At the 16/17 December 2010 European Council a political decision was taken to amend the Treaties through the simplified revision procedure of article 48(6) TFEU. On March 25, 2011 the European Council adopted the legal decision to amend article 136 TFEU by adding a new third paragraph: “The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.”
The process of approval of this decision by the member states in accordance with their respective constitutional requirements as prescribed by article 48(6) has been completed and the amendment has entered into force on 1 May 2013.
What political/legal difficulties did The Netherlands encounter in the negotiation of the amendment of article 136 TFEU?
There were no difficulties encountered in the negotiation of the amendment of article 136 TFEU. The position of the government is that the amendment embodies no changes of significance and, in fact, is not necessary but was proposed solely because some other countries feared that a structural stability mechanism could be perceived as problematic when compared with the old formulation of article 136 TFEU. The EU level negotiations on the Treaty amendment in themselves were not debated in parliament. Parliament got involved seriously only in the ratification process.
How has the 136 TFEU Treaty amendment been approved in The Netherlands and on what legal basis/argumentation?
The amendment of the Treaty article was ratified in The Netherlands on the basis of art. 91 (1) of the Dutch Constitution. Article 91 states that the Kingdom shall not be bound by treaty without prior approval of parliament, except for those cases where the law determines no such approval is necessary. Such approval may be tacit (Subarticle 2). Despite this, if no reservations of approval are made on conclusion of the treaty, or the treaty contains a ratification clause, treaties are according to international law binding upon conclusion. Subarticle 3 determines that if a treaty conflicts with the Constitution, it has to be approved by a two-thirds majority of both the House of Representatives and the Senate. Whether such conflict exists is decided by both the House of Representatives and the Senate. It is furthermore relevant to note the Parliamentary motion Brinkhorst of 1980 on the relationship between the Dutch Constitution and European law. This Parliamentary motion stipulated that the interpretation of the Dutch Constitution should always be made in a way that the EU integration process is not frustrated. This motion has recently been repealed by Parliamentary motion Van der Staaij that stipulates that interpretation of the Dutch Constitution should exclusively be made on the basis of the intentions of the Dutch legislator. The government response to this repeal is neither the motion Brinkhorst nor the recent repeal of that motion change any of the EU relevant legal obligations for The Netherlands that came into existence autonomously as a direct consequence of the accession to the European Union.
By referring to art. 91 (1) of the Dutch Constitution, the implementation act, implicitly, qualified the amendment as a Treaty. The amendment of the Treaty was passed through parliament as a law and it followed the ordinary legislative procedure.
The general legislative procedure in The Netherlands is – in a nutshell – as follows: 1. Draft legislation is submitted to an organ of the State called Raad van State (“Council of State”) that provides a critical assessment of the law and reports on it. This can then lead to changes in the proposed law or a so-called ‘further report’ that responds to the comments. 2. The proposed law is then submitted to the House of Representatives (Tweede Kamer) where it is first directed to a relevant Committee by the chair of the house and debated there. Members of the House of Representatives can table amendments. 3. After the committee has concluded its scrutiny with a report the bill is debated in the plenary. 4. When the House adopts the bill, it is sent to the Senate (Eerste Kamer). The senate discusses the bill in its committees as well and – not always – in the plenary afterward. Senators in the Netherlands cannot amend a bill. The Senate can only adopt or reject the bill. After a bill passes the senate the bill needs to be ratified by the government (article 87 Dutch Constitution) and after an extra contraseign it is promulgated by the Minister of Justice.
There is no judicial control over the ratification of treaties, nor are referenda provided for by the Constitution (the 2005 referendum on the Constitutional Treaty was organized on the basis of a law, adopted solely for the ratification of that treaty).
What political/legal difficulties did The Netherlands encounter during the ratification of the 136 TFEU Treaty amendment?
The Treaty was ratified in July 2012. Political and legal difficulties over the ratification of 136 TFEU in The Netherlands could have been expected in view of the political situation in The Netherlands at that time. The political situation in The Netherlands during the ratification shared an important characteristic with the period in which the EFSF and EFSM were negotiated (see answer to question IV.1): the absence of a full functioning government. The (minority) government fell in April 2012 because the main right wing Party for Freedom (the PVV of Geert Wilders) withdrew support for the Liberal and Christian Democrats led (VVD and CDA) government after failed negotiations on government cuts. New government was formed in November 2012. According to customary Dutch constitutional law, within this interim period April-November, government can only deal with current affairs and is not allowed to decide on any ‘controversial’ affairs. Nevertheless, both the ratification of Art 136 TFEU amendment and the ESM Treaty took place within this period. Both were adopted with broad parliamentary support from the centre left and right that traditionally strongly support the European Union project. The main political parties that were against consisted of the SP – socialist party – and the Party for Freedom (PVV – the populist Geert Wilders party).
The parliamentary debates on the topic of the 136 TFEU amendment were held simultaneously with the ESM Treaty discussions. As a result these parliamentary debates somehow focussed mainly on the ESM Treaty and marginally on the Art 136 TFEU amendment. Below I provide the relevant debates with respect to the Treaty Amendment. The ESM Treaty is discussed further in the designated section of this questionnaire.
The Council of State report was overall positive but advised to explain more clearly in the so called Memorie van Toelichting (a legislative document accompanying draft laws that explains the purpose and background of the law in more detail) why there has been made a choice to provide for a Treaty amendment that allows a permanent stability fund outside of the EU legal and institutional order. This advice has been implemented in the Memorie that now explains that the preference for an intergovernmental set up was mainly fuelled by concerns that a EU based solution would not have been possible on the basis of the simplified revision procedure. In addition the Council advised to explain more clearly why Member States do no infringe the TFEU rules by setting up a permanent stability mechanism. The reply to this concern – that was also raised in the Parliamentary commission and debates – from the government was that the creation of a permanent stability mechanism was a necessary mechanism to ensure stability of the Eurozone and the non implementation could have potentially led to enormous financial and economic consequences. A collective that exists between the Member States on the basis of the ESM and the strict conditionality’s attached to it therefore does not infringe the no bail-out clause.
The comments of the Parliamentary committee focussed on (i) the relationship between 136 TFEU and the no bail out clause, (ii) the relationship between 136 TFEU and the ESM Treaty and (iii) the potential transfer of sovereignty through the amended article. The government response on these points was that the Treaty amendment was in fact from a legal point of view unnecessary and merely confirming, enforcing or clarifying a legal situation that was already possible on the basis of the existing TFEU. The reason for the amendment according to the Dutch government was that certain Member States felt that there would be more legal certainty if there would be an amendment of the Treaty.
Is there a (constitutional) court judgment in The Netherlands on the 136 TFEU Treaty amendment?
What other information is relevant with regard to The Netherlands and the 136 TFEU Treaty amendment?