University of Groningen The incoming tide Hollander, Jieskje IMPORTANT NOTE: You are advised to consult the publisher's version (publisher's PDF) if you wish to cite from it. Please check the document version below. Document Version Publisher's PDF, also known as Version of record Publication date: 2013 Link to publication in University of Groningen/UMCG research database Citation for published version (APA): Hollander, J. (2013). The incoming tide: Dutch reactions to the constitutionalisation of Europe. Groningen: s.n. Copyright Other than for strictly personal use, it is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), unless the work is under an open content license (like Creative Commons). Take-down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Downloaded from the University of Groningen/UMCG research database (Pure): http://www.rug.nl/research/portal. For technical reasons the number of authors shown on this cover page is limited to 10 maximum. Download date: 12-11-2019 The Incoming Tide A commercial edition of this thesis will be published in summer 2013. Title: ‘Constitutionalising Europe. Dutch Reactions to an Incoming Tide.’ isbn: 978 90 8952 139 2 Publisher: Europa Law Publishing Copyright © Jieskje Hollander, 2013 Design Joost Dekker i.s.m. de ontwerpvloot Printed by Proefschriftmaken.nl | Uitgeverij BOXPress Published by Uitgeverij BOXPress, ’s-Hertogenbosch This work is part of the research programme Contested Constitutions, which is financed by the Netherlands Organisation for Scientific Research (nwo). The title of this work refers to the image evoked by Lord Denning mr in hp Bulmer ltd. v. J. Bollinger sa et al: ‘But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back.’ [1974] Ch. 401 at 418, [1974] cmlr 91 at 111. The Incoming Tide Dutch Reactions to the Constitutionalisation of Europe 1948 – 2005 PhD Thesis University of Groningen rijksuniversiteit groningen The Incoming Tide Dutch Reactions to the Constitutionalisation of Europe Proefschrift ter verkrijging van het doctoraat in de Rechtsgeleerdheid aan de Rijksuniversiteit Groningen op gezag van de Rector Magnificus, dr. E. Sterken, in het openbaar te verdedigen op donderdag 4 juli 2013 om 12.45 uur door Jieskje Hollander geboren op 30 december 1983 te Franeker Promotor: Prof. dr. L.W. Gormley Copromotores: Dr. P.A.J. van den Berg Dr. R.G.P. Peters Beoordelingscommissie: Prof. mr. L.J. Brinkhorst Prof. dr. G.T. Davies Prof. dr. J. van der Harst ‘Democracy cannot be imposed on any nation […] Each society must search for its own path, and no path is perfect. Each country will pursue a path rooted in the culture of its people […].’ Barack Obama1 Contents Introduction 13 1 The Land of Grotius (1948-1953) 25 1.1 Introduction 25 1.2 The Notion of European Integration Taking Root in the Netherlands 29 1.3 Political Positioning: the Van der Goes van Naters/Serrarens Motion (1948) 34 1.4 The First Feat: Approving the ecsc (1952) 41 1.5 The Floodgate Flung Wide Open: Constitutional Reform (1953) 49 2 Confirming the Course (1953-1957) 77 2.1 Introduction 77 2.2 Defining the Scope of Article 63: Debating the edc (1953) 79 2.3 Submission to Progressive Integration: the Treaties of Rome (1957) 91 3 Supranationalisation for Self-Preservation (1957-1979) 117 3.1 Introduction 117 3.2 An Instrumental Merger? (1966) 125 3.3 High Expectations of the uk Accession (1972) 131 3.4 Pursuing a Strong and Directly Elected ep (1977) 150 4 First Cracks in the Consensus (1979-1986) 167 4.1 Introduction 167 4.2 Dealing with Aliens: Expanding the eec to Southern Europe 173 4.3 Silently Passing another Watershed: Adopting the sea (1986) 193 5 Spring Tide Stress (1986-1997) 207 5.1 Introduction 207 5.2 Implications of a Borderless Political Identity: Schengen i and ii 211 5.3 More Cracks Appear: the Treaty of Maastricht (1992) 231 5.4 Stuck between Widening and Deepening: New Accessions (1995) 259 5.5 Concerns Growing Ever Deeper: The Treaty of Amsterdam (1997) 263 6 Stemming the Tide (1997-2005) 275 6.1 Introduction 275 6.2 Postponing Hard Questions: adopting the Treaty of Nice (2001) 278 6.3 Sailing a New Voyage by an Old Compass: the European Convention (2003) 288 6.4 A Harsh Reality: Towards 1 June 2005… 310 6.5 …and Beyond 320 Conclusion 325 Acknowledgements 339 Abbreviations of Dutch political parties explained 342 Successive Dutch cabinets (1948-now) 343 Interviewees 344 Correspondences 346 References 347 Endnotes 359 English summary 410 Nederlandse samenvatting 412 About the author 416 12 Introduction The relationship between the Netherlands and the European integration process is under pressure. In the past few years, the Netherlands more than once adopted an obstructionist attitude on the European stage. In the negotiations leading up to the Treaty of Lisbon