According to the provisional results, the 30% threshold was reached (32,2%) and 61.1% voted against the association agreement with Ukraine. On the whole, 19% of the Dutch voters were against. Noteworthy is the share of the middle classes among the ‘no’ voters. The Dutch government and most political parties have stated that the association agreement cannot simply be ratified. As we find ourselves in legally uncharted waters, the step-by-step process described below can only be indicative.
Step 1: Interpretation of the referendum result and formulation of a strategy
The success of the ‘no’ voters has been overshadowed by the fact that 67.8% of the Dutch people did not vote. The Rutte government has the difficult task to interpret what a ‘no’ means with such a low turnout.First of all, it needs to identify why the majority voted against the agreement. Reasons seem to include: the association agreement is seen as a first step for Ukraine to join the EU, the fear that military cooperation may provide Ukraine with a security guarantee, the fear that the association agreement can put relations with Russia under pressure, and ‘now we can finally tell the EU that we don’t always want more and more’. Other concerns, such as mistrust of the Ukrainian government, of the Dutch government and of the EU, also contributed to the ‘no’. It is surprising that the mediocre quality of this association agreement hardly comes up in the comments on, and analyses of, the referendum. It is important that more attention should be paid to the agreement itself.
Reasons for not voting included: dislike of referenda, disinterest in Ukraine, dislike of this particular referendum, and ‘they won’t listen to us anyway’. The confusing voting threshold of 30% also played a part (giving ‘yes’ voters a ‘strategic’ interest not to vote in anticipation of a low turnout).
As stated by the spokesperson of Commission President Juncker and confirmed by Donald Tusk, President of the European Council, the interpretation of the referendum outcome and the decision on the subsequent course of action is first and foremost matter for the Netherlands. Prime Minister Mark Rutte has suggested a step-by-step approach. A first step will involve an understanding between Rutte’s liberal party (VVD), coalition partner (PvdA – the labour party), and Dutch parliament.
The matter is being complicated by the Dutch national elections (on 18 March 2017). Politically, Rutte cannot simply disregard the voice of criticasters. It is most likely that he will discuss the issue at the level of Heads of State or Government at the 23-24 June European Council. Subsequently the Commission will have to explore political and legal options. This may require time so that painful decisions can be postponed until after the end of the Dutch Presidency and after the Brexit referendum. This may possible even result in a strategy to wait with a final decision until after 18 March 2017.
In parallel, the European Commission has to determine what steps it wishes to take. On the one hand, Juncker may not want to provoke ‘no’ voters, also because similar criticism of this agreement and of the EU in general can be found in other countries. However, Juncker may not be keen to turn this ‘no’ vote into an EU problem. The EU has enough on its plate and procrastination for another year or two may do the reputation of the EU further harm. Juncker will have to take into account that the agreement is for 90% a trade agreement, that the Dutch only constitute 3.5% of the EU population and that only 19% of the Dutch voted ‘no’. Moreover, blocking this trade agreement may be problematic for the Brexit voters: the ‘leave’ camp is already unhappy with the difficulties and delays the EU faces when it comes to trade agreements (see TTIP). Hence, Juncker, as problem solver, could decide to go ahead with this association agreement, leaving it to the European Court of Justice to decide whether this Dutch ‘no’ vote is sufficient reason to block it, given that it is mostly about trade.
Step 2: Decision on smaller declaration or protocal, or relying on ‘indefinite’ application
As long as the Netherlands does not ratify the association agreement, it cannot fully enter into force. Since it is a mixed agreement – involving a combination of powers of the EU and of the member states - a double ratification process will be required before the agreement can enter into force.
Considering the advisory nature of the referendum, the Dutch government could still ignore its results and ratify the agreement – followed by a declaration stating that this AA is not about enlargement, etc. This would mean that the existing association agreement could enter into force. However, this is a politically unlikely option given the upcoming national elections. Another unlikely, short-term scenario is that the Dutch government will block the EU ratification of the agreement. This would also stretch democratic principles, seeing that 27 member states have ratified it, and it would be politically embarrassing for the Dutch EU Council Presidency.
Most likely is that the Dutch government will not ratify the existing agreement. Yet the question arises as to what will happen with the parts of the association agreement that are already being applied on a provisional basis (mostly falling under EU competence –but this needs to be further clarified by the Commission). Indefinitely relying on the provisional status of the association agreement is politically hardly feasible; someone may decide to take the matter to the European Court of Justice. Yet, the Council Decisions on the signing of the agreement do not specify an expiry date for its provisional application. The article in the association agreement on provisional application (Art. 486) states that either party may terminate the provisional application of the agreement. This would require a unanimous decision of the Council. Yet, there is an end to ‘temporarily’.
Step 3: (Legal) solutions to the Dutch ‘no’: a separation between trade and political paragraphs
Following identification of the main concerns of the Dutch voters about the association agreement, the reservations have to be translated into a legal solution. After the dialogue with all parties involved, the more difficult - but most discussed - scenario is to split the political from the economic section of the agreement. The Netherlands would then be party only to the trade agreement, and opt out from the political part. Leaving the ratification technicalities and institutional difficulties aside, it is questionable why the Netherlands would only enter into a ‘deep and comprehensive’ trade relationship without taking part in any political dialogue.
Furthermore, finding political support in other EU member states for completely separating the agreement’s economic and political part would be no easy task. During the negotiation process, some member states – including Poland, the Baltic states, Sweden and the United Kingdom – wanted to expand the political part by offering Ukraine a better prospect of EU membership. Hence, splitting the agreement is not only legally difficult, but also politically impracticable.
The advantage of a declaration is that not all member states have to approve it before the agreement can enter into force. Yet, under public international law, declaration-type instruments are not binding, which might be a problem in reassuring the Dutch voters (the veto in 2005 resulted in the Lisbon Treaty and hence annoyed ‘no’ voters: ‘they don’t listen to us’). Another option is to ask for an opt-out in the form of a protocol, which is legally binding. This, however, would require the approval of all member states before the agreement can become fully effective.
While adopting interpretative statements seems the easiest solution, it would still be difficult to determine what should be in the declaration or protocol. According to Wessel and Lazowski, it could include a statement that the Netherlands does not perceive this agreement as a tool for Ukrainian membership of the EU. In addition, it could indicate more clearly what provisions on cooperation in foreign and security policy would entail. And it may be also helpful to be more clear on the issue of the free movement of persons and workers in relation to visa-free travel.
It will probably depend on the results of the elections of 18 March 2017 whether a more restricted solution will be chosen (a declaration and footnotes to indicate where the Netherlands accepts opts out) or whether a more drastic solution is called for (e.g. a split between a trade agreement that the Commission can sign and a political agreement).
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