The Dutch Parliament's 'Approval Rights' in Justice and Home Affairs
Until the new scrutiny reserve procedure entered into force with the ratification of the Lisbon Treaty, the Dutch parliament's rights in EU policy-making had focused on information supply. The approval rights were the only exception and required the government to obtain parliamentary consent before agreeing to EU legislation in the areas of justice and home affairs. Yet, while Lisbon brought the scrutiny reserve procedure, the approval rights were, in turn, nearly abolished except for selected issue-areas in which they still apply. This result emerged against the background of disagreement in the parliament with some parties seeking to maintain or expand the application of approval rights, while others favoured their complete abolishment. The eventual outcome and the arguments different parties advanced underline the key assumptions and claims of an explanation based on constitutional preferences.
The parliament's approval rights were created together with the ratification of the Maastricht Treaty. As state secretary Timmermans (TK91-6509) reiterated in the debate over the future of these rights after Lisbon, the rights were created in the early 1990s because of the exclusively intergovernmental nature of the newly introduced justice and home affairs area in the EU treaties.
On the basis of the fact that the area was intergovernmental and European decisions would be taken, the Tweede and Eerste Kamer said that a problem would arise if the EP lacks co-decision rights in intergovernmental decision-making. If we do not address this in the Dutch parliament, and the Dutch parliament ultimately determines what the cabinet can do, then a democratic gap emerges, a democratic deficit. That is why they introduced the amendment. It was about closing a democratic deficit.
Relying on this same logic, the main parliamentary parties from government and opposition resisted the government's intention to abolish the approval rights with the Amsterdam Treaty by passing an amendment to the ratification law of the Amsterdam Treaty (25922-9). Responding to government scepticism of the approval rights (e.g. TK19-1192), they called into question the argument that the formal transfer of substantial parts of justice and home affairs to the community pillar would warrant giving up the approval rights. In their co-sponsored amendment, the parties highlighted that in these areas 'there is, however, in any case not for the first five years, a provision for giving full competences to the EP by means of the co-decision procedure' (25922-9). CDA deputy Van den Akker argued (TK19-1146-1147) that 'the inclusion of visa, asylum, and migration, and the incorporation of the Schengen acquis into the first pillar threatens to create a democratic deficit' (TK19-1146-1147). GL member Karimi welcomed the transfer of visa, asylum, and migration to the first pillar of the EU treaty but highlights that 'for five years, there is no co-decision by the European Parliament. Here, we adopt an emergency fix at the national level in the form of the approval rights. After five years, it is an open question whether co-decision will be introduced' (TK19-1160). Speaking for the PvdA, at the time the largest governing party, van Oven challenges government arguments against maintaining approval rights in a similar way (TK19-1168):
The PvdA-group has supported the amendment of Mr Van den Akker to maintain the approval rights. The government did not want this... The fact alone that Title IIIA [on visa, asylum, and migration] will be communitaurized is insufficient for moving away from this [practice of approval rights] for as long as intergovernmental decision-making remains a fact and the EP does not have strong influence.
At the time of the Lisbon Treaty, the government again put forward a ratification law that would not have entailed a continuation of the parliament's approval rights in justice and home affairs. Cabinet members present in the debate expressed scepticism of the approval rights in terms of their effect on the executive's capacity to act (e.g. TK91-6492, 6494). The government also underlined that the Lisbon Treaty would introduce co-decision to almost all justice and home affairs policies and, therefore, remove the basis for approval rights (TK91-6509-6510):
She [GL deputy Peters] says that we simply take away the parliament's competences in the justice and home affairs area. No, it is the logic of the treaty that, as of the moment that the intergovernmental becomes communitaurized, the community method is also respected.. .Where from now on majority applies, approval rights are no longer necessary, since we also give full powers to the European Parliament in these areas. This has always been the logic, also of the amendments of Van Traa, De Hoop Scheffer, and others in the history of the treatment of the treaties.
The positions of the parliamentary parties on the fate of the approval rights varied. Several, including the VVD, GL, and D66, sought to maintain them in all areas of justice and home affairs and even considered extending them to all EU decision-making (e.g. TK91-6455, 6483). The governing CDA, PvdA, and CU, who had also been less supportive than other parties of the scrutiny reserve, largely agreed with their fellow party members in cabinet on the lack of a basis for approval rights. According to the PvDA, the democratic deficits that warranted the approval rights would cease to exist with Lisbon (TK91-6488). However, both the CU and the CDA qualified their stances, pointing out that selected areas of justice and home affairs, such as police cooperation in criminal matters, would remain subject to intergovernmental decision-making. In these areas, they proposed to deviate from the government's ratification law (TK91-6470; for the CU position, see TK91-6459; for the amendment mentioned below, see 31384-11):
The CDA-group is of the opinion that the parliamentary approval rights can be abolished in the areas in which the European Parliament has obtained co-decision rights. This does not apply to rules in the area of passports, residence permits and equivalent documents, in the area of measures in which member states could get into an emergency situation as a result of a sudden influx of nationals of third countries, in measures with cross-border implications for family law and policy cooperation. The CDA-group, together with my colleague Blom, has put forward an amendment on this point.
The eventual outcome is best interpreted as a compromise among the parties. We cannot observe the informal negotiations that may have taken place. However, in the final results, the main governing parties, the CDA and PvDA, agreed to the aforementioned scrutiny reserve procedure, in line with demands from the VVD and other opposition parties. All parties agreed to maintain approval rights in the areas the CDA had proposed, but not to extend them beyond these areas. The government had been sceptical of both solutions, similar to the PvDA parliamentary group. The CDA had at least not explicitly favoured the scrutiny reserve. The small governing CU party was favourable towards both outcomes. The main opposition party, the VVD, and the more intergovernmental camp had put forward the scrutiny reserve idea and sought broader approval rights. Overall, all parties had to make concessions for a consensual solution to be reached (for the relevant final votes, see TK92-6619).