Disagreement Over Reform
EU-related reforms in the Dutch parliament have always been passed consensually. Nevertheless, disagreements have existed. First and foremost, dissatisfaction with agreed-upon reforms has consistently been expressed by the parties with the staunchest intergovernmental constitutional preferences on the left and right of the political space. They have demanded more far-reaching oversight institutions, not least because of their vocal scepticism of the legitimating potential of the EP. More surprisingly, the Dutch government has long had a cautious approach to EU-related parliamentary rights. While in favour in principle, it has advocated restraint and explicitly opposed the introduction of the scrutiny reserve procedure in 2009 despite the fact that the parties represented in government voted in favour of the reserve (in fact, a governing party co-sponsored it). As we will see in the following, the government's stance does not reflect party politics but rather its institutionally driven preferences for preserving executive autonomy and capacity. Finally, in 2009 disagreements among the main parties appeared over the future of the Dutch parliament's 'approval rights'. Should they be abolished, expanded, or maintained?
It is not surprising, albeit still consistent with the theoretical argument, that the Dutch parties with intergovernmental views of the EU have consistently expressed dissatisfaction about the limits of the national parliament's EU-related competences. A large number of illustrative statements can be found in the Nice ratification debates (e.g. TK26-1874-1976), the debates on the 2000 State of the Union report (TK10-682, 702), the 2000 Future of the EU report (TK14-777, 780-81), and the Amsterdam ratification debates (TK19-1157, 1174-75), for example. In the debate of the ratification of the Lisbon Treaty, the SP, for instance, maintained:
Another common argument is that the abolishment of national vetos [through the introduction of majority voting] is less problematic if the European Parliament takes over the parliamentary task. In this I do not see an equivalent replacement. The European Parliament does still not function as a fully fledged parliament.
The PVV has been the most vocal advocate of national parliamentary rights as part of its broader opposition to the transfer of national competences to the EU. In the context of the adoption of the Lisbon Treaty, it advocated returning the EP's competences to national parliaments (TK91-6486). The PVV described the proposed scrutiny reserve and rights in justice and home affairs (see the section entitled 'The Dutch Parliament's "Approval Rights" in Justice and Home Affairs') as 'fig leaves of the factions of the CDA, PvDA, CU and above all the VVD' (TK92-6552).
More surprisingly than the partisan opposition discussed so far is the stance of the Dutch government. The government has long held a cautious view on parliamentary rights. Its arguments have remained consistent over time, despite alterations among the cabinet parties. Considering these arguments in more detail, it becomes clear, however, that they do not reflect partisan strategy but rather the institutionally motivated priorities of 'the executive'. The government has put emphasis on preserving the executive's capacity to act freely in EU policy-making arenas.
In making this argument, it is important to understand that the government has long held generally favourable attitudes towards parliamentary involvement in EU affairs, but opposes precisely those reforms that it perceives to constrain its capacity to act at the European level. In 1986, it reacted to the initial creation of a temporary European Affairs committee:
The government has noted with interest the intention of the parliament to create a standing European Affairs committee in order improve the coordination of its interest in European affairs. The government welcomes this active interest for European affairs that are so important for our country. (19336-6, p. 1)
In 1996, state secretary for foreign affairs Patijn pointed out at a plenary session:
The role of national parliaments is considered important by a number of member states, including the Netherlands, precisely because of the legitimacy principle. We cannot exclusively rely on the formal position of the European Parliament. In order to secure broad political legitimacy in Europe for the further development of European integration and the political development, we should keep national parliaments closely concerned. (TK39-3249-3250)
The same person stressed in 1997:
It is of great importance that national parliaments receive information on the legislative process in the right moment and in the right language and that they can exchange views with the government before and afterwards. (25181-4, p. 2)
The government also generally shares the parliament's view that deficits in the EP's authority create democratic deficits. In a 2000 report (27407-1, p. 14) on the State of the Union, the government states:
With the deepening of integration, the European Union has moved increasingly into core national policy competences. The influence of Brussels on daily life is greater than ever. Consequently, the question of the legitimacy of the conduct of the institutions becomes still more urgent.