the country stood firm in its demand to drop all symbolic references to a future statelike character of the European Union, i.e. the label of a constitution, the flag, and the anthem. Afterwards the Dutch government became notorious for its insistence on stricter admission criteria for candidate Member States, its prolonged resistance against Serbian accession to the eu, and later for its initial inflexible attitude in the Greek debt crisis. Moreover, current political debates in the Netherlands on immigration and asylum issues –think of the discussion about the initiative of Geert Wilders’ Partij van de Vrijheid (pvv) to set up a website where trouble caused in Dutch cities by workers from Middle and Eastern Europe can be reported – have led to criticism from European institutions about the Dutch observance of the European Convention on Human Rights and of Dutch loyal cooperation with Europe in general.2 These recent examples of friction between the Netherlands and the eu have, both at home and abroad, been regarded as deviations from an old trend. From the early start of the process of European integration soon after World War ii, the Netherlands got known as one of its most loyal supporters. Having started out as one of the six ‘Founding Fathers’ of the European Coal and Steel Community (1952), the country earned the reputation among its partners – and for a long time prided itself on it as well – for assuming a constructive role in the negotiations on the consecutive European treaties that brought the integration process further. ‘[In European negotiations],’ as a key-player in the field of European integration on behalf of the Dutch Ministry of Finance phrased it, ‘the Netherlands was pre-eminently aiming at trying to get results. […] There had to be a result. It would be pleasant if we also thought it to be a beautiful result, but there had to be a result.’3 The referendum on the Treaty Establishing a Constitution for Europe (hereafter: the European Constitution) held on 1 June 2005, marked a dramatic turning point in the driving force of the Netherlands 13 in matters of European integration. After almost six decennia of progressive European integration in which the concept of a European economic, legal and political community had found its way into the constitutional core of the Netherlands, the Dutch people indicated in unmistakable terms that a limit had been overstepped here: a 61,6% majority of the voters rejected the treaty that the Dutch government had signed as a matter of course and that had been initially welcomed by a great majority in the Dutch parliament. A shock went through Europe. How was it possible that the Netherlands, previously best in the European class, had voted against this next step in the integration process? Bearing in mind the Dutch ratification of the Treaties of Rome (1957), the Treaty of Maastricht (1992) and agreement on the declaration of Laeken on the Future of Europe (2001), Dutch support for the constitutionalisation of Europe had seemed self-evident.4 In the referendum on the European Constitution, however, the people of the Netherlands put an end to that expectation. A shock also went through the Hague; the residence of the Dutch political elite. Here the verdict revealed, first and foremost, a breach of confidence between the political elite of the Netherlands and the people this elite was supposed to represent. In order to bridge the gap and to avert a crisis of political legitimacy, in a plenary debate in parliament on 2 June – the day following the referendum – all political parties that had initially expressed their enthusiasm about the Constitutional Treaty, retraced their steps. Following the voice of the people, the Treaty was rejected in parliament. This apparent quick fix, however, could not prevent years of discomfort to follow. The post-2005 quarrels between Europe and the Netherlands show that the familiar relationship has been disturbed. And also on the national level, repair of the damage turns out not to be easy. In its attempts to make up for the event of 1 June 2005, the governmental elite has taken a more critical attitude towards the process of European integration, but, in doing this, has also passed over the core of the matter. Swayed by the political issues and dynamics of day to day politics, the fundamental question of how the gap in the field of European integration between the Dutch electorate and its political representatives had come into existence, is left out of consideration. What had happened in the almost sixty years of apparent Dutch consensus on the progress of European integration? Although immediately after the referendum various analyses on the causes of the result of the referendum were published, the historical perspective is still lacking.