Ton van den Brink , Utrecht University
BRIDGE Network Country Report
- Crisis Impact and Response
I will focus in this section on Dutch responses to the Rule of law crisis and Brexit, as the country distinguishes itself most in regard of these two crises.
- Rule of law
The Dutch government – and indeed also the parliament which appointed special rule of law rapporteurs in 2018 – views the rule of law crisis as a concern for the Netherlands as well. in other words, this should not merely be an issue for EU institutions to address, but creates responsibilities for Dutch institutions as well. Concrete actions would include: supporting NGOs in the MS at issue; intervene in infringement procedures and other CJEU cases dealing with rule of law issues; full support for the EU rule of law dialogue; connect rule of law compliance to receiving EU funding: stimulate exchange between judges, lawyers, public authorities, NGOs and the media.
Another noteworthy observation regards the actions of the Amsterdam district Court, which has exclusive jurisdiction to decide on incoming European Arrest Warrants (EAW). This court has been particularly active in requesting the CJEU for preliminary rulings on various rule of law aspects of the EAW, mostly in relation to incoming EAWs from Poland. Most recently, the court requested the CJEU to decide whether the current Polish nomination and appointment procedures for judges are compatible with the requirement of an impartial and independent trial from article 47 of the Charter of Fundamental Rights. Thus, the decay of the Rule of law in Poland (and in other Member States) may impact horizontal cooperation mechanisms based on mutual trust, which may be an impetus for such countries to at least limit further decay.
The Netherlands is one of the Member States that are most severely impacted by Brexit (probably second after Ireland). This is especially the result of intensive trade relations. It is also a transit country for trade with the rest of the EU. Thus, Brexit required the strengthening of the Customs authorities as well as authorities such as the Foods Safety Agency. Apart from trade, also fisheries and (financial) services have been key issues for the Dutch government. Quite early on in the Brexit process, the government set up a Brexit task force that had as an important task to identify the possible effects of Brexit. Preparing business for the formalities as well as British citizens living in the Netherlands and vice versa has been an important function of the task force.
- Differentiated Governance
- Policy differentiation: enhanced cooperation
The Netherlands has not been part of the founding member states of the European Public Prosecutors Office (EPPO). It joined later, on 1 August 2018. Both chambers of parliament had sent reasoned opinions on the proposal in the framework of the Early Warning Mechanism. The government wanted to join but the Tweede Kamer blocked that step. Concerns about national sovereignty over criminal matters were the main source of opposition to the proposal. Only when the political parties that would form a new government agreed to join the EPPO did Netherlands became part of the system. The Netherlands is not part of the Regulation on divorce and legal separation. At the time, it was viewed that the more liberal Dutch legislation on divorce would be too divergent from other Member States’ legislation. Equally, the Netherlands has not supported the creation of a Financial Transaction Tax (FTT). By contrast, the Netherlands did join the regulation on the creation of unitary patent protection, the regulation on the recognition and enforcement of decisions on matrimonial property regimes and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships.
- Intra-EU Differentiation: The Frugal Four and the Benelux
In the run-up to the adoption of the corona recovery fund, the Dutch government had to act as the leader of the “Frugal Four” group (along with Austria, Denmark and Sweden) after Germany took a more accommodating position on the plan. The Dutch parliament largely sided with the government on the need to constrain the corona recovery fund. A majority, however, did not oppose the fund altogether. Rather, issues of financing (mutualization of debts), expenditure (loans instead of grants) and governance (strict oversight on the implementation of the recovery plans) were among the contested issues.