In the short term, the improvement of legitimacy begins with increasing the democratic quality and transparency of European decision-making. In the IGC, the government aims for the extension of the co-decision procedure, in which the European Parliament—next to the Council—has complete co-decision rights, to, in principle, all areas with qualified majority voting. (p. 21)
In reaction to a parliamentary question how the government envisages the democratic legitimacy of decisions by majority voting without co-decision:
The number of terrains in which the Council decides with qualified majority without a role for the EP is limited. The democratic control of the European Parliament extends over the majority of the Union's policy areas. A second way by which the democratic embedding of Union policy is being realized is the role national parliaments play. The conduct of the member states in the Council is subject to continuous control by national parliaments. This contributes to the democratic foundations of the policy the Union produces. (27818-5, p. 20)
Already in 1996, the government linked the parliament's role to deficits in the EP's powers:
Here it can be objected that the European Union has its own, directly elected parliamentary institution that, especially in the first pillar, is involved in most of rule-making of the EU. It is reasonable that national parliaments realize their role where they regard the competences of the EP as not yet sufficient. Even then, national parliaments can also make their own contribution to the democratic legitimacy of the preparation of European legislation. (25181-2, p. 3)
There is a general agreement between parliament and government over the desirability of national parliamentary involvement in EU policy-making. And the reason seems to be a shared understanding that this would alleviate the EU's democratic deficit.
Yet, government members have also consistently urged caution regarding reforms that they perceived to limit their ability to act freely at the European level. In the discussion about whether the parliament should introduce a scrutiny reserve procedure in response to the Lisbon Treaty, Prime Minister Balkenende held that existing instruments sufficiently secure parliamentary involvement and offered to consider ways to optimize how they work. However, regarding the idea of a scrutiny reserve he took a sceptical stance:
If a scrutiny reserve means that the government actually has no competence to act anymore, it is a step too far. Then we could not go further with certain matters in the appropriate moment. That, honestly, is a risk we could run into in the European context.
It [the scrutiny reserve] is also not a necessary instrument. If we want to involve the chamber in legislative processes in a timely manner, existing instruments should be optimized. The parliament makes use of them. However, if a government actually cannot do anything anymore because of certain blockades, then it is a different story. With this I have very great difficulties. (TK91, 6494)
Similar objections can be traced throughout the 1980s and 1990s. Already in the mid-1980s, the government noted:
Regarding the transmission of documents, it has to be highlighted that the Council members are not free. On the grounds of the Rules of Procedure of the Council of Ministers, the negotiations are confidential and this extends to the working documents under discussion. The problem of confidentially is particularly relevant if these documents contain information on the positions of individual member states, which is often the case. (19336-6, p. 1-2)
In a 1996 report on parliament and the EU:
On parliamentary request the government provides the demanded additional information. Where this information is usually relevant for ongoing negotiations, it should be relevant in the transmission to avoid that other member state obtain insight in the details of the Dutch negotiation position, such as the 'bottom line' and fallback positions, and to avoid that the negotiation positions of other member states become known, if the member states have not themselves provided information that is accessible for third parties. Practice has, however, shown that these complications are being taken into account. (25181-2, p. 11)
In 1999, the government responded favourably to a parliamentary request for more information (26054-1&2) but made qualifications:
Regarding the positions of other member states, the government has to take into account the confidentiality of negotiations in the Council and considerations regarding negotiation tactic. This can cause restraint in the transmission of positions of member states and the Dutch stakes. The government points out that the administrative input of a member state in the Council machinery (working groups, Coreper) is not always the same as the political standpoint of a member state in the Council. (26054-3, p. 3)
The government's stance towards parliamentary rights in EU affairs has been consistent over time. It derives from a position it explicitly stated and justified in a 1996 report on the Dutch parliament and the EU. In this report, it acknowledged the important contribution of national parliaments to the EU's democratic legitimacy. However, it stressed its own institutional interests in its freedom and capacity to act at the European negotiations. The Dutch government summed up its view as follows:
The question that repeatedly comes up regarding European decision-making and on which this note attempts to provide an answer is: how can the Dutch parliament be given the opportunity to exercise its control and legislative tasks optimally without compromising the flexibility and effectiveness the government needs to participate effectively in EU negotiations? (25181-2, p. 2)
-  The party composition of the government changed in 1986, 1989, 1994, and 2002. However,there is no complete turnover of all the cabinet parties at any of these dates.