European Integration Dynamics in the Area of Freedom Security and Justice

European integration dynamics in the Area of Freedom Security and Justice A case study on the evolution of the Netherlands’ position in the establishment of the European Public Prosecutors Office

Name: Maarten van Hegelsom

Student number: U1254014

1st supervisor: C.M. Colombo

2nd supervisor: M.L.P. Groenleer

Curriculum: Master Thesis Public Governance

Words: 14787

Date: 3rd of December 2018

Maarten van Hegelsom U1254014

Content 1. Introduction ...... 5

2. Theoretical framework ...... 7

2.1. European integration and coordination ...... 7

2.1.1. Neofunctionalism and supranational governance ...... 7

2.1.2. Intergovernmentalism ...... 8

2.1.3. Domestic action ...... 9

2.2. Framing ...... 10

2.2.1. The motivation behind preferences ...... 10

2.3. Operationalisation ...... 11

3. Methods & data ...... 12

3.1. Overall research strategy / research design ...... 12

3.2. Data analysis methods ...... 12

3.3. Case selection, validity & reliability ...... 13

4. Case description ...... 14

4.2. Procedures on paper ...... 14

4.2.1. European Union procedures ...... 14

4.2.2. National procedures in the Netherlands ...... 16

4.3. Procedures in practice ...... 18

4.3.1. The introductory governmental stance ...... 18

4.3.2. Subsidiarity concerns and a scar on institutional relationships ...... 18

4.3.3. Regulation alterations and parliamentary statements ...... 19

4.3.4. Domestic struggles and increased Member State influence ...... 20

4.3.5. Honest broker under domestic pressure ...... 21

4.3.6. The pragmatic positioning and political opposition...... 22

4.3.7. Progress after a domestic political stalemate ...... 23

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5. Analysis ...... 24

5.1. European level dynamics ...... 24

5.2. Domestic dynamics ...... 26

5.3. Positioning at the European level clarified ...... 26

6. Conclusion & discussion ...... 28

Appendix 1: Overview formal coordination of EU affairs by the Dutch Government (Dutch Ministry of Foreign Affairs, 2011; van Keulen, 2012) ...... 31

Appendix 2: the EPPO structure in the final regulation (European Commission, 2017, 3) ...... 32

Appendix 3: Questions during semi-structured interviews ...... 33

Appendix 4: Respondent list ...... 33

Bibliography ...... 34

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Abstract The creation of the European Public Prosecutors Office shows that European Union Member States tackle an increasing number of issues through European cooperation. After initial refusal to take a position in European regulation discussions, the Dutch government decided to join the enhanced cooperation in May 2018. The focus of this research led to the following research question: Why has the Netherlands’ position towards legislative the proposal of the European Public Prosecutors Office evolved over time? The research looks at European integration efforts and framing that shaped the Netherlands’ position over time through document analysis and semistructured interviews to understand the outcomes of the domestic European Union policy discussions. Results show that Member State governments alter their position in further European cooperation discussions because of dynamics in European Union decision making. In this case, the enhanced cooperation through the EPPO put the Netherlands under pressure to join to limit negative externalities in the light of domestic interest. After strong political opposition, results of national elections in 2017 created further momentum for the formal change in positioning at the European level in 2018. This shows a dynamic that should replace one of the aspects of the spillover concept to increase its explanatory capacity through a definition of the “compelled” spillover.

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1. Introduction The Area of freedom security and justice (AFSJ) has evolved tremendously in the last 20 years (Kaunert, Occhipinti, & Léonard, 2014). Being a broad policy area that includes border control, justice and police cooperation and counter-terrorism, it is supposed to bring solutions through integration and increased cooperation among different responsible actors in both Member States and European Union (EU) institutions (European Union, 2018). Reflection at the European level has called for an increase in integration efforts in security and defense areas to tackle future dynamics with the reflection paper on the future of European defense (European Commission, 2017, 2) and Junckers’ State of the Union 2018 (European Commission, 2018, 2) as recent examples. Back in 2013, the EU already noticed that its existing system of intergovernmental cooperation and agencies, without a European coordinating body, was unable to tackle cross-border the EU budget fraud effectively (European Commission, 2013). Prosecution rates varied between 20 and 90 percent among Member States (Rooijendijk, 2017). In the legislative proposal on the European Public Prosecutor’s Office (EPPO), the European Commission (EC) proposed to establish a new institution with a supranational character, to investigate fraud cases and prosecute offenders regarding fraud with EU subsidies and budget to protect EU policy (European Commission, 2013; Oriolo, 2018).

Introduction of new coordination efforts with supranational character causes discussions among and within Member States. Changes in judicial cooperation claiming violations of the EU principles of subsidiarity and proportionality are often argued by Member States initially (Fromage, 2016; Kaunert, Léonard, & Occhipinti, 2013) to prevent further European integration (Fabbrini & Puetter, 2016). Within the Netherlands this became evident, because the Dutch Government did not take a stance during the discussions around the EPPO (Peeperkorn, 2017) while later in 2017, the Dutch government send a notification , that – in case of parliamentary support - it would be willing to join the EPPO (Peeperkorn, 2017, 2). Causes were amongst others, domestic political developments which seem to have changed the original stance (Peeperkorn, 2017). However, this explanation does not provide insight into internal discussions and changes in practice that contributed to the change in Member State positioning (Bulmer & Joseph, 2016). The Netherlands response to the EPPO regulation is an illustrative example of this unexplained dilemma of position change after discussions.

Research on European integration has created a variety of focusses (Craig & De Búrca, 2011). When looking at the frames of these focuses one can see that they remain unable to explain all events during European integration efforts (van Keulen, 2012; Lelieveldt & Princen, 2015). While further developments of concepts as spillovers within supranationalism (Eilstrup-Sangiovanni, 2006; Niemann, 2006; Nugent, 2017; van Keulen, 2012) and high and low politics within intergovernmentalism (Moravcsik, 1993; Nugent, 2017) have increased their explanatory capacity over time, it still has not lead to a full understanding of dynamics that occur. These European integration theories often refer to the role of Member States and national policy discussions within them. An in depth look at Member State positioning and the reasoning behind it is required to increase our understanding in European integration dynamics. Members State actions and motivations have come under scrutiny by researchers who focused on the European level discussions. The yellow card procedures and parliamentary relationships (Cooper, 2015; Fabbrini & Granat, 2013; Fromage & Kreilinger, 2017; Leifeld & Malang, 2014) have not necessarrily been the object of scrutiny as only few researchers have assessed both European and national policy discussions. Simons (2017) focussed on decentralised governments and Bursens, Beyers & Donas (2014) found a bigger role for political parties. Furthermore, we know little about domestic decision-making in countries considering

Maarten van Hegelsom U1254014 secondary EU law, such as regulations (Holzinger & Schimmelfennig, 2012). Policy discussions often show a multitude of competing frames or preferences (Druckman, 2004) aiming to dominate national positioning (Bulmer & Joseph, 2016). By combining key aspects of context, actors and procedures (Ringe, 2005) at the European and national level, this research aims to explain what caused the shift in Member State positioning.

This research contributes to the existing literature by combining European and domestic coordination dynamics that shaped the Dutch position on the EPPO proposal over time. European and domestic dynamics can uncover internal clashes between stakeholders with competing frames (Bulmer & Joseph, 2016; Druckman, 2004; Rittberger & Wonka, 2011). This allows analysis of coordination efforts for further European integration as well as framing, and highlights actions or actors that guide in Member State positioning. It might be clear who are formally involved in EU policy discussions (van Keulen, 2012), but it is unclear what their role is in shaping the final frame and how their motives influence positioning of a Member State throughout the decision-making procedures. This leads to the following research question:

Why has the Netherlands’ position towards the legislative proposal on the European Public Prosecutors Office evolved over time?

The thesis is structured as follows. The theoretical framework explains aspects of EU integration and domestic as well as framing in EU policy discussion at both the European and national level. Subsequently, the chosen methodology is elaborated upon in the third chapter which is followed by the fourth chapter describes the case and procedures as they would be on paper and how they developed in practice. This is followed by the analysis in the fifth chapter in which the procedures, framing and preferences of the actors are structured. This allows to answer the research question after which findings are concluded upon.

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2. Theoretical framework First, aspects of European integration and coordination on EU policy at the European and national level shape the policy arena for actors and power relations involved. While this research focusses on a domestic outcome, one must illustrate coordination at the European level because governments operate at the European level and how these discussions can influence actions nationally (Lelieveldt & Princen, 2015). Therefore, European integration theories of supranational governance and intergovernmentalism are introduced. To conclude that section, coordination efforts by the Netherlands’ government and parliamentary representatives are discussed. Subsequently, observations on framing actions are provided and guiding aspects are linked to motivations behind actor framing which explain the varying preference regarding European integration. Finally, main concepts are operationalised to structure analysis. 2.1. European integration and coordination Peters (2018) refers to policy integration as a situation in which: “All policies that influence one another would be designed in ways that produce synergy, or at a minimum reduce conflicts” (Peters, 2018, p. 1). It provides an insight of the end-state of policy development. However, this research requires an insight in a changing position and therefore in the context, actors and procedures (Ringe, 2005) before this end- state. A concept that can provide this insight is coordination. While it can be seen as an end-state (Peters, 1998) or a process (Boston, 1992). Boston defines it as: “as a process that facilitates a comprehensive, ‘whole government’ perspective instead of narrow sectorial views, avoids overlap and inconsistencies in policy directions, and secures a coherent order of priorities to minimize stakeholder conflict” (Boston, 1992, p. 91). Hence, coordination efforts are combined with policy integration insights to fully explain the case. States coordinate to speak with one voice and to make cooperation as effective and efficient as possible (Gärtner, Hörner, & Obholzer, 2011). At the same time, governments are expected to set and implement priorities (Peters, 2018) and show resilience defending national interests (Kassim, 2003) when dealing with a variation of integration. Since this research deals with the procedures around the creation of the EPPO the focus is on efforts of European and domestic policy integration and their theoretical insights. 2.1.1. Neofunctionalism and supranational governance Recent discussions on European integration have resulted in newly developed focuses (Craig & De Búrca, 2011). However, it is best to go back to basics and discuss the major dichotomy of neofunctionalism and intergovernmentalism, because they have the potential to explain dynamics at play (Lelieveldt & Princen, 2015). When introducing European integration, one must mention supranational governance. Supranational governance embodies the revival of neofunctionalism enabling it to explain European integration by distinguishing procedures in policy areas (van der Vleuten, 2012). Supranational governance theory follows the reasoning that Member States cooperate because of economic benefits through which eventually more competences are attributed to the European level (Lelieveldt & Princen, 2015). Sandholtz and Stone Sweet (1998) use supranational governance to describe a situation in which Member States turn to actors above state level to support them or even take over responsibilities. Haas mentions four stages of this manifestation: first, Member States recognise the economic benefit of cooperation. Second, they conclude that gains can only be achieved through supranational integration in additional policy areas called “spillovers” (Eilstrup-Sangiovanni, 2006; Lelieveldt & Princen, 2015). Third, a new centre of authority is created, pressuring Member States to integrate further. Lastly, competences are officially transferred to the supranational level (Lelieveldt & Princen, 2015).

