yet to be formally presented, quickly caught the attention of Brussels, as it emerged the same week that member states gave the final approval to the New Pact on Migration and Asylum, an all-encompassing overhaul that envisions collective, predictable rules to manage the arrival of asylum seekers.
The reform took almost four years to negotiate and concluded an energy-draining political undertaking that stretched back to the 2015-2016 migration crisis. The news that the Netherlands, a founding member of the union and a prosperous economy, wanted to pull out of past and future laws was met with dismay – and deep scepticism.
After all, opt-out clauses in the EU are a rarity that can be counted on one hand.
Denmark has two: from the eurozone and from the Area of Freedom, Security and Justice (AFSJ). Ireland also has two: from the AFSJ and from the Schengen Area, due to its common border with the UK. Meanwhile, Poland has one: from the Charter of Fundamental Rights, which only involves its practical application.
The Hague is now vying for the sixth.
In and out
At its core, the EU is a system of common rules that must be applied uniformly to be effective and, in case of conflict, prevail over national norms. Otherwise, the single market would fall apart and turn into an impossible maze of arbitrary standards.
This is why opt-out clauses are extraordinary: their existence defies the bloc’s underlying logic and creates a permanent loophole in the shared body of laws. They are intrinsically political because they address a highly sensitive interest – or intense grievance – raised by a country, which, if left unaddressed, would prevent a larger political goal.
Denmark first requested opt-outs from the eurozone, home affairs and the Common Security and Defence Policy after the 1992 Maastricht Treaty was rejected by Danish voters. (The defence clause was abolished after Russia launched the war in Ukraine.)
The opt-out was extended when the 1997 Treaty of Amsterdam proposed to empower the EU institutions to legislate in the areas covered by the ASFJ, such as migration, justice, security and fundamental rights. Until then, the ASFJ had been firmly in the hands of governments, without the European Commission’s involvement.
Ireland demanded the same treatment and both nations secured a protocol to exempt them from any decisions adopted under the ASFJ. The protocols were added to the Treaty of Amsterdam and remain in force today. The Irish clause, though, is flexible and allows Dublin to opt in and out of migration rules on a case-by-case basis.
Poland later followed the example. In the lead-up to the 2007 Treaty of Lisbon, which gave the Charter of Fundamental Rights full legal effect, the country asked for an opt-out from its judicial application, fearing the Charter’s liberal character would clash with conservative family values. A protocol was then drafted to limit its implementation in Poland. (The actual scope of such clause has been contested since then.)
Could the Netherlands secure a similar arrangement on migration and asylum?
For Elise Muir, head of the Institute for European Law at KU Leuven, “the answer is simple: a member state cannot opt out from EU legislation after it has been adopted. The point of EU membership is that one commits to abiding by its laws.”
The existing opt-outs, Muir noted, were carved out at a time of the accession of new countries or when treaties were being revised, “but this is unlikely to happen at the moment and requires unanimous approval of all states.”
Alternatively, she added, an opt-out might be suggested while a draft law is under negotiations. However, the New Pact is settled and there is no appetite to reopen the long-awaited overhaul.
