Poland uses referendum as leverage in EU migration negotiations
Not only in the Netherlands, but also in the rest of Europe, asylum and migration causes considerable friction. The Dutch government, helmed by one of the longest-serving Prime Ministers of Europe, Mark Rutte, fell as ministers clashed over asylum. In Poland, Prime Minister Mateusz Morawiecki has announced to hold a referendum on relocating asylum seekers within the EU, to be held on the same day as Poland's parliamentary elections next autumn. By doing so, Morawiecki wants to achieve two things: winning the elections based on anti-migration and anti-EU sentiments, and putting pressure on European migration negotiations. Waving a won referendum, the Polish government will surely try to bail out of implementing European agreements. This leaves member states with two options: going back to the drawing board for a migration deal supported by all or agreeing on effective instruments to force countries to implement it.
In early June, European Justice and Home Affairs ministers agreed on two key proposals in the EU Asylum and Migration Pact. The first covers an asylum procedure at the EU's external border to quickly distinguish between those with low and those with high potential asylum claims. The second is a solidarity mechanism requiring countries to take in asylum seekers from countries where the majority enters the EU, with the possibility of a financial contribution if a member state does not want to take in asylum seekers).
The latter proposal faced opposition from Poland and Hungary. Consequently, both countries voted against; Bulgaria, Lithuania, Malta and Slovakia abstained. Since the Lisbon Treaty, unanimity is no longer required on asylum policy. Hence, a qualified majority in the Council was sufficient to adopt a position. If the European Parliament follows this direction and the Council and European Parliament come to a joint decision, the member states that voted against will also have to abide by the new rules. Poland now announces a referendum and - if the government wins the referendum - will use the result to put pressure on the EU.
All bets are on
These are notorious referendum tactics. By linking this referendum to the general elections and highlighting migration, a hot topic in the public debate, gives the government an easy chance to 'score'. The ruling party even bets on a double win: winning the referendum and winning the general elections. This will considerably strengthen its legitimacy for the coming term. Linking the hot topic to the elections also contributes to a high turnout - which in many countries, including Poland, is obligatory for a referendum to be valid.
It is not the first time a referendum has been used to influence European asylum and migration policy. In 2016, Hungary held a referendum on the mandatory distribution of refugees, which was decided upon by qualified majority voting in the Council, for the first time on this issue. However, as the turnout threshold was not met, the referendum was declared invalid. There are numerous other examples of EU-related referendums that were used in EU negotiations, with varying degrees of success for the initiators. Sweden's referendum on the euro in 2003 worked out well: the Swedish no-vote legitimized the decision of the then government to not introduce the euro, although they were formally obliged to do so.
However, things can also go wrong. For example, the then British Prime Minister David Cameron used the prospect of the referendum on Britain's EU membership in 2016 as a tool to negotiate new membership terms for his country, counting on a remain vote. A fatal error of judgement, as it turned out.
Will Poland throw the dice?
Whether the referendum contributes to an electoral victory for Poland's incumbent ruling party remains to be seen. Anti-migration and anti-EU sentiments generally do well in Poland. Recent polls show that around three quarters of the Polish population oppose the European relocation plan. At the same time, the prospective referendum is encountering resistance among supporters of the opposition parties. What will they vote on referendum day?
The impact on the European migration negotiations depends on the referendum result and, just as important, the turnout. In Poland, the result of a referendum is binding if more than half of those entitled to vote participated in it. Since the referendum will be held at the same time as the elections, the turnout threshold is very likely to be met.
Even with a valid and binding no-vote, Poland is bound by European agreements. The new Polish government would then find itself in a dilemma of having to abide by the EU agreements on the one hand, while at the same time complying with the referendum result. The Polish government will do everything in its power to use the referendum to force more favourable terms in the upcoming negotiations or to bail out of the agreements.
Consensus or force majeure?
A binding no-vote also presents the EU member states with a strategic dilemma: will they go back to the drawing board for agreements that do have the support of all member states, or will they force Poland and Hungary to implement the agreements through effective instruments, for example by linking European funds to progress in implementation. The crucial lesson learned is that when governments are outvoted in the EU on electorally sensitive topics such as migration, there is always a risk that national governments will not implement new European rules and will hit back with a referendum to legitimize this.
Saskia Hollander is Senior Researcher at the Clingendael Institute and author of the book The Politics of Referendum Use in European Democracies (Palgrave, 2019).