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When analysing Haas’ work, Eilstrup-Sangiovanni (2006) found that Haas claims that the spillover is an important concept in neo-functionalism (Eilstrup-Sangiovanni, 2006), because integration often slowly progresses through this manifestation (van der Vleuten, 2012). Haas refers to it as “a logic whereby initial steps towards integration trigger endogenous economic and political dynamics which provide an impetus for further integration” (Eilstrup-Sangiovanni, 2006, p. 94). Spillovers do not occur in all areas, they depend on the actors involved and whether their values and perceptions can be altered over time (Rosamond, 2005). There are six aspects to the logic of spillovers (Eilstrup-Sangiovanni, 2006; Niemann, 2006; van der Vleuten, 2012):

• The functional spillover: entails the interdependency of economic sectors and integration can create issues that can only be solved through further integration in related sectors (Eilstrup-Sangiovanni, 2006; Niemann, 2006). The only way to yield maximum benefits is to take more integrative steps in surrounding policy areas, such as the creation of the European Atomic Energy Community (Euratom) to improve cooperation following the example of the European Coal and Steel Community (ECSC) was founded (Lelieveldt & Princen, 2015). • The exogenous spillover: entails the components that emerge outside of the integration process. (Niemann, 2006). External economical and political factors influence the behaviour of European actors at both the EU and national level who pay attention to a global context. An example is the EU’s reaction to migration (Niemann, 2006). • The political spillover: entails pressure caused by non-governmental Member State actors to increase integration. Measures of integration have shown actor interests are sometimes better served at the European level (Eilstrup-Sangiovanni, 2006; Niemann, 2006) and strive for further European integration creating or moving to new centres of decision-making (Lelieveldt & Princen, 2015). An example of this are actions by multinational lobbyists pushing for a single market claiming to create a level playing field to allegedly enhance competition and benefiting consumers. • The social spillover: entails a process among public officials who work on European policy that focusses on behaviour that is preferred in society. This way of thinking is thought to break stalemates and create consensus among Member State governments through supranational problem solving (Niemann, 2006). An example in Europe 2020 is the social investement package which assists in the management of social budgets and in investments in people and their capcities (De la Porte & Heins, 2016) • The cultivated spillover: positions and actions of supranational actors with institutions playing an active role advocating for an increased level of integration using formal and informal tools to cultivate further integration advocating solutions at the European level (Eilstrup-Sangiovanni, 2006). The European Commission can for example iniatiate legislation (Lelieveldt & Princen, 2015) while the European Parliament is often a co-legislator or has to provide its consent on legislation (Niemann, 2006). • The geographic spillover: succesful cooperation by a group of ,sometimes surrounding, Member States can make it attractive for other Member States to join the effort which allows them to limit negative externalities (van der Vleuten, 2012). This spillover focusses on further economic integration as the creation of a single market and its surrounding characteretics (Schimmelfennig & Rittberger, 2015). 2.1.2. Intergovernmentalism Nugent (2003) takes another perspective on European integration following the neo-realist approach in which states are key actors (Craig & De Búrca, 2011). He claims that intergovernmentalism occurs when “nation states, in situations and conditions they can control, cooperate with one another on matters of common interest” (Nugent, 2003, p. 475), while acting in interstate cooperation platforms (Lelieveldt &

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Princen, 2015). There is a focus on governments as sole actors with little influence from other (non-) political actors (Lelieveldt & Princen, 2015). Moravcsik (1993) claims that cooperation is modelled by guidelines showing Member State commitment and ensuring that supranational institutions cannot exceed their mandate. Factors at play here are economic interdependency of Member States and outcomes of previous negotiations between them resulting from bargaining power and possible transaction costs (Moravcsik, 1993). Furthermore, Member States pursue their own interests during these efforts to integrate. This means that without sufficient support for further cooperation the integration effort can stagnate. Further insights for this stagnation are provided by Hoffman (van der Vleuten, 2012).

Hoffman provides a useful distinction between high and low politics (van der Vleuten, 2012). Low politics is led by logic of integration with Member States willing to cooperate, because of shared interests for societal well-being (Lelieveldt & Princen, 2015). High politics is led, instead, by a logic of diversity in a pool of different preferences with issues affecting vital national interests, like sovereignty and territorial security. In these cases policy developments are guarded and discussed at the highest national level by government (officials) and parliament (Lelieveldt & Princen, 2015) which can cause negotiations to be viscous (van der Vleuten, 2012).

This section on European integration shows two different ways in which it occurs. While they differ in focus, neofunctionalism and intergovernmentalism also share insights. First, that each Member State’ preference results from domestic circumstances. Second, that supranational institutions often tend to exceed their mandate. Third, that influences and roles of actors depend on the policy area and type of decision being made (Lelieveldt & Princen, 2015). After elaborating on manifestations at the European level, one should also include domestic coordination efforts, because both neofunctionalism and integovernmentalism refer to Member State dynamics to explain Member State positioning. 2.1.3. Domestic action The importance of national policy coordination on international policy is often underestimated (Metcalfe, 1994) while it often forms an important explanatory factor in integration theories (Hix & Goetz, 2001). Coordination is shaped by procedures that create the playing field for preference discussions. A Member State must coordinate among different levels to safeguard its preferences and tackle challenges it encounters (Bursens, Hielscher, & van Keulen, 2015; Gärtner, Hörner, & Obholzer, 2011). One must assess coordination within the government and include the parliament in the system of accountability (Auel, 2007) to gain a full understanding of the emergent Member States preference (Hix & Goetz, 2001).

Peters (2018) claims governments can use different methods to coordinate policy. They can do so through central agencies that supervise and support other parties, through cabinet committees who coordinate between ministries, through structures that bring parties together, or by creating procedures to increase coordination between ministries (Peters, 2018). Proper strategies require intensive negotiations and preparations with continuous coordination (Metcalfe, 1994). Member States provide their government with expertise and support when working on EU policy through specially constructed processes (Kassim, 2003). However, Peters (2018) claims that one must pay attention to the fact that coordinating at higher levels may cause political friction. Kassim (2003) claims there are two big spectrums in coordination in EU Member States. The first is coordination ambition, which portrays the governments desired level of policy coordination (Kassim, 2003). Ambition can cut across a lot of policy areas and have a strategic focus in which parties also consider consequences across policy areas. It is guided by an effort to agree on as many positions as possible. On the other hand, it can also be selective with little ambition and discussion on

Maarten van Hegelsom U1254014 salient issues with the Government mostly deciding on the positioning. The second difference is the extent of centralisation. In highly centralised systems, actors try to come up with a position that is acceptable to all interested parties, so that everyone communicates the same positioning. If this is not the case, there is no formal leading actor (Simons, 2017), making decision-making more complex. Another way to assess the level of centralisation is to look at conflict resolution mechanisms (Kassim, 2003; Simons, 2017)

Within domestic coordination, the chambers of parliament are expected to check the governments’ actions (Auel, 2007). The parliament monitors governmental action in EU policy areas in an ex ante and ex post fashion in which governmental positions in future European policy discussions and previous actions are scrutinised. It can do so through overall monitoring and scrutiny. They request information and question content of introduced policy or governmental actions at the European level and assess this information provided. Another form is political scrutiny, often carried out by the opposition through parliamentary questions or debate (Auel, 2007) often guided by a lack of trust in the government (Raunio & Wagner, 2016). The parliament is supported by a supporting staff or administration. They are essential, because they filter and select relevant documents for committees of parliament. However, it is up to the members of parliament to hold the government to account and ensure that the shared position also portrays the parliamentary opinion (Högenauer & Neuhold, 2015).

These theoretical insights on European integration and domestic coordination efforts build the context for European and domestic actors and shape expectations and possibilities in the decision-making procedures and the power dynamics between them. The next section sets out the framing in policy discussions that portray the interests of the various actors involved at the European and/or national level. 2.2. Framing When researching actor positioning in European integration, one must uncover why actors prefer a certain focus or frame (Bulmer & Joseph, 2016). Lelieveldt and Princen (2015) define a frame as: “an interpretation scheme with which issues and events are defined and given meaning” (Lelieveldt & Princen, 2015, p. 220). They also define the act of framing: “is the activity of (re-)defining an issue in such a way that it fits a particular frame” (Lelieveldt & Princen, 2015, p. 220) in which the focus is put on certain aspects while others are ignored, shaping a persons’ opinion (Druckman, 2004). Daviter (2007) claims that an actors’ effort to frame policy allows us better insights in actor preferences. Druckman and Lupia (2000) provide a working definition on preference:” a comparative evaluation of (i.e. ranking over) a set of objects” (Druckman & Lupia, Preference Formation, 2000, p. 2). Preference is stored and consulted when actors take decisions (Druckman, 2004) also referring to an actors’ routines and norms (Gärtner, Hörner, & Obholzer, 2011). Constant interaction with the environment can cause a preference change shifting a persons’ general evaluation, like when obtaining additional information (Druckman, 2004). 2.2.1. The motivation behind preferences The preference formation theory uses frames allowing a differentiation of preferences showing perspective and motivation. Through this differentiation it becomes easier to structure explanations for evolving positioning and issue framing. As noted before, issue framing focusses on certain aspects (Druckman, 2004). A Member State can follow different logics to shape its motivation when considering its preference. March and Olsen (1995) distinguished two logics of thinking by Member States. The logic of appropriateness and the logic of consequences. The logic of appropriateness provides a normative scope. It keeps interests of all actors at the European level, like Member States and the European institutions, in mind. The logic of consequences focusses solely on the sole Member States’ interests. It

Maarten van Hegelsom U1254014 does so through a cost-benefit analysis (March & Olson, 1995). Lelieveldt and Princen (2015) distinguish different motivations in efforts for European integration. The first motivation is that problems are best tackled at the EU level, portraying a cross-border motive. There are cross-border issues at play and therefore minimal standards need to be set, like in the fight against international crime. Secondly, there is a political motive. Presence of strong political opposition pressures politicians. This can lead to blame avoidance by these politicians trying to move responsibility to the EU level, weakening opposition or escaping political responsibility. Thirdly, there are economic motives, which view issues from the position that every citizen and firm in the EU should be allowed similar rights and possibilities. Fourth, is the institutional motive, addressing viewpoints and goals of EU institutions, while pure power and status also play a role (Lelieveldt & Princen, 2015). These motivations can also be used to weaken claims to cooperate at EU level (Princen, 2011), or combined to strengthen one’s position (Lelieveldt & Princen, 2015). These possibilities provided by Lelieveldt & Princen (2015) explain motivations of actors behind preferences.