The ad hoc coalition of the F4 reveals that the interests and the political positions of the three Benelux countries (Belgium, Luxembourg, and the Netherlands) do not necessarily align. Benelux benefits, however, from a long-standing and well-institutionalized mechanism of cooperation. Evaluation of this cooperation has revealed that the following advantages of Benelux may be identified:
- Reduction of administrative burdens for business and citizens (digital consignment)
- Enhancement of knowledge among public authorities (e.g. exchange of best practices)
- Economies of scale (in energy cooperation)
- Network function
- Cooperation in enforcement
- Testing ground for new initiatives that may later be picked up by the EU
- Territorial Differentiation. The EU complexities of a Kingdom
The Kingdom of the Netherlands consists of a European part and six islands in the Caribbean. Until 2010, these islands formed two countries within the Kingdom: Aruba and the Netherlands Antilles (Curaçao, Bonaire, Sint Maarten [Dutch part], Saba and St. Eustatius). The relations between these two countries and the third – the European part of the Kingdom – were governed by the Statute of the Kingdom (which has primacy over the constitutions of the three constituent countries). In 2010, Curaçaoand Sint-Maarten became countries under the Statute in their own right alongside Aruba (which had acquired that status already in 1986). By contrast, the smaller islands of Bonaire, St. Eustatius and Saba (the so-called BES-islands) have been incorporated as public law entities (“openbare lichamen” – a status similar to that municipalities) into the European part of the Kingdom. Residents from the latter islands have now acquired voting rights for the Tweede and Eerste Kamer as well as for the European Parliament. This creates the interesting insider/outsider problem that while these islands are not part of the EU, its inhabitants are viewed as insiders and are fully represented in the EU’s legislative process (including through the Early Warning Mechanism). Dutch nationals from the other islands (Aruba, Curacao and St. Maarten) are not represented in the two chambers of the Dutch parliament. They may equally vote for the European elections however. In Eman and Sevinger (case C-300/04) the CJEU had ruled that the principle of equal treatment should be observed when excluding from elections nationals that do not reside in the national territory. Following this decision, the Electoral law (Kieswet) was amended to extend the scope of electoral rights to all Dutch nationals residing on the Caribbean islands.
Today, the Statute of the Kingdom of the Netherlands thus covers four countries. The three Caribbean countries are not part of the EU’s territory but instead have the status of EU Overseas Territories (Annex II TFEU). They have access to EU funding: Curacao has for instance benefited from +11 million euro EU investment in the period 2013-2021. EU law generally, however, does not apply on the islands. The Netherlands Nationality Act (applicable to all four countries of the Kingdom) establishes a single Dutch nationality. As Dutch nationals, inhabitants of the Caribbean islands equally enjoy the status of EU citizens.
The situation for the BES-islands is a bit more complicated. These islands are not part of the EU territory either (even though they are part of European Netherlands). Important legislation such as the General Data Protection Regulation (GDPR) does not apply. After the Dutch Antilles were dissolved as a country within the Kingdom, its currency, the Netherlands Antillean guilder, was not replaced by the euro. In terms of tourism and trade, the islands are heavily dependent on countries using the US dollar or a USD-linked currency. Thus, they preferred to adopt the US dollar instead which has become the legal currency from 2011 on. The BES-islands being an integral part of the European part of the Netherlands, which is in its turn an integral part of the EU, one might expect quite some EU legislation to be applicable on these islands. In practice, not so much. This is the result of what could be called the divergency clause in the Statute. This provision (article 1.1. Statute) allows for specific measures to be adopted for the islands in view of ‘their specific economic and social conditions, their big distance to the European part of the Kingdom, their insular nature, their small size and population, geographical conditions, climate and other conditions on the basis of which they distinguish fundamentally from the European part’. Based on this provision, legislation has been adopted that only applies to the three islands, e.g. in the field of environmental law. Thus, large parts of national environmental legislation, largely the result of EU law obligations, are not applicable on the BES-islands. Still, various elements of EU legislation have trickled down in legislation applicable on the islands. The obligation to carry out environmental impact assessments in case of new projects is a good example.
Especially in the decade since the dismantling of the Netherlands Antilles, there has been quite some discussion on whether to change from the OCT to the OR (Outer Region) status. The latter implies a much closer relation to the EU. Especially on Aruba a great interest for the OR has been noticeable. The discussion got wings after hurricane Irma hit the island of St. Martin/Maarten, when the northern (French) part (with the OR-status) was able to benefit from the EU Solidarity Fund whereas the southern Dutch part (OCT) could not. On the other hand, the decision to change the status of the island of St. Barth’s from OR into OCT in view of the difficulties in complying with all EU law has also been closely watched in the Dutch parts of the Caribbean. The evaluation committee that was charged with evaluating the effects of the constitutional reform – most notably for the BES-islands – saw various obstacles as well, most notably that a decision to this end should be dependent on whether the BES-islands would be further integrated into the legal order of the European part of the Kingdom.
