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Europa in de Grondwet: A reaffirmation of commitment

vrijdag 17 mei 2019, 14:55, analyse van mr. Sofie Wolf

Door Sofie Wolf en Hoai-Thu Nguyen, Montesquieu Instituut Maastricht

 

D66 heeft voorgesteld om het lidmaatschap van de EU te verankeren in de Grondwet. In dit artikel reflecteren Hoai-Thu Nguyen & Sofie Wolf op de voorgenomen grondwetswijziging en zetten dit in een internationaal constitutioneel perspectief.

The Dutch Constitution does not currently have a reference to the European Union; nothing in the Grondwet (GW) regulates Dutch membership in the EU beyond the general clause of article 92 GW stating that powers may be conferred upon international organizations by or pursuant to a treaty. Recently, Rob Jetten, leader of the Democrats 66, and Kees Verhoeven, member of the same political party, introduced a proposal in the Tweede Kamer to enshrine EU membership in the Dutch Constitution. This proposal for a constitutional amendment consists of three parts, namely: 1) enshrining Dutch EU membership in the Constitution; 2) providing for a specific procedure to follow in case the Netherlands decides to withdraw from the EU; and 3) enshrining parliamentary involvement in EU decision-making. The different parts of the proposal will be considered in turn below:

Enshrining EU membership in the Grondwet

Discussions on whether or not EU membership should be enshrined in the Constitution has been present in the Dutch discourse since the 1950s. More recently such discussions have been focused less on the ‘whether’ and more on the ‘how’s of including such a Europe clause. One option is to change the wording of article 90 GW – which currently reads: “The Government shall promote the development of the international legal order” – to also include a reference to the EU by stating: “The Government shall promote the development of the international and European legal order”. The other option, as suggested by Jetten and Verhoeven, is to introduce a new, separate clause specifically providing for Dutch membership in the EU. Both alternatives are viable options in light of the objective of the proposal itself, namely to constitutionalize the Netherlands’ membership in the EU.

The EU itself does not impose any obligations on its Member States in this regard. In fact, a look through different constitutions in the European Union shows that there is no common practice amongst the 28 (soon 27) Member States when it comes to constitutionally enshrining EU membership itself. For example, neither Luxembourg nor Denmark have included any kind of reference to EU membership in their respective constitutions. Article 49bis of the Luxembourgish Constitution, similar to the Dutch Constitution, only refers to the transfer of the exercise of powers to institutions of international law. Also Italy, while having included references to the EU in other provisions relating to constraints on legislative powers through EU membership, does not explicitly mention such membership in the Constitution. Thus, article 11 of the Italian Constitution only talks about promoting and encouraging international organizations which have as their objective the ensuring of peace and justice among nations.

The French Constitution, in turn, has included a specific provision on EU membership as has the German Basic Law. In 1992 – the year of the Maastricht Treaty – article 88-1 was inserted into the French Constitution, which states that “The Republic shall participate in the European Union constituted by States which have freely chosen to exercise some of their powers in common [...].” In the same year, article 23(1) was added into German Basic Law, which reads: “[…] the Federal Republic of Germany shall participate in the development of the European Union that is committed to democratic, social and federal principles, to the rule of law and to the principle of subsidiarity and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law. To this end the Federation may transfer sovereign powers […].” What is interesting to note here is that the German Basic Law not only lays down Germany’s membership in the EU, but that it in fact makes the latter conditional upon the EU’s commitment to certain principles and fundamental rights protection.

These examples show that there are very different approaches to the inclusion of a Europe clause in the constitution of the different Member States. Some Member States, like the Netherlands thus far, have chosen not to specifically refer to the EU but to consider EU membership to be covered by broader clauses relating to the transfer of powers to international organizations in general. Other Member States have – sometimes only years after having joined the EU – included specific enabling clauses for EU membership, with some Member States such as Germany even including certain conditions for membership in their Europe clause. The proposal of Jetten and Verhoeven would hence not be out of the ordinary compared to the constitutional frameworks of other EU Member States. But at the same time it would constitute a clear re-affirmation of the Netherlands’ commitment to the EU, which would be a positive sign in light of the rising of Euroskeptic parties throughout the Union.

Procedure for leaving the European Union

In light of the chaos that has surrounded the ongoing Brexit process, Jetten and Verhoeven argue for the necessity of a clear exiting procedure on national level should the Netherlands ever decide to withdraw from the EU. In their proposal they suggest to follow the constitutional amendment procedure as set out in article 137 GW, which requires a proposal to amend the Constitution to be adopted in two readings by the States-General, with a general election in between both readings and a two-thirds majority in both chambers in second reading. The aim of this proposal is to prevent rash decisions in parliament and also to put the question of a ‘Nexit’ to a democratic vote by the people before second reading in parliament. The requirement of both general elections and a two-thirds majority in both chambers would ensure that the decision to leave the EU is well considered in parliament before article 50 TEU is triggered.