The literature provides further explanations for changes in framing and positioning. Moravcsik (1993) claims that influences of domestic interest in Member States can alter preference formation. Bulmer and Joseph (2016) also underline this influence of internal changes and by responding to changes in the environment. Bursens et al. (2014) refer to the involvement of certain organisational forms, also involving other state and social actors, like parliament or experts. Nugent (2017) and Simons (2017) refer to events in national politics like changes in government or power relations and elections. 2.3. Operationalisation Before deliberating on the content of discussions that took place, one must shape the context further to increase understanding. First, one can try to explain coordination efforts (Boston, 1992) at the EU level using supranational (Sandholtz & Stone Sweet, 1998) or intergovernmentalist (Moravcsik, 1993) theories. If not the intgration theories do not provide an sufficient answer one must turn to the Member State level. Bursens et al., (2015) looked into EU policy coordination in the Benelux claimed that decision-making is shaped by consociationalism, characterised by inclusion. This underlines that Member States stand strongest when following the one state one voice logic (Bursens, Hielscher, & van Keulen, 2015; Gärtner, Hörner, & Obholzer, 2011) often a result of framing and reframing during intensive negotiations (Druckman, 2004; Peters, 2018). After analysis in several Member States, Kassim (2003) shaped the context further by claiming that the Netherlands follows a comprehensive decentralised system of coordination which is characterised by extensive and broad issue coverage (Kassim, 2003). It seems to be dominated by inclusiveness and consensus decision-making, with recently increased parliamentary involvement and scrutiny within a system of deliberation and consensus without leading authoritive actor (Bursens, Hielscher, & van Keulen, 2015; Kassim, 2003; van Keulen, 2012; Raunio & Wagner, 2016).

The framing of actors depends on experience and focus (Druckman, 2004) as well as the actors motivational scope guiding its preference (Lelieveldt & Princen, 2015). The research continues with a description of formal procedures and those that were followed in in practice in the policy disscussion. This allows proper identification of coordination and preference formation aspects. The analysis links actors involved and their positioning throughout the process (Bulmer & Joseph, 2016). This is combined with their framing or preference of the issue at hand (Druckman, 2004) and the actors’ motivation (Lelieveldt & Princen, 2015). Lastly, reasons for the shifting position are assessed by checking positioning over time and actor motivation. The overview of the discussions behind the Nederlands’ decision-making, provides a proper description allowing for the explanation of the changing position.

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3. Methods & data This chapter explains the methods used in this research. First, the research and data analysis strategies are discussed. After that the case selection is substantiated and considerations on validity and reliability are elaborated upon. 3.1. Overall research strategy / research design This research focusses on policy coordination and preference discussions that lead to the shifting position in reaction to the legislative proposal of the EC and the motivation behind it. The most fitting research strategy is one of a case study. This is the best strategy, because it allows to focus on contemporary events to understand complex dynamics (Yin, 2003), including Member State and interminiserial discussions as well as parliamentary scrutiny. This permits to show the coordination procedures that are followed. Furthermore, the actors involved (Bulmer & Joseph, 2016) as well as their policy framing or preferences (Druckman, 2004) and aligned motivations (Lelieveldt & Princen, 2015) are portrayed. It then provides valuable arguments to attach these results to plausible reasons for the shifting position. These arguments include influences by additional actors involved (Bulmer & Joseph, 2016; Bursens, Beyers, & Donas, 2014), characteristics of national politics (Kassim, 2003; Simons, 2017) and changes in the environment (Bulmer & Joseph, 2016; Rittberger & Wonka, 2011). This research uses theoretical insights and multiple data sources to provide proper explanations for the discussion that is under scrutiny (Yin, 2003). The explanation of analysis and the case selection are discussed in paragraphs 3.2 and 3.3. 3.2. Data analysis methods First, the relevant formal procedures and shapes of EU policy at the European and Dutch level are elaborated upon using document analysis. Then followed procedures and stances in the discussions are described. These have been identified through the consultation of documents addressing relevant aspects in both European and Dutch institutions, such as discussions and decisions, and through thirteen semi- structured interviews with representatives and public officials involved providing additional information on coordination, preferences and motivations. The semi-structured layout guided the interviews, but left room for respondents to provide additional information that was not anticipated (van Thiel, 2015). The respondents range from those responsible for and involved in responses, like (former) civil servants in the Hague or Brussels. Other respondents are officials, experts and practioners, who worked on or looked into the case. The questions range from the actions taken by the actors themselves when working on the cases, asking about their preference (formation) and motivations behind it, influences from external factors and asking about ways they influenced the decision making process. The list of questions can be found in appendix 3. The descriptions in chapter four depicts actors involved, power relations between them (Nugent, 2017; Rittberger & Wonka, 2011; Sandholtz & Stone Sweet, 1998; Simons, 2017), discussions, policy preferences (Bursens, Beyers, & Donas, 2014) and encountered frames (Druckman, 2004; Lelieveldt & Princen, 2015) during efforts to shape the Netherlands’ positioning. Gathered data is connected to actors and actions throughout the description for later analysis.

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3.3. Case selection, validity & reliability This research investigates one case in depth to explain an evolvement in positioning. When doing so, one must follow a logic of replication, analysing the case following constant elements (see 3.2) across time allowing proper identification of differences (Yin, 2003). It is also important to note that this research analyses the following subunits over time: the actors and their position (Bulmer & Joseph, 2016) with issue framing or preference (Druckman, 2004) and motivation (Lelieveldt & Princen, 2015) in the decision- making discussions. The case selection for this research was narrowed substantially after consulting of the dissertation of Groenleer (2009) who focuses on the creation and design of EU agencies. He selected three pairs, one of which included agencies in the AFSJ: the European Police Office (Europol) and the European judicial cooperation unit (Eurojust). These agencies did not seem to be popular in empirical research through case studies (Kaunert, Léonard, & Occhipinti, 2013) and seemed to be elements of an issue area providing space for further research with the EPPO discussions coming up as recent case. The focus on one policy area allowed to look at developments in depth.

When considering validity, one must keep internal and external validity in mind. Internal validity addresses the question whether the research measures what it aims to focus on and uses an adequate operationalisation of the research (van Thiel, 2015; Yang & Miller, 2008; Yin, 2003). This is done through operationalisation, using theoretical insights from authors mentioned in the previous section and triangulation through continuous checks in interviews and document consultation. External validity is about the generalisation of the research, meaning that same results should be found when using other actors, institutions and times (Yin, 2003). The Netherlands follows a standard procedure when dealing with proposals for European cooperation. Central actors such as ministries and parliamentary representatives are quite consistent actors over time which can improve levels of external validity in case of the Netherlands. Furthermore, the generalisation can be expanded towards other EU Member States with varying political systems due to similarities in procedures and measures provided by the Lisbon Treaty. In Sweden, coalitions are formed by multiple parties if no party has the sole majority in parliament. They then form a government in which consensus among leading politicians is of essence (County Administrative Board of Västra Götaland, 2016). In the UK ministers discuss first to agree their stance on EU level policy discussions and similar parliamentary instruments are at play in a system of majority politics (Kassim, 2015).

Reliability is also of essence in scientific research. The same results are found when following the steps of this research repeatedly (Giannatasio, 2008). This is also ensured by the framework mentioned in paragraph 2.3. It focusses on reasons for change and motivation in addition to actor identification, preferences and consequential issue framing. The interview questions also provide a certain level of reliability by controlling developments during the interviews. Furthermore, the timeline of the research starts in September 2013 with the introduction of the BNC fiche for the EPPO and ends in May 2018 with the confirmation of that the Netherlands wants to be included in the enhanced cooperation under the EPPO. This ensures that new developments that can alter the results are not included when replicating this research.

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4. Case description This section describes the coordination process that lead to the agreement for the establishment of the EPPO and the Netherlands’ position change. First, there is a short recap on the initial proposal of the EC for an EPPO. This short description of the initial proposal for the EPPO shortly illustrates the proposed need for its creation and its main characteristics. Second, this chapter clarifies the legislative procedures followed at EU level, including changes brought about by the Lisbon Treaty. Third, the Netherlands decision-making procedures for EU policy are explained identifying when and how actors are formally involved. After the formal procedures, practice is described structured along the decision-making process that formed the Dutch position on the EPPO. It provides views of key players in the decision-making process at both the EU and national level also showing that these discussions at two levels are intertwined and occur in reaction to one another. Therefore, these discussions at two levels are combined to show the decision process dynamics through a longitudinal study. 4.1. Initial legislative proposal for the creation of the EPPO The creation of the EPPO has been discussed for about 20 years (Oriolo, 2018), explicitly appearing through provisions in Article 86 and supported by Article 325 on combatting EU fraud in the Treaty on the Functioning of the EU (TFEU).1 As noted before, the EU noticed that capacities of its existing agencies and actions taken by Member States were insufficient to tackle cases of fraud with EU’s interests. While admitting that prosecution falls within competences of Member States, the EC pointed out that only a limited number of fraud cases were investigated by Member States while potential harm to EU financial interests is substantial (European Commission, 2013). About half of the cases provided by OLAF were followed up by the Member States in 2012 with prosecution rates varying tremendously (Rooijendijk, 2017). Lastly, the split of responsibilities between EU agencies and limitations at the EU level created limited ability to tackle fraud with EU funds.2 The EPPO was to get a very specific mandate having authority to tackle fraud with EU budget (Ligeti & Simonato, 2013). Its establishment was proposed by the EC in July 2013 through legislative act and it is planned to become operational in 2020-21 (Directorate-General for Internal Policies, 2016; Oriolo, 2018). The EPPO should provide the capacity to combat fraud with EU finances3, through the Protection of the Union's financial interests (PIF)-directive.4 The draft proposal of 2013 explicitly provided exclusive competence regarding fraud with EU funds for the EPPO, giving it full control over these cases5 with direct responsibility for investigations and prosecution (Ligeti & Simonato, 2013). This would affect the allocation of competences as laid down in the Lisbon Treaty.6 4.2. Procedures on paper 4.2.1. European Union procedures The decision-making procedure in the AFSJ before the Lisbon Treaty is addressed to illustrate changes in procedures following the Lisbon Treaty. Before the Treaty, the Council was the sole EU legislator (Pech, 2011) with very limited parliamentary involvement in EU level discussions by governments (Jans & Pietdrafita, 2009). For example, Eurojust was established as an EU agency in 2002 through a Council