- Covid-19 and the Recovery Fund
At the time of writing this report, the Dutch government has still not submitted a corona recovery plan. All other Member States had done so already in Spring 2021. The formal reason is that it would be for the new government to draft the plan. Since the elections in March 2021, the negotiations on the formation of a new cabinet are still ongoing, so the eventual plan is not expected to be submitted soon. In any case, drawing from the corona fund in the form of loans will not be attractive for any Dutch government as the conditions for borrowing are favourable anyway. Nevertheless, there may another factor at play as well. The Dutch government has insisted (partly in the framework of the Frugal Four setting – see above) that the release of funding should be made dependent on the implementation of structural reforms in the Member States. This has now indeed been embedded in the RFF regulation and may provide for a much more powerful enforcement mechanism than the existing ones under the European Semester. The Dutch economy has its flaws as well though. The Commission has been pointing for years at the tax deduction system to stimulate house ownership. It has resulted in a ‘housing bubble’ and in a worryingly high level of private debts. Also the substantial and persistent Dutch trade surplus has been qualified as a macro-economic imbalance. Moreover, the Dutch tax system and the way it facilitates tax avoidance has been a source of criticism. Bolder actions from the Dutch government to address these issues may well be demanded in return for receiving subsidies from the corona recovery fund. In this way, the governance of the corona recovery fund may actually lead to a reduction of undesired policy variation among the Member States.
- Conference on the Future of Europe
The conference on the future of Europe has attracted very limited political and media attention thus far. The government announced in April it would set up citizen consultations and request the Social and Cultural Planning Bureau (SCP) to gather more data on Dutch citizens’ views on the future of the EU. The European committee in the Tweede Kamer held a meeting on the conference that led to the adoption of three motions: one to do justice to the great variety in views on the future of Europe, one to not exclude beforehand the possibility of Treaty change and one calling on the government to more actively involve citizens and border regions. Especially the last motion reflected a certain discontent with the government’s rather passive approach on the Conference. This discontent was voiced in a more urgent manner by the Eerste Kamer in a motion to call upon the government to organize public discussions, preceding the official consultations, to identify the Union’s state of affairs and the ambitions of the Netherlands in this regard. The Eerste Kamer sent a reminder in July 2021. In September 2021 the government informed parliament that the concrete national activities in the context of the Conference would consist of eight online thematic dialogues, eight group conversations on location (aimed at groups which are more difficult to reach) and six dialogues with young people. Together with a number of other Member States and representatives of the EU institutions, the Dutch government signed the so-called “Transparency Pledge” (together with Denmark it had been one of the initiators thereof), aimed increasing transparency in EU decision-making and making it a horizontal theme for the Conference.
 Government response to the Report- De Graaf on the Rule of law in the EU, 2 juli 2019, https://www.rijksoverheid.nl/documenten/kamerstukken/2019/07/02/kabinetsreactie-op-rapport-van-der-graaf-inzake-rechtsstatelijkheid-in-de-europese-unie.
 Amsterdam District court 14 September 2021, ECLI:NL:RBAMS:2021:5051.
 Memo Oprichting Task Force Brexit Minbuza 2016 445951 22 juli 2016.
 S. Kluft, A. Nunes, P. Wilms, Evaluatie Benelux Unie Samenwerking 2013-2019, https://www.eerstekamer.nl/bijlage/20200709/evaluatie_van_de_benelux_unie_3/document3/f=/vla7f3oqswss.pdf.
 For inhabitants of Curacao, Aruba and Sint-Maarten only Dutch citizens that have lived at least for 10 years in the Netherlands may register to vote for the EP. For these purposes, they are considered Dutch citizens living outside the Netherlands.
 https://www.cn.dnb.nl/en/payment_services/reasons_for_changing_to_the_us_dollar, last consulted: 20 September 2021.
 Chapter 7 of the Act on Housing, Spatial Planning and the Environment.
 G.D. Rekwest, De Unierechtelijke status van de Caribische Koninkrijksdelen, Caribisch Juristenblad 2019 (8) 4, p. 270.
 G.D. Rekwest, De Unierechtelijke status van de Caribische Koninkrijksdelen,
 Committee Spies, Vijf Jaar verbonden. Bonaire, Sint Eustatius, Saba en Europees Nederland
 Letter to the Tweede Kamer of 27 november 2020, https://www.rijksoverheid.nl/documenten/kamerstukken/2020/11/27/kamerbrief-over-nederlands-herstelplan-voor-de-recovery-and-resilience-facility.
 Letter to the Tweede Kamer of 21 April 2021on the involvement of citizens during the Conference on the Future of Europe, https://www.rijksoverheid.nl/documenten/kamerstukken/2021/04/21/kamerbrief-inzake-nationale-burgerbetrokkenheid-gedurende-de-conferentie-over-de-toekomst-van-europa.
 Eerste Kamer, Letter of 16 July 2021 https://www.eerstekamer.nl/eu/behandeling/20210716/brief_aan_de_minister_van_buza.
 Report of a written consultation on, inter alia, the annotated agenda for the General Affairs Council of 21 September 2021 (Parliamentary Paper 21501-02-2403).