Again, the EU itself does not require a specific procedure to be followed at national level when leaving the European Union as long as the former is in line with national constitutional requirements. Thus, article 50 TEU states that: Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” Considering that leaving the EU has a huge impact on the lives of the citizens and can be a very controversial act both in terms of whether to leave and how to leave – as was evidenced in the United Kingdom – the proposal made by Jetten and Verhoeven makes sense. It ensures not only that the decision to trigger article 50 TEU is not taken hastily by requiring two readings and a general election in between, but also that there is a broad consensus for such a step amongst both the people and their representatives in parliament.

Parliamentary involvement in EU affairs

In the third part of their proposal, Jetten and Verhoeven suggest to include a sentence regarding parliamentary involvement in EU affairs in the Grondwet. More specifically, they propose to insert a sentence in the Constitution stating: “Statute regulates the participation of the States-General in decision-making of the European Union with regards to legislation and Treaties.” Such statute could, for example, take the form of the already introduced ‘Europawet’, which in essence is a compilation of the powers given to both the Tweede Kamer and Eerste Kamer to participate in EU affairs. This is the option preferred by Jetten and Verhoeven. Another possibility to enhance parliamentary involvement in EU matters would be the broadening of the scope of article 91(3) GW, which currently requires a two-thirds majority of votes in both chambers to approve a treaty – but only where the provisions of such a treaty is in conflict with the Constitution. The broadening of this article, as it was introduced in the Tweede Kamer by a member of the SGP in 2006, would ensure that all EU Treaty amendments must be approved with two-thirds majority in both chambers, as opposed to only such EU Treaty amendments that would be in conflict with the Dutch Constitution. This proposal was, however, rejected in the Eerste Kamer on the grounds that such a super-majority requirement would in practice preclude any future EU Treaty amendments from being adopted in the Netherlands.

The proposal by Jetten and Verhoeven to not only enshrine EU membership but also parliamentary involvement in EU affairs in the Dutch Constitution follows a trend that can also be observed in other Member States. The German Basic Law, for example, provides in article 23(2) GG that “ The Bundestag and, through the Bundesrat, the Länder shall participate in matters concerning the European Union […]”. The same article then goes on to provide, amongst others, for a right of parliament to information in EU matters but also an obligation on the Federal government to take into account the Bundestag’s position in negotiations at EU level. Further details are regulated by statutes. In Austria similar participation rights of parliament in EU affairs are enshrined in article 23e of the Austrian Constitution. In France, articles 88-4 to 88-7 of the French Constitution regulate various means of participation in EU matters by the National Assembly and the Senate. In Chapter 10 article 10 of the Swedish Constitution the right of parliament to be informed and consulted in EU matters is constitutionally enshrined, with further details again laid down in a statutory act. Another example is Hungary, were article 19 of the Constitution also gives parliament a right to information vis-à-vis the Hungarian government in EU affairs and obliges the latter to take into account the position of parliament in the EU’s decision-making processes.

While at first glance including an obligation in the constitution to involve national parliaments in the EU decision-making process seems to be contrary to a doctrine of allowing (almost) unconditional inflow of EU law and efficient transfer of powers to EU (as arguably is the doctrine present in the Dutch legal system), it in fact can also provide more legitimation to the Netherland’s membership in the EU and to the decisions taken at EU level. Most importantly, however, enshrining the right to participate in EU matters of the Dutch parliament in the Constitution protects the prerogatives of parliament vis-à-vis itself and vis-à-vis the government. On the one hand, it would make it more difficult for the Dutch government to circumvent parliament when taking part in EU decision-making. At the same time, constitutionally enshrining an obligation for parliament to participate in EU affairs would also make it harder for the States-General to shirk their responsibilities when it comes to EU matters by lending it more weight than if such obligation was merely laid down in statutory law.

In conclusion, the proposal to enshrine Dutch EU membership and parliamentary involvement in EU matters in the Grondwet, as introduced by Jetten and Verhoeven, should be seen as a positive initiative. As long as the Netherlands remains and wants to remain a Member State of the European Union, this proposal factually changes very little, except for constituting a clear re-affirmation of the Netherlands’ commitment to the EU. But it would make it harder for Euroskeptic movements to set a withdrawal process in motion without a clear and broad support for a ‘Nexit’ in parliament and amongst citizens – and it would prevent the Netherlands from descending into the same political chaos as the United Kingdom in its Brexit process.

Sofie Wolf en Hoai-Thu Nguyen zijn actief voor het Montesquieu Instituut in Maastricht.


[1] Note that the very general phrase of “European legal order” is not only a reference to the EU but also the Council of Europe and the European Convention on Human Rights.

[2] Kamerstukken II, 2016-2017, 34 695, nr. 2.

[3] Kamerstukken II, 2006-2007, 30 874 (R 1818), nr. 2.

[4] See for the distinction between an ‘efficacy’ and a ‘legitimation’ strategy in Europe clauses: P. Popelier, ‘”Europe Clauses” and Constitutional Strategies in the Face of Multi-Level Governance, 21 MJ 2 (2014), pp. 300-319.

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