1 Legal base to set up a European Public Prosecutor’s Office by the Council with consent of the EP. 2 Proposal for a Council Regulation COM (2013) 534 final 3 Press Release European Commission IP/01/1794 4 Directive 2017/1371 European Parliament and Council 5 Proposal for a Council Regulation COM (2013) 534 final 6 Treaty on the Functioning of the EU (TFEU), article 5

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Decision under Justice and Home Affairs (JHA), the previous name of the policy area of the internal security of the EU. This policy area fell under the third pillar regarding EU decision-making. This meant that the Council needed unanimity in voting to progress with decisions, focusing on intergovernmental relations between Member States (Jeřábek, 2014). In practice, this meant that parliamentary involvement was very limited at both national or European level effectively leaving the national decision-making exclusively to Member State governments (Jans & Pietdrafita, 2009).

In the meantime, the EU’s functioning and decision-making have changed, including changes following the implementation of the Lisbon Treaty.7 First, the EP has become a co-legislator in the AFSJ. Another addition is that Member State parliamentary involvement has been introduced (Verdun, 2013). National parliaments are often better informed and consulted (Högenauer & Neuhold, 2015; Pech, 2011). Therefore, following Protocols 1 and 2 to the Lisbon Treaty8, they have been given a privileged position to react to legislative proposals of the EC through an Early Warning Mechanism (EWM). These mechanisms can be followed by yellow or orange card procedures when a sufficient number of parliaments perceive threats to subsidiarity (Fromage, 2016; Piris, 2010) allowing them to react to legislative procedures by sending a response to the EC (Cornell & Goldoni, 2017; Verdun, 2013). The EC can react by choosing to maintain, review or withdraw the proposal (European Commission, n.d.; House of Representatives, n.d.). This shows an increasing parliamentary involvement and led to an increased inclusion of actors (Karlas, 2012), incorporating them in earlier policy development and allowing increased interaction between Members State parliaments (den Boer & Block, 2012). This increased involvement of (political) actors influences decision-making, because governments need to consider the necessity of the approval by additional actors, like parliamentary representatives, making procedures and discussions more complex.

When describing policy integration at the European level, one must also look into the practical variation in European integration or differentiation (Duttle, et al., 2017). Examples are regulations that only affect some Member States or regulation affecting non-EU members (Holzinger & Schimmelfennig, 2012). This differentiation has evolved in a trend (Kubin, 2017) under its major driver: the EU’s enlargement (Duttle, et al., 2017). It is often used to overcome stalemates or contrasting Member State preferences, values or traditions (Duttle, et al., 2017; Holzinger & Schimmelfennig, 2012; Kubin, 2017) while also allowing space for Euroscepticism to remain out of the integration (Duttle, et al., 2017). Cases of differentiation vary greatly across Member States and policy areas with attention being paid to various polices showing a rise in case of differentiation in areas of monetary, interior and justice policy (Duttle, et al., 2017).

The Lisbon Treaty further formalised a method of differentiation that had only existed on paper since 1997: enhanced cooperation (Piris, 2010). Enhanced cooperation gives the possibility to at least nine Member States to further cooperate at supranational level if no unanimity can be reached in the Council of Ministers. However, this variation requires the support of a qualified majority of the Member States and the approval of the European Parliament. In case of an introduction of additional rules under the enhanced cooperation unanimity is required among the Member States that work together under the enhanced cooperation and EP consent is also needed (European Commission, 2018). The Member States that are included in these systems of enhanced cooperation can vary, resulting in a changing European core when reviewing policy areas under discussions (WRR, 2018). Furthermore, this cooperation can also

7 Treaty on the European Union (TEU), articles 4 and 5. 8 OJ 2010/C 83/01 Protocols (No1: on the role of national parliaments in the European union) & (no2: on the application of the principles of subsidiarity and proportionality)

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have several effects according to Kubin (2017). First, Member States involved in the cooperation might become innovators who set a trend with other Member States following their path in a later stage. Second, consistent cooperation by a group of Member States might also scare other Member States who observe from a distance. This eventually leads to Member States joining the effort, because they wish to be involved in policy making and deliberations that could affect them anyway. 4.2.2. National procedures in the Netherlands The Netherlands has a formal framework for EU policy debate allowing it to provide a consistent stance. It includes discussions at different levels, between public officials, members of government and representatives (Dutch Ministry of Foreign Affairs, 2011; van Keulen, 2012). The House of Representatives (Tweede Kamer) and the Senate (Eerste Kamer) will be often referred to as chambers of parliament or parliament. These discussions provide the possibility to address issue framing. I have chosen to split the procedures, because they show possible tensions and dynamics in and between procedures of the Government and parliament. There seems to be a constant dynamic of governmental action and continuous demand for accountability and scrutiny by the chambers of parliament.

Policy developments at the EU level are handled by Dutch civil servants in support of the government. A formal overview of these procedures can be consulted in appendix 1. New documents go through this scheme resulting in a coordinated position for discussions at EU level. At first, proposals are checked for competence allocation, making sure there are no issues with proportionality and subsidiarity guidelines9, and checked for further implications for the Netherlands and its policy (Eerste Kamer der Staten-Generaal, n.d.). This is done by the review group of new Commission proposals (Beoordelingscommissie Nieuwe Commissievoorstellen) or BNC working group, which discusses new proposals. Representatives of all ministries and representatives of decentralised governments are included. Their view is the foundation of a fiche, which summarises the Governmental position considering developments with motivation. The fiche is then passed to actors involved in later stages (Dutch Ministry of Foreign Affairs, n.d.). In this case, decentralised governments are excluded, because they have no say in this policy area (Simons, 2017).

After this, a frame for interdepartmental discussion and coordination is further developed. This consists of policy discussion and coordination among several hierarchical levels: • The first it that of the Coordination Committee for European Integration and Association issues (Coördinatie Commissie voor Europese Integratie- en Associatieproblemen) (CoCo). It prepares the Dutch position for discussions in Brussels which are determined by the Netherlands council of Ministers (Dutch Ministry of Foreign Affairs, n.d.). • The CoCo instructions are also elaborated in interministerial consultations and discussed on a weekly basis during consultation-instructions (PV-instructie overleg) to guide the representatives of the responsible ministries at the Permanent Representation (PR) in Brussels. Ministry representatives support the Permanent Representative and his deputy in their activities representing the Netherlands in the political Committee of the Permanent Representatives (Comité van Permanente Vertegenwoordigers) (COREPER2). Support staff discusses policy in EU working groups while sometimes additional preparations are made in special committees (Dutch Ministry of Foreign Affairs, n.d.).

9OJ C326 26-10-2012, article 5 p18: Proportionality: EU action will not go further than is required to fulfill EU objectives. Subsidiarity: the EU only acts when goals cannot be achieved by Member States and can be better achieved at EU level.

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• The next level is formed by the High civil servants committee on EU matters (Hoog Ambtelijke Commissie Europese Aangelegenheden) (HACEU). It is chaired by the secretary general of the Ministry of General Affairs with representatives of the Ministries of Foreign affairs, Economic Affairs and Climate Policy, Finance, Agriculture, Nature and Food Quality (Dutch Ministry of Foreign Affairs, n.d.). They prepare the coordinating meeting at ministerial level. • Final policy coordination normally takes place in the Ministerial EU Committee (Ministriële Commissie Europese Unie) (MCEU). The committee is formed by the prime minister, the Ministers of Foreign affairs, Economic Affairs and Climate Policy, Finance, Agriculture, Nature and Food Quality and the secretary of state of the Ministry of Foreign Affairs (Dutch Ministry of Foreign Affairs, n.d.). It sets the strategic vision for all European policy issues and prepares the European Council and other formations of the Council. In addition, Ministers and the Prime Minister can choose to discuss important issues with steering groups when situations demand strategic discussion before its meeting. • The last step is to pass the plan through the ministerial council, which can decide on the strategic position if no agreement has been reached in the MCEU (Dutch Ministry of Foreign Affairs, n.d.).

The websites of the chambers of parliament provide a clear overview of the tools to influence European decision-making (Eerste Kamer der Staten-Generaal, n.d.; Tweede Kamer der Staten-Generaal, 2014). These procedures indicate their role in procedures of accountability and what documents should be assessed to find out whether, and if so how, the chambers of parliament influenced decision making.

The first role of the chambers of parliament is to monitor the actions of the Government. At first, both institutions get a copy of the review made by the BNC working group. Then relevant ministers or state secretaries write a letter, or Annotated Agenda (geannoteerde agenda) in which they provide insights in the position they intend to take during Council meetings in Brussels (House of Representatives, n.d.). The specialised committees or political parties can ask questions or provide opinions in response to these agenda’s. Furthermore, there is possibility to discuss policy proposals with the responsible minister through a General Discussion (Algemeen Overleg) (de Geus, 2011; House of Representatives, n.d.) or plan discussions with stakeholders, experts and European institutions to acquire more information (House of Representatives, n.d.). The European Affairs Committee can also appoint rapporteurs. These individuals monitor the negotiation process, talk to stakeholders and stay in contact with other parliaments and the rapporteur of the European Parliament (Tweede Kamer der Staten-Generaal, n.d.).

