The newly formed Dutch Government, that was already gaining spotlight earlier in May 2024 for a coalition agreement planning to considerably restrict national migration law, recently announced the intention to ask for an opt-out from EU migration laws. The Government, led by Dick Schoof, justified the move with the increase in the number of asylum seekers applying for international protection. The European Commission prepared a summary, in English, of the main measures that the Dutch Government would like to introduce.
This move was translated into political intention when on 18 September 2024 the Dutch Minister of Asylum and Migration, Faber-Van de Klashorst, sent a letter to the outgoing Commissioner on Internal Affairs, Ylva Johansson, stating the intention of the national Government to ask for an opt-out from migration law rules “in case of Treaty amendment”.
This move, however, seems hard to be accomplished.
As the Dutch Government recognized in a note annexed to the letter, the only way to ask for an opt-out from EU law rules is to request a Treaty amendment, a procedure that would require, according to Art. 48(2) ff. TEU, the opening of an international convention and unanimity among the EU Member States.
It is disputable if an amendment of that sort can be achieved through Art. 48(6) ff. TEU, via the simplified Treaty revision procedure, that can be used only “for revising all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union relating to the internal policies and action of the Union”. In principle, EU asylum and migration rules fall within the scope of this Article, but the amendment requested by the Dutch Government is not about changing the literal or legal meaning of the provisions of Part Three of the TFEU, but rather on completely opting out from them.
The second comma of Article 48(6) TEU does not require the opening of an international convention, but still requires the European Council to adopt a decision on the amendment with unanimity. This Article has been used only once, in 2011, to allow for inclusion of new Art. 136(3) TFEU, which provides the legal basis for the European Stability Mechanism (and which was never used).
Moreover, it is also disputable if a Treaty amendment (through the ordinary or simplified procedure) can be used at all to reduce the degree of integration among the Members of the block. Even if the Dutch Government will succeed in obtaining this amendment, this will likely require a potentially long legal battle with the European Commission that can end up in front of the Court of Justice of the EU. The Netherlands are also Members of other international conventions, like the European Convention of Human Rights, where a tightening of migration rules can be considered as a violation of the fundamental rights of the persons involved.
At the same time, such a move can represent a precedent for similar attempts by other EU Member States that might be interested into amending EU rules to lower the standard of integration.
The European Commission, however, has repeatedly stated that all the EU Member States are bound by the existing EU rules and that it is not possible to renegotiate them after they have entered into force. The Dutch Government itself recognised to be bound by existing EU laws, stating in the letter to Commissioner Johansson that until the opt-out will be granted, they will continue to work on the “swift” implementation of the New Pact on Asylum and Migration.
Giovanni Zaccaroni is assistant professor of EU law at School of Law of the University of Milan-Bicocca. The opinions expressed in this blog represent the position of the author and not the one of the FAMIMOVE team.
Image credit: A view of the Binnenhof with the Torentje [seat of the office of the Dutch Prime Minister] on the left by Christopher A. Dominic, Binnenhof, CC BY-SA 2.0
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