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Tuesday, August 25, 2015

An EU referendum in the Netherlands during its EU presidency?

BREAKING: UPDATE 27 September. Geenstijl reports over 450 000 registered referendum requests. If that's correct, then a referendum seems very likely. The final word however is with the Election Council (Kiesraad), which will do the official counting, remove fake, incorrect and duplicate requests, and determine the number of valid requests. 

UPDATE 23 September: with about 4 days to go Geenstijl reports 255 000 out of 300 000 referendum requests have been received; which still means -if the data are correct- it will a close call whether NL will organise a referendum on the Association Agreement...

UPDATE 8 September: About halfway in the 6 week period available to obtain the necessary 300 000 signatures, 140 000 (47%) have been obtained. It seems to becoming a close call, whether a referendum will need to be called. 

The UK will have its in-or-out referendum in 2016 and Denmark organizes in December an opt-out to opt-in referendum: changing their default opt out in civil and justice matters to an opt in. In this way they can, like the UK and Ireland, decide regulation by regulation whether to participate or not. 

Also for the Netherlands an EU-related referendum might be in the works. IF it happens, its timing will be interesting: in the first quarter of 2016 and during the Dutch EU presidency.

A possible Dutch EU referendum is however not an in-or-out referendum, but addresses a less immediate topic: the association agreement the EU (and its 28 member states) concluded with Ukraine last year. Approval of the Agreement is running smoothly, with ratification of Ukraine, 22 EU states as well as the European parliament already fully finished. The Netherlands have finished their parliamentary process resulting in publication of the approval act on 28 July 2015. If it had been approved 1 month earlier, that would be the formal end of the democratic process and the Netherlands could proceed to deposit its instrument of ratification with the Council of the European Union. But on 1 July quietly the "Wet raadgevend referendum" (WRR, "Consultational" Referendum Act; translation as "Advisory Referendum Act" is also possible, but note it only advises after an act has been signed into law) came into force, giving groups of people the possibility to call a referendum.

Ukraine Association agreement

The request for a referendum is a two-stage process: first 10 000 signatures for a "preliminary request" have to submitted to the Dutch Election Council (Kiesraad) within 4 of the publication. After that stage is succesful, 300 000 applications for a referendum have to be raised within 6 weeks.

The first act to pass the preliminary stage was the Ukraine-EU Association Agreement approval act, after a campaign by website (via and This means the approval act is now suspended until the Kiesraad has announced wether sufficient applications for the referendum have been raised. The deadline for submission of applications is 28 September.

An EU referendum or a Association referendum?

While the referendum formally "just" is about the Association Agreement, the referendum-groups argue that it presents the only way for the Dutch people to have their say on the EU as a whole, so they are prepared to present a possible referendum in that context. The Association agreement is further placed in the EU enlargement context: the Association Agreement provides the first stage in alignment with the EU acquis, which has historically often ended in full membership of the EU. Ukraine-specific arguments are also provided and are linked foreign policy effects of the agreement has had in relationship to Russia.

Chances for success?

Will the call for a referendum be successful? That is hard to say at this moment. While website geenstijl drives a lot of traffic, discussion in newspapers and main Dutch television has been piecemeal. The bar of 300 000 requests amounts to over 2% of eligible voters and the requirement to submit request on paper provides a further burden. however seems to have found a loophole in the "in writing" requirement and has produced a browser-fillable form (including a signature system) that produces pdf files it can print and hand deliver to the Kiesraad. The form has been submitted about 30 000 times in the first 1.5 days, but was not able to double that amount in the 4 days that followed.

And IF a referendum is held?

Then the WRR requires it to take place in 3-6 months after the announcement has become final. I am not sure when that is, but -unless legal actions are started against the decision- it must be in the first half year of 2016, awkwardly coinciding with the Dutch presidency. Until such a referendum, the approval act is suspended and the Netherlands can not ratify. The planned 1 January entry into force will in the case not be met, and the Netherlands can only ratify after a positive vote (approving the act) in the referendum, or if the turnout is below 30%. If the Act is rejected, it can only enter into force, after it is resubmitted (and re-approved) by parliament.

After a NO-vote in a referendum?

Although formally possible, it seems politically impossible to pass the approval act after it has been voted down in a referendum [well, if it the "against" votes would be 50-51% a case would possibly be made for ignoring; interpreting the result as a draw] unless and until changes are (NL-specific) negotiated. And that would be complicated, as the association agreement is just one agreement in a framework of many. Meanwhile the practical effect of non-entry into force may be small: the agreement is already for a large part "provisionally applied" since December 2014 and the practical difference between formal entry into force and lengthy provisional application seems small [there are effects however: Ukraine agreed to forbid use of terms of Champagne etc for products made on its territory within 10 years of entry into force; a term that does not start running until all states have ratified].

Thursday, August 6, 2015

Hague Evidence Convention and the EU: did member state loose competence?