Furthermore, the chambers of parliament can call for scrutiny reservation (behandelvoorbehoud) or bring up a motion. If they believe that certain proposals are particularly important, they can ask the Government to restrain from further action till after further debate with the European Affairs Committee. The Committee can use detailed information provided by the Government to exercise further scrutinise (Eerste Kamer der Staten-Generaal, n.d.; House of Representatives, n.d.). A motion can be supported by a majority of parliament and sends a strong political message to the Government (de Geus, 2011). The chambers of parliament can even call for a motion of no confidence. This instrument allows to get rid of a sole minister or even the Government, because of their actions (de Geus, 2011). The last way to influence decision making is through the subsidiarity control mechanism. When the national parliament believes that EC proposals do not respects the subsidiarity principle, they can make their view known through reasoned opinions to the EC (European Commission, n.d.; House of Representatives, n.d.).

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The overview provided in this section shows a big role for public officials from different ministries at different levels in preparing policy discussions by scanning, selecting and assessing relevant documents on EU policy. They support or guide the Government when they have to take positions in EU policy discussions. Examples include reactions to statements by other Member States or legislative proposals. During all these activities of government officials the chambers of parliament are in informal contact with one another (Mastenbroek, et al., 2014). They form a fundamental link in the system of accountability in the Netherlands keeping the government in check. 4.3. Procedures in practice 4.3.1. The introductory governmental stance The domestic discussion started with the BNC fiche for the EPPO regulation on the 6th of September 2013. The Government notified the chambers of parliament that it supported the EC’s effort to increase the capacity to combat fraud. However, the EPPO’s mandate was not clear and there was uncertainty about pressure on national capacity its establishment would create. Initially, the Dutch Government opted to take a definitive position on the value added of the EPPO only when the regulation would be finalised.10 This view resulted from inter-ministerial and departmental meetings aiming at full participation in EU discussions to manage possible consequences for the Netherlands. The Ministries of General Affairs and Foreign Affairs focused on the overall Dutch position at the European level (Personal correspondence – Franssen – 19-06-2018; public official ministry of Foreign Affairs - 29-06-2018). The Ministry of Security and Justice on the other hand handled the substantive discussions on the EPPO through a cooperation of the directorate general (DG) for international affairs and DG legislation (Personal correspondence - Franssen - 19-06-2018). The Meijers Committee claimed that the Netherlands should not forget to put emphasise on the protection of fundamental rights, including the harmonisation of procedures, legal safeguards, and political accountability as well as improvement of the regime of data processing (Personal correspondence - Geelhoed - 20-06-2018).11 4.3.2. Subsidiarity concerns and a scar on institutional relationships In October 2013, the Tweede Kamer MPs Van Oosten and Recourt got support for a motion that asked the Government to disapprove the proposal to establish the EPPO due to subsidiarity concerns as proposed tasks were better pursued at national level.12 The Eerste Kamer also showed sufficient support for a subsidiarity check. 13 In their view, work at EU level could be carried out by expanding the competences of existing agencies (Personal correspondence – van Dooren – 21-06-2018). The Dutch public prosecution service also opposed the EPPO, because its added value remained unclear and because it would stretch national capacity (Personal correspondence - Monique Corten - 26-06-2018). The Eerste Kamer decided to support the note on subsidiarity also adding that the prioritization of cases by the EPPO, by for example a Greek prosecutor, would become a big issue, because it could harm national cases that are intertwined with European cases (Personal correspondence - public official ministry of Justice & Security - 31-05-2018).14

10 Tweede Kamer, 2012-2013, 22.112, TK, 1681 11 Nota by Meijers Committee CM1315 12 Tweede Kamer, 2013–2014, 32 317, nr. 189 13 Eerste Kamer, 2013-2014, short notes committee meeting on the 1th of October 2013 14 Concept letter of the Tweede Kamer in response to COM (2013) 534 by the European Commission.

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Both chambers of parliament started the parliamentary reservation allowing a procedure of improved information sharing (Personal correspondence - van Dooren - 21-06-2018) which was dropped later due to formal agreements on information provision by the Government.15 Minister of Justice (MoJ) Opstelten informed the parliament16 that at the first EU meeting on the regulation on the EPPO a large group of Member States did not approve the content of current regulation on the EPPO eventually triggering a yellow card procedure with 19 chambers of national parliaments expressing concerns with regard to the EPPO (Personal correspondence - Supporting Staff Tweede Kamer - 18-07-2018). This gave the EC an opportunity to review its proposal relating to subsidiarity and proportionality issues (Fromage, 2016). A month later the EC replied to the subsidiarity concerns in a written form.17 They struck a nerve in both chambers of Parliament by denying possible subsidiarity issues with little substantiation. This reply in combination with the timing of the introduction (during parliamentary recess) of the proposal by Commissioner Reding apparently aimed at evading national parliamentary scrutiny created a tense relationship between the EC and the Dutch parliament (Personal correspondence - Mittendorff - 01-06- 2018; supporting staff Tweede Kamer - 18-07-2018).

Contents of the national discussion changed following the dialogue at the European level with the Volksparty voor de Vrijheid en Democratie (VVD) focusing on uncertain democratic accountability, budget and domestic consequences. The VVD and the public prosecution service added that the Netherlands was able to handle its fraud cases properly and that EPPO would have benefitted only those Member States with a less proven track record (Personal correspondence – Moraal - 24-07-2018). MoJ Opstelten also used the additional criticism of the Dutch prosecution service regarding exclusive competence, capacity and linked aspects in his accountability to the chambers of parliament. He emphasised that this version of the regulation was not going to be adopted. The MOJ was given permission to continue negotiations, but had to inform the chambers of parliament according to previously set arrangements.18 The Tweede Kamer also appointed a rapporteur, Ard van der Steur of the VVD to monitor developments around the EPPO and keep it informed (Tweede Kamer der Staten-Generaal, n.d., 2). 4.3.3. Regulation alterations and parliamentary statements Far reaching consequences for national action were not seen as infringing by the EC. However, comments by the Member State parliaments were kept in mind in further discussions19 and eventually led to a change in governance to a collegial structure (Personal correspondence – Mittendorff – 01-06-2018). The new governance consisted of one chief prosecutor supported by two deputies. Furthermore, a college of prosecutors with one prosecutor from each Member State was established. These are to be divided into groups in expert chambers with three members. The last layer consists of European Delegated Prosecutors for investigations in their own country20, see appendix 2. Further discussion emphasis lay on procedural safeguards to meet the concerns of national parliaments. Discussions continued on the original proposal for regulation21 with the Greek Presidency officially developing a proposal for the EPPO structure.

15 Tweede Kamer, 2013–2014, 33 709, nr. 4 16 Eerste Kamer, 2013–2014, 32 317, DA 17 COM (2013) 851, Eerste Kamer, 33 709, E 18 Tweede Kamer, 2013–2014, 22 112, nr. 1766 19 Tweede Kamer, 2013–2014, 33 709, nr. 5 20 European Commission Press release IP/17/1550 21 Eerste Kamer, 2013–2014, 32 317, DP

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In April 2014 the Tweede Kamer repeated its position on the EPPO through its position paper drafted by rapporteur Van der Steur (Personal correspondence – Supporting staff Tweede Kamer – 18-07-2018) (Tweede Kamer der Staten-Generaal, 2014, 2). The paper explained that the Tweede Kamer opposed the EPPO in this form and proposed an alternative for its structure. The EPPO should be a supportive agency, a watchdog, advising and coordinating Member State action regarding EU fraud and prosecution when Member States lack the national resources to prosecute. The collegial structure was to be maintained. The Tweede Kamer still referred to vagueness in the regulation and that it would jeopardise Member State, OLAF and Eurojust efforts to combat fraud22 (Personal correspondence - supporting staff Tweede Kamer - 18-07-2018). The MoJ wrote the chambers of parliament that there had been improvements in the regulation, but there were still issues with relationships and the broadness of the EPPO competence with discussions at EU level in an orientation phase.23 Furthermore, developments in discussions at EU level showed Member State support for the collegiate structure with aligned structure and competence limitation through the PIF directive24 (Personal Correspondence Erkelens - 25-06-2018). Additionally, the majority of Member States supported the proposals on judicial review in national courts and on procedural safeguards with judicial review of information sharing still under discussion.25

The Tweede Kamer later sent a letter to the EC calling for an improved exchange of information and cooperation. It underlined that it believed that the EC’s previous response looked like a refusal to amend the regulation and a statement that it was looking into proceeding through enhanced cooperation. With these actions the EC did not foster the levels of trust and relationships with a group of national parliaments (Personal correspondence Supporting Staff Tweede Kamer – 18-07-2018)26. The EC replied through a letter stating that a quick reply had been possible because the case had been given priority, it underlined that it aimed to include all factors mentioned by the parliament in Council discussions and that it followed prescribed procedures.27 The EC was careful in positioning itself in the discussion, because too much involvement in regulation discussions with Member States could be counterproductive (Personal correspondence - Smulders - 13-07-2018). To make things worse for domestic opponents of the EPPO, the chambers of the Dutch parliament noted that the responsible EP committee seemed to support the EC’s original proposal, leaving responsibility for scrutiny in the hands of national parliaments.28 4.3.4. Domestic struggles and increased Member State influence Later discussion was caused by an issue raised by the Meijers Committee which reacted to European developments by outlining consequences for legal protection regarding admissibility of evidence across the EU.29 The responsible committee of the Eerste Kamer referred to an increase in pressure on the Dutch legal system through the EPPO regulation (Personal correspondence - van Dooren - 21-06-2018) while a majority in the Tweede Kamer was surprised with the occurrence of technical discussions at the European level, while there was no clarity on the institutes’ creation.30 The MoJ reacted by stating that the goal of

22 Tweede Kamer, Position Paper – Rapporteur Ard van der Steur 23 Minister Opstelten, letter to Eerste Kamer on the proposal of Greek Presidency 24 Protection of financial interests, COM (2012) 363 25 Eerste Kamer, 2013–2014, 32 317, DX 26 Tweede Kamer, Letter tot he EC – Rapporteur van der Steur - 2014Z07029/2014D13834 27 Eerste Kamer, 2013–2014, 33 709, L 28 Tweede Kamer, 2013–2014, 32 317, nr. 226 29 Meijers Committee CM1408 30 Tweede Kamer, 2014-2015, 32.317, TK, 274

Maarten van Hegelsom U1254014 the Government was to consolidate its position to not get side-lined and wait and respond to the final text of the regulation (Personal correspondence - Public official ministry of Foreign Affairs - 29-06-2018).

