the Ukraine-EU Association Agreement up for vote in the Netherlands. ....I think

UPDATE: the Council of State has announced it plans to give its verdict regarding the legal challenge of the referendum on Monday 26 October 4 pm CET. So from that moment we will have certainty on whether the referendum will be held. 

In a previous post, I have indicated that a "corrective consultative referendum" may be on its way to the poles in the Netherlands regarding the Association Agreement the EU (but also all its Member States, as well as Euratom) signed with Ukraine.

The number of app-based requests received, according to
Geenstijl (x= corrected data), via @datagraver

After parliamentary approval of the agreement in the Netherlands, within 6 weeks, over valid 300,000 requests had to be sent to the Election Council (Kiesraad) to trigger the referendum. Last week, on 14 October, the Election Council announced that threshold was reached exceeded: 472,849 requests were received. Based on a detailed test (name, address and signature match with registered data; person eligible to send the request) of a random sample of just over 4112 requests, ca 90.6% was deemed valid, and thus  427,939 were validated, which means a referendum is to take place.

Effect

The referendum has a consultative character only, but in the case of "NO" vote and a turnout of at least 30%, going against the outcome can not be done quietly: a draft act proposing either entry into force of the rejected act or retraction of that act, has to receive full parliamentary approval before it can enter into force. In the case of a clear decision (>60% NO) it thus seems -to me- unlikely that the law will enter into force, because approving such a law against the majority would equate to political suicide. ... Which means we are stuk with "provisional application" of the EU part of the agreement for an indefinite period, and possibly eventually a new agreement will have to be brokered. 

Appeal

Council of State, in The Hague

There is a caveat though, because -as any administrative decision of a government authority- it is open to appeal. In election (and referendum) matters only a single instance appeal is open, directly to the Council of State (Raad van State), and the procedure is designed to be fast: appeals have to be lodged within 6 days (which means Tuesday 20 October at the latest), and the Council of State is to decide the appeal in 6 days of the receipt.

I wouldn't be discussing this, if the Council of State hadn't announced today, an appeal had been filed. An oral hearing date was immediately set for Thursday 22nd, and based on the decision term, that means a final decision will be given on Monday 29th the latest.

Are print outs of online requests valid?

I am not sure what the grounds for the decision are, but according to website geenstijl.nl, one of the campaigners for the referendum, the point of contention is the mode in which the requests were received. They had to be sent to the Kiesraad on a designated form, or a "copy" thereof. The Kiesraad itself provided blank forms, as well as the possibility to create a pre-filled form, which only had to be printed and (manually) signed. The geenpeil campaign however, developed a web-based application, that allowed for submission of all required data, as well as the signature (to be produced using the trackpad of a laptop, drawing using a mouse, or using a touchscreen). Requests could not be printed by the applicant, but were stored on Geenpeil's servers, and printed and delivered by Geenpeil. (noone is contending this is a efficient system: the Election Council received the requests and DIGITIZED them before they further processed them)

According to Geenstijl, this system is in full conformity with the law, and they indicate they checked this with the Election Council. I am not an expert in the interpretation of the law on this point, but think the independent Election Council would have not allowed those forms, if they didn't think they would be within the law. Although we don't know which part of the requests were received using a printed computer-aided signature, according to Geenpeil, only a minority of requests were received through "regular" forms, so an invalidation of those forms will mean that no referendum will be held. But he last word is now with the Council of State.

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 geenstijl.nl (via geenpeil.nl) and burgercomite-eu.nl/. 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. Geenpeil.nl 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].