The Hague Evidence convention was already concluded 45 years ago, but it has lost not much of its relevance. The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, as it is formally called handles preserving evidence for later civil litigation in cross border situations and thus forms, with 58 parties, an important convention in Private International Law.

The European Union has similar rules in place since the 1206/2001 Regulation on "cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters", which explicitly names the Hague convention and replaces it in situations between member states. One of the reasons for adopting it, was that not all EU member states were parties (still Belgium, Ireland and Austria are non-parties).

One of the peculiarities of the Evidence convention is, that it allows member states of the Hague Conference (in 1970) to sign and ratify the convention, and other states to accede. Contrary to most conventions (but as is the case often with Hague conventions), there is a difference in legal effect of accession and ratification. The convention applies always between all ratifying states, but only between acceding states after their accession has been explicitly accepted by a ratifying state (or an acceding state that acceded earlier). The Hague Conference maintenance a nice excel sheet following acceptance, from which can be seen, for example, that the recent accession of Armenia has only effect with respect to 11 states (including the EU countries Czech Republic, Bulgaria, Germany)

In the past, EU member states have accepted new acceding states at their own initiative and pace, but is this still allowed or should they ask permission from the EU and approve accession of other states "in the interest of the European Union"? This post investigates the present situation, and -to stay with our example- whether the acceptances by Czech Republic, Italy and Germany of Brazil's accession without the approval of the EU are lawful.

Internal competence means external competence
The first question to be asked, is whether the EU has competence with regards to the Hague Evidence Convention. The EU is not a party, and "only" 25 of its 28 member states are, and matters within the EU are now falling outside the scope of the Convention, as the Regulation has replaced them. Nevertheless, in the famous opinion regarding the Lugano convention (Case 1/03, ECLI:EU:C:2006:81), the European Court of Justice  confirmed that if the EU has regulated a matter internally (in this case through the Execution regulation 44/2001), that also gives it competence for externally (the Lugano convention mostly the same text, but between the EU and EFTA states). The mere similarity between the systems makes that the two may "effect eachother". In the case between the Evidence REgulation and Convention this similarity clearly exists.

"Accepting an accession" is a treaty action
What is the acceptation of an accession? According to CJEU in opinion 1/13, and based on teh Vienna Convention on the law of treaties, the acceptance of an accession constitutes a treaty-making action. Thus if the EU would be (exclusively) competent to conclude the treaty, it should be (exclusively) competent to accept an accession. That seems crystal clear.

Exclusive or Shared competence?
Is the competence exclusive or shared? That's for me an open question, but -given the similarities in the fields- I assume, we are talking exclusive competence of the EU here.

The conclusion from this exercise is that acceptance of accessions of the Hague Evidence Convention falls in the (probably exclusive) competence of the EU. That is already the case  for some years (since 2001 when the Evidence Regulation was concluded?), but this became only apparent when acceptance of Hague Child Abduction acceptances were discussed (2012), and only became very clear once CJEU opinion 1/13 was given by 14 October 2014.
So, to return to our Brazil example; were Bulgaria, Czech and Germany at fault? They accepted after 1/13 was given, and thus it seems they are to blame for accepting without being competent to.

Other Hague conventions involved?
With competence of the EU established in the Hague Adoption Convention (explicitly) and the Hague Evidence Convention (by me at least;-), the story might not be over. Opinion 1/13 should also be evaluated in light of the 1996 Hague "Protection of Children" convention (similar provisions in Brussels II: 2201/2003), the 1965 Hague Service Convention (similar to Service Regulations 1393/2007 and 1348/2000). Those conventions however do not  allow member states to accept an accession, but allow them to prevent entry into force by lodging an objection within 6 months. There are more Hague conventions with relevant provisions and where the EU has (at least some) competence (the 1980 Access to justice convention, the Access to Justice convention), but the relevance of those conventions in daily practice is much lower. Last but certainly not least, the Hague Apostille Convention, the most ratified Hague convention with over 100 parties, also has the possibility of objection to accessions, and may (and here I am guessing) also be partly under EU competence (many of the documents falling under that convention fall under an easier EU system)...

Busy period for EC?
The European Commission will have a busy time in proposing regulations (1 for each acceding member state) for acceptance of the two conventions, or it will face delay in implementation. That is not just a legislative matter, but also a practical one: what criteria are to be fulfilled for accepting (or in the case of some conventions: not objecting) acceding countries? Should a national authority be in place (required by most convnetions and necessary for its functioning)? Or should a state show it can comply with the obligations? Do diplomatic conflicts factor in? It would be wise to have a discussion on those matters and see if a regulation can be proposed that delegates the responsibility for accepting to an EU institution or a working group of member states if relevant criteria have been met. That seems the only way to do this transparently and fast.
In the case of the Hague Service Convention and the Child Protection Convention, time is even more of the essence, because entry into force of a regulation allowing member states to reject accession of an acceding state within 6 months of the accession seems much too fast for the EU legislative machine.