Political and scientific discussions brought forward that the EPPO had to remain independent and efficient when carrying out its tasks (Personal correspondence – Erkelens – 25-06-2018). Independence meant that it would have to be independent from Member State and European institutions with efficiency harnessed in proper structures, procedures and working methods31 with European Prosecutors validating work of delegated prosecutors.32 In the meantime, MoJ Opstelten resigned due to a loss of confidence on an issue not related to EPPO (nu.nl / ANP, 2015). Minister Van der Steur, previously EPPO rapporteur, became his successor with Jeroen Recourt as new rapporteur for the Tweede Kamer (Tweede Kamer der Staten- Generaal, n.d., 2). Recourt’s mandate differed from van der Steur’s mandate, because he had no majority supporting his positive stance towards the EPPO (Personal correspondence – Recourt - 18-07-2018).

In the meantime, national parliamentary oversight was introduced in EU discussions on the regulation which also provided an important role for delegated European prosecutors and domestic prosecutors.33 Execution of prosecution was to take place under delegated European Prosecutors resulting in support of a majority of national parliaments that were involved in the yellow card procedure.34 Yet again the minister repeated that “nothing is agreed till all is agreed,” showing that the government was not taking a final position until the EPPO regulation had been finalised35 while European negotiations moved closers to Member State demands with more competences in the hands of Member State authorities.36 As the Netherlands was about to assume the rotating presidency of the Council, it would have to function as an honest broker facilitating and allowing progress37 (Personal correspondence - Mittendorff - 01-06-2018). 4.3.5. Honest broker under domestic pressure In the first semester of 2016 the Dutch Presidency advanced EPPO discussions while keeping domestic demands in mind.38 The Council discussions brought forward elaborations on relationships with other agencies, financial and staffing matters and budgetary consequences39 followed by discussions on the case management system (CMS) and data protection and broad conceptual support for the regulation.40 In the meantime, the Netherlands Data Protection Authority entered the domestic debate. It believed that the regulation for the creation of EPPO should enhance the protection of personal data, including timelines for storage of data and proper processing of case-related data through the CMS. 41 In the Netherlands, the Tweede Kamer supported a motion by several VVD party members in which stated that the Government should yet again notify other Member States of the parliamentary position on the EPPO42

31 Letter by Martine Reicherts Commissioner for Justice, Fundamental Rights and Citizenship at the 12th OLAF Conference of Fraud Prosecutors on the 27th of October 2014. 32 Council of the European Union 16993/14 33 Eerste Kamer, 2014–2015, 33 709, O 34 Eerste Kamer, 2014–2015, 33 709, P 35 Eerste Kamer, 2014–2015, 32 317, EV 36In the wake of these discussions the EC pointed out that the EPPO would be losing its strength following decisions to place competences under Member State authorities, also affecting the EPPO’s independence. 37 Tweede Kamer, 2014–2015, 32 317, nr. 316 38 Eerste Kamer, 2015–2016, 32 317, FQ 39 Tweede Kamer, 2015–2016, 32 317, nr. 394 40 Eerste Kamer, 2015–2016, 32 317, GN 41 Letter from the Netherlands Data Protection Authority to committees of the Eerste Kamer 03-03-2016 42 Tweede Kamer, 2015–2016, 32 317, nr. 39

Maarten van Hegelsom U1254014 to illustrate the consistent opposition to the EPPO (Personal correspondence - supporting staff Tweede Kamer - 18-07-2018). Furthermore, on the 10th of October 2016, the rapporteur provided the Tweede Kamer with a report of his discussions with the Dutch public prosecutors, who still had concerns. These included uncertainty on demands on domestic capacity, tasks of the delegated prosecutor and the scope of competence of the EPPO43 (Personal correspondence - Corten - 26-06-2018; Recourt – 18-07-2018). A few days later, MP Van Oosten (VVD) filed another motion asking the Government not to join the EPPO in its current form which was adopted by the Tweede Kamer.44 4.3.6. The pragmatic positioning and political opposition Later that year, MoJ Van der Steur stated that the plan in the Council was to finalize the EPPO regulation in December 2016. Furthermore, he explained the Governments’ strategy to remain at the table to influence decisions. He noted that a large group of Member States was planning to support the final regulation. If no unanimity would be reached, enhanced cooperation between Member States would be the only available option.45 Discussions regarding the PIF guidelines yielded as a result that national authorities held their competences. Furthermore, the EPPO would only be included in serious cases with damage of at least ten million euros across multiple countries. The minister also explained that increases in the competence or competence creep of the EPPO would be impossible, because it would require unanimity among participating Member States under the regulation (European Commission, 2018).46

The definitive regulation on the EPPO showed significant changes compared to the original proposal of the EC with the drafting regulation meeting a significant number of Dutch parliamentary demands (Personal correspondence - Erkelens - 25-06-2018; supporting staff Tweede Kamer – 18-07-2018). The changes included: a collegial structure, a delegated prosecutor of a Member State responsible for action in that same Member State, shared competence, a clear competence based on the PIF- directive, legal primacy for the Member States legal context and possibility for (limited) parliamentary scrutiny.47 The minister sent letters requesting the chambers of parliament to reconsider their stance. The pragmatic support for the EPPO of the Dutch prosecution service was added as an attachment. They took a pragmatic stance which can be summarised as: “if you cannot beat them, join them” to keep grip on the Dutch judicial system (Personal correspondence - Corten - 26-06-2018). They noted that the Netherlands would deal with judicial requests from the EPPO anyway whether they were in or outside the cooperation.48

However, these letters did not manage to alter positions of a sufficient number of members of parliament regarding the EPPO at the time. Parliamentary discussions turned more principled and political in character (Personal correspondence – Supporting Staff Tweede Kamer – 18-07-2018). Some political parties were sticking to sovereignty arguments, fear of competence creep, democratic control and maybe even replacing the Dutch prosecution service. Supportive parties focused on the cross-border character of issues under discussion and the need for further European cooperation in other policy fields (Personal correspondence – Mittendorff – 01-06-2018; supporting staff Tweede Kamer – 18-07-2018). The minister notified parliament that most Member State parliaments were barely involved in discussions around the

43 Letter rapporteur tot he Tweede Kamer - 2016Z10979/2016D22736 44 Tweede Kamer, 2015–2016, 32 317, nr. 428 45 Tweede Kamer, 2016–2017, 32 317, nr. 443 46 Eerste Kamer, 2016–2017, 32 317, GZ 47 Eerste Kamer, 2016-2017, 32317, 2019825 & European Commission, Regulation (EU) 2017/1939 48 Eerste Kamer, 2016-2017 - 33.709, EK, V

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EPPO mainly because most of them saw the EPPO as a relief to domestic pressure.49 The Council of Justice and Home Affairs later broadly supported the creation of the EPPO, but no unanimity was reached. 4.3.7. Progress after a domestic political stalemate At the start of 2017 the Maltese presidency wanted to continue with the draft regulation. It continued to ask which Member States wished to join the EPPO under enhanced cooperation in which only a group of Member States would cooperate under the EPPO regulation. This resulted in a halt on further negotiations for four months. At the end of January MoJ van der Steur stepped down, because he did not believe he had had sufficient support in the Tweede Kamer after a case of misinformation with Stef Blok replacing him as MoJ (Pelgrim, 2017). The Government noted that if the Netherlands did not join the EPPO, the Agency would not have any official competences under Dutch law but would still get requests for judicial assistance (Personal correspondence – Corten – 26-06-2018). In the months thereafter, it became clear that 17 Member States were working towards enhanced cooperation to establish an EPPO. Eventually 20 Member States agreed to join the EPPO in an early stage.50&51 At the same time minister Blok notified the chambers of parliament that the final regulation was being prepared and asked them to review it and come with a position to guide Dutch position in the EPPO discussion. At the same time he also emphasised that, with general elections coming up, it was up to the new parliamentary representatives to decide whether the Netherlands should join the EPPO.52

On the 10th of October 2017, the coalition agreement between the VVD, Democraten 66 (D66), Christen- Democratisch Appèl (CDA) and ChristenUnie (CU) contained the statement that they wished to join the EPPO because it would increase the capacity to tackle organized financial crime in the EU. The condition was that it would not affect prerogatives of the Dutch prosecution service (VVD, CDA, D66 en CU, 2017). Out of the parties in the coalition D66 seemed the only strong supporter of this positioning, so this position seems to be a result of trading between the political parties (Personal correspondence - Geelhoed - 20- 06-2018). In response, other political parties were still wondering whether the EPPO was a proper way to tackle EU fraud.53 Further discussion focussed on alleged expansion of the EPPO’s competence to tackle terrorism with the new Government continuously referring to the need for unanimity of partakers under the regulation in the Council54 and consequences for OLAF and Eurojust.55 In March 2018, the Justice and Home Affairs Council noted that The Netherlands would maybe like to be included in the enhanced cooperation under the EPPO.56 In addition to these European discussions the Government had to consult the chambers of parliament again to make sure they had sufficient support to join the EPPO. At first had it had to convince the Tweede Kamer before moving on to the discussion with the Eerste Kamer (Personal correspondence - van Dooren - 21-06-2018). After consultation and show of support by both chambers of Parliament in May 2018 (Wolf, 2018), the Dutch Government notified the EC of its request to join the EPPO in May 2018 which officially confirmed the Dutch participation on the 1st of August.57

49 Tweede Kamer, 2016–2017, 33 709, nr. 12 50 Council press release 333/17, 08/06/2017 51 European Commission, Regulation (EU) 2017/1939, 12.10.2017 52 Tweede Kamer, 2016-2017, 33709, 13 53 Tweede Kamer, 2016–2017, debate European Summit 19th-20th of October 2017, nr 12, item 9. 54 Tweede Kamer, 2017–2018, 32 317, nr. 495 55 Tweede Kamer, 2017–2018, 32 317, nr. 505 & 510 56 Eerste Kamer, 2017–2018, 32 317, IT 57 OJ L 196, 2.08.2018, p.1

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5. Analysis The identification of decision-making procedures and distinguishing all involved actors, such as alternative societal and political actors, adds to the discussion to find an answer amongst integration dynamics (Bursens, Beyers, & Donas, 2014). These are European level representations (the EC and the Member States individually and collectively in the Council of Justice and Home Affairs), the Meijers Committee and the Dutch prosecution service and whose discussion often contributed to the shaping of the Netherlands issue frame throughout the discussion. The analysis connects case developments to scientific theory thereby allowing to answer the research question and clarify why the Netherlands shifted its position. Theoretical insights on both coordination efforts through European integration and framing are combined in order to construct an adequate answer. Insights through European integration theory form the leading theory in the analysis, sections on European and domestic framing aid in understanding the discussion dynamics of the case on the European Public Prosecutor’s Office (EPPO). When that proved to be an inadequate platform for clarification the Netherlands domestic discussions and dynamics were assessed. These dynamics are then weighed in the light of European integration theory and framing providing the results of this research. The combination of these dynamics provided a proper explanation to the shifting position of the Netherlands at the European level allowing to answer the reason behind the position change. 5.1. European level dynamics The first effort is to explain the changing position of the Netherlands using European integration insights. Yet, none of the integration theories seem adequate to fully explain the shifting position of the Netherlands in the case of the EPPO.

