The new Dutch government wants an opt-out from EU migration policy. But is that possible?

The Netherlands has a new government and with it new ideas.

Dick Schoof, a 67-year-old independent, took over Prime Ministersupported by a coalition of four parties: the far-right nationalist PVV; the conservative-liberal VVD; the populist, pro-farmer BBB; and the newly formed centre-right NSC.

Given the PVV’s dominant position in this unexpected alliance, their joint programme places a heavy emphasis on the issue of migration – a sensitive topic that brought down the previous government and dominated last year’s election cycle.

The agreement contains a comprehensive series of proposals aimed at reducing migration flows that the parties say are “putting pressure” on housing, healthcare, education, financial resources and social cohesion. Initiatives include stricter admission procedures, reversing the burden of proof to reduce the number of positive decisions, deportation, even “forced”, of people without valid residence permits and the immediate return of irregular migrants caught at the Belgian and German borders.

Then at one key point, program reads: “The opt-out from European asylum and migration policy will be submitted to the European Commission as soon as possible.”

The ambitious proposal, which has not yet been formally presented, quickly caught the attention of Brussels when it emerged in the same week that member states gave final approval to the New Pact on Migration and Asylum, a comprehensive blueprint providing collective, predictable rules for managing the arrival of asylum seekers.

Negotiations on the reform took almost four years and capped a grueling political undertaking that stretched back to the 2015-16 migration crisis. The news that the Netherlands, a founding member of the union and a thriving economy, wanted to withdraw from past and future rights was greeted with consternation – and deep scepticism.

After all, opt-out clauses in the EU are a rarity that can be counted on the fingers of one hand.

Denmark has two: from the eurozone and from the Area of ​​Freedom, Security and Justice (AFSJ). Ireland also has two: from the AFSJ and from the Schengen Area, due to the common border with Great Britain. Meanwhile, Poland has one: from the Charter of Fundamental Rights, which concerns only its practical application.

Amsterdam is now fighting for sixth place.

WI OUTSIDE

At its core, the EU is a system of common rules that must be applied uniformly to be effective and, in the event of conflict, take precedence over national standards. Otherwise, the single market would disintegrate into an impossible maze of arbitrary standards.

That’s why opt-outs are unusual: their existence contradicts the bloc’s basic logic and creates a permanent gap in the set of common rights. They are inherently political because they address a highly sensitive interest – or an intense grievance – raised by a country that, if left unaddressed, would prevent the achievement of a larger political goal.

Denmark first asked to be excluded from the eurozone, home affairs and the Common Security and Defence Policy following the Danish rejection of the 1992 Maastricht Treaty (defence clause was abolished (after Russia started the war in Ukraine.)

The opt-out was extended when the 1997 Amsterdam Treaty proposed empowering EU institutions to legislate in areas covered by the ASFJ, such as migration, justice, security and fundamental rights. Until then, the ASFJ had been in the hands of governments, without the involvement of the European Commission.

Ireland demanded the same treatment, and both nations secured a protocol exempting them from any decisions made under the ASFJ. The protocols were added to the Amsterdam Treaty and remain in force today. However, the Irish clause is flexible, allowing Dublin to opt in and out of the migration rules on a case-by-case basis.

Poland later followed suit. In the run-up to the 2007 Lisbon Treaty, which gave the Charter of Fundamental Rights full legal force, the country asked for its application to be excluded from the court, fearing that the liberal nature of the Charter would clash with conservative family values. A protocol was then drawn up to limit its implementation in Poland. (The actual scope of such a clause has since been disputed.)

Can the Netherlands secure a similar agreement on migration and asylum?

For Elise Muir, head of the Institute of European Law at KU Leuven, “the answer is simple: a member state cannot opt ​​out of EU legislation once it has been adopted. The essence of EU membership is the obligation to respect EU laws.”

Muir noted that existing exceptions have been carved out as new countries join or when treaties are amended, “but that is unlikely to happen at this time and requires unanimous consent of all states.”

Alternatively, she added, an opt-out could be suggested while the bill is being negotiated. However, the New Pact is set and there is no desire to reopen the long-awaited renovation.

Mark Klassen, professor of migration law at Leiden University, is equally unconvinced by the Dutch proposal and emphasizes that the Netherlands is “fully bound by asylum law Achievementsboth in its current form and after the reforms including the Migration Pact.”

The pact, with its provisions to extend checks on new applicants, speed up examination procedures, redistribute asylum seekers and create a common financial pool, was introduced to guarantee real solidarity across the bloc, something that the nations of the South complained was sorely lacking. In other words, to make sure that everyone takes on the burden cross-border challenges.

“It would not be in line with the reform if the Netherlands could negotiate an opt-out, which is also one of the main reasons why it is inconceivable that such an opt-out would be achieved,” Klassen said.

The professor believes that the Dutch executive authorities are well aware of the slim chances of obtaining unanimous consent for the resignation, if givenwould likely cause asylum seekers to flee the Netherlands for neighboring countries, and he suspects there is another reason behind this bold move: electioneering.

“I am deeply convinced that our new government knows and understands that there is no procedure to obtain an opt-out by submitting a request to the Commission,” Klassen said. “This will remain an empty promise to the voters of the far-right party in the coalition.”

In a statement to Euronews, the European Commission declined to comment on the political agenda and pointed to the fact that the Netherlands had voted against the Pact on 14 May. he voted in favor of all legal acts submitted.

“The Treaties do not contain provisions (in the form of a protocol) regulating an opt-out for the Netherlands in this area (home affairs),” a Commission spokesman said.

“Once adopted, EU law is binding on all Member States concerned and, once it enters into force, it applies in accordance with the specific provisions contained in each legal act. The instruments of the Pact will be binding on the Netherlands.”