Supranationalism seems unsatisfactory to explain the position change, because of it barely pays attention to Member State reactions. The case shows an effort to attribute more competences to the European level to support Member States. One can expect to be able to find an explanation for the change in positioning in supranationalism (Sandholtz & Stone Sweet, 1998). Although a group of Member States indicated that they saw possible gains in further integration of prosecution in cases of EU fraud through a to-be-created center of authority, it took quite some time to find enough support through an enhanced cooperation. Also, not all Member States were in favour of reform or when they decided to be involved, they appeared to have done so for reasons other than pure support of the integration process. For instance, the Netherlands opposed the regulation for long and when it changed its position in 2018 it did so through agreement on domestic interest. Although dynamics of domestic interests are mentioned they are not elaborated upon sufficiently to aid this analysis. So far supranationalism has not shown us any useful insights. Can the position change be explained through the aspects of a spillover (Eilstrup- Sangiovanni, 2006; Nugent, 2017)?

The functional spillover supports the dynamic that Member States see further integration as a solution suited for best prosecution in case of EU fraud (Eilstrup-Sangiovanni, 2006; Niemann, 2006). However, the description shows that the Dutch prosecution service and a large group of domestic political parties still believe that the creation of the EPPO would mostly harm current efforts. Therefore, the functional spillover is not applicable here. The second possibility is that of the exogenous spillover. This would mean that the Member States act due to events that occur outside of the EU (Niemann, 2006). This is not the case, because the EPPO aims to prosecute those who are involved in financial fraud with EU budget which is mostly an internal development. A third possibility is the political spillover, where some actors aim and

Maarten van Hegelsom U1254014 manage to transfer competences to the EU level because it is in their best interest (Eilstrup-Sangiovanni, 2006; Niemann, 2006). As with the functional spillover, data shows both professional and political actors opposing the idea of an EPPO. Therefore, this political spillover cannot provide clarification of the position change.

The fourth aspect that might be at play is the social spillover which entails the focus of more social policy for social budgeting and investing in people development (Niemann, 2006). This is not the case either, because the focus of the EPPO is on further judicial cooperation to tackle financial crime. Therefore, this fourth aspect of the spillover concept cannot provide an explanation for the position change either. The fifth possible aspect at play might be the cultivated spillover in which the European institutions aim and manage to persuade Member States that further integration is best option (Eilstrup-Sangiovanni, 2006; Niemann, 2006). However, the distrust between the Dutch parliament and the EC fundamentally affected the Dutch parliamentary attitude towards the EPPO, which also cancels out the cultivated spillover as a tool to explain the change in positioning. The last possibility for the spillover concept to explain the change in positioning is the geographical spillover, based on which integration amongst other Member States can attract additional Member States to join the effort to limit the negative externalities. This seems to be the case here, as the Netherlands aims to limit these externalities for its national prosecution service. This is particularly surprising because such a spillover is traditionally seen in areas of economic integration and (van der Vleuten, 2012) much less so when affecting areas of judicial and police cooperation. Therefore, the spillover struggles to provide a full explanation of the case described previously. Indeed, after the enhanced cooperation effort received enough support. While the government thought it was in the best interest to join it still took the Netherlands two more years to formally join in the integration.

As much as supranationalism, also intergovernmentalism seems inadequate to fully explain all aspects involved in the changing position of the Netherlands in the case of EPPO. This look on European integration sees integration discussions as situations in which Member States can control in what policy area they wish to integrate and in what ways (Nugent, 2003). Moravcisk (1993) points to considerations of bargaining power and possible transactions costs around certain choices, already limiting Member State control. Lelieveldt and Princen (2015) even point to a focus on the government of Member states with little influence from additional political actors. However, when using the data provided in the description, it becomes clear that the government wanted to join the effort at the end of 2016 while the enhanced cooperation was only joined in 2018. The presence of national interests led to high level political discussions. This illustrates that the EPPO is a salient topic that attracts an increased level of attention therefore classifying the case as one of high politics (Nugent, 2017). The classification into the group of high politics explains why discussions took more than three years at the European level. While it shows increased effort by domestic actors on the topic it does not fully explain domestic dynamics that caused the Netherlands to take two additional years to join the enhanced cooperation under the EPPO.

The European integration theories scope provided some partial explanations through the management of possible transaction costs (Moravcsik, 1993). Another part of the explanation seems to lie in the qualification of high politics with the possibility of increased attention and action from domestic actors (Nugent, 2017). Although these insights of European integration provide partial explanations till the year of 2016 which a change of the governments’ position, they do not explain the Member State position change in 2018. Therefore, the next step of the analysis is to focus on the domestic dynamics to complement the explanation on the Netherlands change in position in both content and timing.

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5.2. Domestic dynamics As noted before, the Government is not the only actor involved in domestic decision making. Integration theory underlined that additional political actors, as parliamentary representatives, and professional actors, as the public prosecution service, helped to create the domestic circumstances that shape the nations preference (Lelieveldt & Princen, 2015). Bursens et al., (2014) claim that technical agencies are included more in policy discussions than ministry experts. Although this policy discussion does also show the influence of technical actors, initial debates were carried out by ministry experts in interministerial discussions. These circumstances show that competing frames and preferences have shaped the domestic discussion (Druckman, 2004) and the Netherlands’ positioning.

The description shows a constant competition between the governmental frame that wanted to keep an influence on the negotiations regarding the EPPO regulation and the frame of the chambers of parliament and the public prosecution service who wanted the government to actively oppose it. Although the chambers of parliament used many of their prerogatives in the policy discussion, such as the subsidiarity check, scrutiny reservation, a position paper, motions and by appointing rapporteurs, they did not manage to convince the Government to alter its frame. The Meijers Committee portrayed a third frame through which they demanded more focus on more procedural content of the regulation but played a no role in further definitive positioning. The clash between the first two frames became more apparent with the certainty that the EPPO would be created. The public prosecution service and the government took the pragmatic stance that it would be best to join the EPPO to limit the negative externalities for the Netherlands and maintain its strong position in future policy discussions. However, a majority of representatives in the Tweede Kamer maintained their frame, preventing the Netherlands from changing its position. This political oppositions’ frame seems to have been caused by upcoming elections 2017 and stronger ideological stances in national politics previously underlined by Nugent (2017) and Simons (2017).

This framing stalemate remained until October 2017 when it was broken by the formation of a new coalition government by the VDD, D66 and the CU, which had a majority in both chambers of parliament. They constructed a new focus (Druckman, 2004) on the creation of the EPPO. During intensive negotiations and trade-offs in the coalition agreement, these parties had aligned their ambitions (Kassim, 2003) and decided that it would be in the best interest of the Netherlands to join the enhanced cooperation under the EPPO regulation. In fact, one can say that they reset the competing issue frames of the previous government and a majority of parliament. The new coalition had created a new issue frame that was supported by a parliamentary majority. They altered the issue frame, logic and motivation (March & Olson, 1995) focusing on the fact that it offered a solution for a cross-border issue (Lelieveldt & Princen, 2015). This shows that domestic preference or positioning is substantially influenced by domestic interest (Moravcsik, 1993) through party politics and its ambitions referring to national political factors (Bursens, Beyers, & Donas, 2014; Nugent, 2017; Simons, 2017). The resistance in 2017 had stepped aside for coalition negotiations for a new government. 5.3. Positioning at the European level clarified The zoom on both European and national discussions through coordination and framing unveils a position change that followed a two-step process. The first step constituted the changed position by the public prosecution service and the government who altered their framing from a negative / awaiting focus to a pragmatic focus. As a party under the EPPO regulation the Netherlands would be able to play a role in determining further actions taken by the EPPO, including on prosecutional policy choices among others.

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One can see that this first step of the position change shows a forcing dynamic through bottom up pressure from a group of Member States through enhanced cooperation. This is odd, because the idea behind enhanced cooperation originates from a perception that voluntary cooperation by Member States allows them to move forward on desired policy changes without being slowed down by unwilling or unable Member States (European Commission, 2018). Therefore, the pressure dynamic shows the manifestation of one of the possible effects of enhanced cooperation described by Kubin (2017) which can be linked to the geographical spillover (van der Vleuten, 2012). The second step in the preference alteration resulted from domestic political developments. The results of national elections brought forward a new coalition with a majority of representatives in both chambers of parliament. The framing of this new coalition focused on the benefits of the creation of the EPPO eventually allowing the (newly formed) government to join the enhanced cooperation effort through the EPPO regulation. Therefore, the case demonstrates that national elections and party politics can add to the explanation of the timing of the position change.

As noted previously, the government and prosecution service agreed to join the effort to mitigate the negative consequences for the Netherlands and its prosecution service in this case and potential future decision making at the EU level. The data of this research shows that the dynamic at play here shows a position change in reaction to applied pressure by other actors. It shows horizontal pressure through a regulation supported by a group of Member States. Spillover aspects that were previously set by Haas and discussed by Rosamond (2005), Neimann (2006) and van Vleuten (2012) seem to provide adequate position for this dynamic. This is because enhanced cooperation puts endogenic economic and political pressure on the Member State, in this case the Netherlands, to join the efforts. It might otherwise be negatively affected as its interests and costs might not necessarily be considered by the participating Member States. Although this pressure dynamic has been identified before (van der Vleuten, 2012), critique contained that it was unable to clarify manifestations in cases of European integration around Member States sovereignty or developments in regions within the EU (van der Vleuten, 2012) like is the case here.

Therefore, it is best to alter the name of this spillover aspect from “geographic spillover” to “compelled spillover”. The “compelled spillover” explains the dynamic under which horizontal pressure from other institutions, like a group of Member States in enhanced cooperation, forces Member States to join an integration effort. Member State governments and parliaments eventually react to this pressure to limit the negative externalities they might otherwise experience. Where the geographical spillover addresses pressure from surrounding Member States, this is not always the case. As noted above: the compelled spillover refers to a situation in which a group of Member States, which are not necessarily close to the Member State under scrutiny, make an effort for further integration which puts pressure on that Member State. This name change enables authors to use this spillover aspect to explain this dynamic in cases considering issues either with Member State sovereignty or regional pressure from surrounding Member States.

A focus on both the European and the domestic dynamics allows one to understand the changing position of the Netherlands in the EPPO discussion. The Dutch final issue frame and position were shaped by developments at the European level influencing the domestic discussion. Therefore, the case shows the involvement of external (political) actions (Bulmer & Joseph, 2016; Rittberger & Wonka, 2011) which eventually led to an alteration of the Netherlands’ position after a further domestic political reaction (Nugent, 2003; Simons, 2017). The research demonstrates that it is best to alter one aspect to the spillover concept to increase the explanatory capacity of the spillover concept.

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6. Conclusion & discussion The results put forward in the analysis allow me to answer the main research question: Why has the Netherlands’ position towards the legislative proposal on the European Public Prosecutors Office evolved over time? The answer is twofold: through external pressure and domestic politics.

The previous chapters show that the certainty of further European integration and therefore the EPPO’s existence eventually forced the Netherlands to join the enhanced cooperation. The negotiations that took place in the Justice and Home Affairs Council fundamentally changed the initial proposal of the Commission for the regulation of the EPPO to get sufficient support for further integration. One of the biggest changes occurred in the governance structure which shifted from a supranational character to a more intergovernmental character. These amendments introduced in reply to Member State demands satisfied some Member States, but left others still opposing approval of the proposal. Yet, as the number of national governments in favour became sufficient, the differentiated integration method of enhanced cooperation was activated. This meant that a group of Member States would accept the EPPO and cooperate within its legal framework under enhanced cooperation, while others would not. The Netherlands was one of the latter. Member States that did not join the EPPO however would still be affected by it, potentially generating negative consequences. Therefore, following a cost-benefit assessment through economic and political insights, the Netherlands decided to join the effort under a situation that can best referred to as a compelled spillover as opposed to the geographical spillover that fails to address this specific situation. A dynamic in which integration puts endogenic economic and political pressure on Member States to join the efforts, because they risk suffering negative externalities.

Domestic policy dynamics mostly took place between the Dutch Parliament and the Government in which developments in European discussions and national politics are of essence. At first, the Government wanted to remain at the table and decide whether to join the EPPO when the text of the final regulation would be clear while a majority in both chambers of parliament opposed this positioning and wanted assurances that the EPPO would not be joined following the trend of growing Euroscepticism in the Netherlands. Later agreements and changes in the regulation at the EU level altered the stance of some actors, but initially a majority of the Tweede Kamer against the EPPO persisted. With the substantive professional opposition out of the way, political opposition prolonged the discussion further with a strong anti-EU sentiment. The outcome of the elections in 2017 gave birth to a coalition which agreed to join the EPPO altering the Netherlands’ positioning in EU discussions after parliamentary support in May 2018.

When looking at domestic efforts of coordination, one can see intense cooperation in and between public officials in The Hague and Brussels to put the Netherlands in the best position during the EPPO discussions. Any conflict between ministries was solved before preference was shared with the outside world (Simons, 2017). Furthermore, the case shows that a majority in both chamber of parliament is required to formally act at the European level. While the coordination from the government seemed to be adequate for this case, the Dutch preference or position was only altered after political approval of the parliament. This also shows the need for the parliament and the Government to adequately coordinate their policy ambitions to come to a shared goal (Kassim, 2003). The case highlights a strong role for parliament, which is in line with findings in previous research which shows that parliaments have started to become more important with EU integration having become more salient (Beyers, Dür, & Wonka, 2017). Results show that most actions taken at the domestic level were a result of European developments also bringing to light that party-political ambitions can be decisive in the formation of final positioning.

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Previous research provided several clarifications for shifting preference during policy discussion. In this case, it is clear that external factors, namely the European level agreement on integration at the European level through the EPPO, caused the initial dynamic that forced the Netherlands government to take action and alter its preference. However, later representative support through the coalition of the VVD, CDA, D66 and CU was still required (Bulmer & Joseph, 2016). When introducing new regulation or legislation, it seems of essence that one has to find sufficient support in the Member State parliaments to engage in European cooperation (Nugent, 2003; Simons, 2017). The government can try to align policy ambitions (Kassim, 2003) by finding a shared framing on the issue (Druckman, 2004) with the aligned motivation to act (Lelieveldt & Princen, 2015). One possible way to achieve this, is by including parliaments earlier in consultation periods when developing the draft for the first concept of proposals, which was not done in this case. Furthermore, the case shows that the timing of introduction of a regulation also seems to matter in policy discussion. It seems that representatives are not willing to alter their position when important events as elections are coming up.

The analysis uncovers an improved aspect of a spillover, besides the functional, political, cultivated (Eilstrup-Sangiovanni, 2006), social, exogenous (Niemann, 2006) and geographical spillover (van der Vleuten, 2012). The compelled spillover should replace the geographical spillover to improve the explanatory capacity of the spillover concept in scientific literature. This compelled spillover shows a dynamic in which a Member State is put under horizontal pressure through enhanced cooperation by a group of Member States to join further European integration to limit negative externalities. Its more general character allows for the inclusion of cases that affect Member State sovereignty and contain regional pressure. However, further research is required to validate and confirm its finding to embed this concept in scientific literature.

This research also has its limitations. First, this research mostly focused on the accounts of public officials who support the Government and on members of the registry of parliament and supporting officials for committees of chambers of parliament and only limited access to EU officials was available. Furthermore, only one of the rapporteurs is included. This approach was chosen to prevent to get caught in a political niches while missing out on some further experiences on other sides of the political spectrum. Another possibility would be to focus on positioning by domestic political parties to provide more detailed insights in national playing field. Second, the focus lays on one case in one policy area, the Area of Freedom, Security and Justice. Research on another case in the same or a different policy area can provide substantiation for further generalisation of the conclusions of the research. However, when doing this one has to bear in mind that this policy area is particularly sensitive in terms of acceptation by Member States of projects that might affect their national prerogative. Third, the focus was on one of the EU Member States, the Netherlands. Although this show a limitation of the research, it can be complemented by selecting Member States with a similar political system like Sweden or a totally different political system like the United Kingdom. Both can provide additional insights in Member State positioning during policy integration efforts. Furthermore, European level discussions can also be assessed further to understand the reasoning and issue framing amongst EU institutions or Member State coalitions eventually allowing further identification of important factors in the policy discussions. These limitations provide an incentive for future research to improve our understanding on integration decision-making regarding EU policy.

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This research helps EU institutions and other parties to understand Member State positioning in EU integration discussions, with Member States not willing to cooperate on European level while national solutions seemed inadequate from an EU perspective (de Gruyter, 2018; Peters, 2018). It provides an insight on what actions to undertake and who to approach in integration discussions. This increases understanding and provides starting points to improve coordination efforts eventually allowing the creation of bespoke procedures and agreements for improved cooperation and integration (European Commission, 2017; European Commission, n.d., 2). This research also provides insights for possible measures to improve policy discussions in this policy area. One of these would include to provide improved capacity to the Dutch public prosecutor’s office to participate in the discussion. This could be done by adding guiding questions on certain articles or paragraphs of proposals to guide domestic authorities, in this case the public prosecution service, when they are asked to comment allowing them to develop their position. It might have been a deliberate method for the regulation to remain under the radar, but another way to improve the regulation discussion is to include the chambers of parliament in the earlier informal discussion or consultation periods of the EC prior to the preparation of a legislative proposal. That way discussions will include (national and regional) Member State representatives and other politicians, citizens and experts in earlier stages. This might facilitate the further policy or regulation discussion. The Task Force on Subsidiarity, Proportionality and “Doing Less More Efficiently” has also referred to the necessity to extend the role of Member State politicians among other insights and included them in their final report in July 2018 (European Union, 2018, 2). Unfortunately, the policy discussions on the European Border and Coast Guard Agency (FRONTEX) and the related proposals of the EC seem to suffer of the same mistakes made in the case of the EPPO.

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Appendix 1: Overview formal coordination of EU affairs by the Dutch Government (Dutch Ministry of Foreign Affairs, 2011; van Keulen, 2012)

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Appendix 2: the EPPO structure in the final regulation (European Commission, 2017, 3)

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Appendix 3: Questions during semi-structured interviews 1. Can you introduce yourself (current occupation, activities, role in processes)?

2. How did the EPPO appear on the Dutch agenda?

3. I found this procedure online or in literature (appendix 1), is this in line with the path that was followed for the development of the agencies (adapt depending on national or European level)? Does this comply with the way the Dutch position was formed?

a. Are there any actors that I’m missing (like experts or political parties)?

b. Are there any tensions that are not shown in this diagram?

4. How do you see the development of the competences of EPPO (start to now)?

a. What about the current content that has been accepted by a large group of Member States including the Netherlands.

5. How do you influence the decisions being made when working on EU policy?

a. What motives do you use to support your arguments?

6. Why has the Netherlands declined cooperation through EPPO at first while it joined in May 2018?

a. Distil reasons changes in government, other angles of view or other power relations.

7. Who I should talk to, to get an overall picture of the preferences and how the process of decision making went through before the government took a certain position?

8. How can I refer to you in the master thesis?

Appendix 4: Respondent list Respondents # Date Name Organisation 1 31-05-2018 Anonymous Public official of the Ministry of Justice & Security 2 1-06-2018 Frank Mittendorff Member registry Tweede Kamer 3 19-06-2018 Frank Franssen Public official of the Ministry of Justice & Security 4 20-06-2018 Pim Geelhoed Meijers Committee 5 21-06-2018 Kim van Dooren Member registry Eerste Kamer 6 25-06-2018 Leendert Erkelens Former member Asser Institute 7 26-06-2018 Monique Corten Public Prosecution service 8 29-06-2018 Anonymous Public official of the Ministry of Foreign Affairs 9 05-07-2018 Anonymous Public official of the Ministry of Justice and Security 10 13-07-2018 Ben Smulders Public official of the European Commission 11 18-07-2018 Jeroen Recourt Former member Tweede Kamer 12 18-07-2018 Anonymous Supporting staff Tweede Kamer 13 24-07-2018 Han Moraal Dutch member of Eurojust

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