The initial response from the EU Commission to Dutch asylum and migration minister Marjolein Faber’s letter requesting an opt-out from the bloc’s asylum rules was less than encouraging, according to media in the Netherlands.
Broadcast company NOS reports that the Commission acknowledged receiving the letter, and said Faber’s letter made it clear the Dutch government was aware their request would require a treaty change. Such a change, the spokesman said, is not on the table right now, and therefore, the EU asylum rules will continue to apply to the Netherlands. “Faber files opt-out request with EU; European Commission sends request straight to trash,” news outlet NieuwRechts summarized in a headline.
However, the Commission welcomes the Dutch commitment to implementing the Asylum and Migration Pact, which, among other things, includes agreements on screening migrants at the external borders of Europe and prompt asylum decisions.
Opting out of the EU’s asylum policies was at the top of the agenda when the new Dutch coalition government took over in July. Already back then, the EU Commission reminded the Netherlands in a strongly worded statement that “Once adopted, EU law is binding on all concerned member states and, following its entry into force, applicable according to the specific provisions contained in each legal act.”
Elise Muir, head of the Institute for European Law at KU Leuven, told Euronews that “the answer is simple: a member state cannot opt out from EU legislation after it has been adopted. The point of EU membership is that one commits to abiding by its laws.”
Countries that have previously negotiated opt-outs from EU treaties did this either at the time of accession or when treaties were being revised.
In 1993, after voters rejected the 1992 Maastricht treaty, Denmark received approval for opting out of four EU cooperative agreements, including the monetary union, the Area of Freedom, Security and Justice (AFSJ)—which includes migration—and the Common Security and Defense Policy (CSDP). Danish voters in a 2022 referendum supported dropping the opt-out of the CSDP after Russia invaded Ukraine.
Ireland sought similar concessions and has an opt-in or opt-out clause on individual proposals in the ASFJ through the Lisbon Treaty.
For the Netherlands and Hungary, which also has announced their intention to request an opt-out, convincing all 27 member states to revise existing treaties may sound like an uphill battle. But the issue of mass migration, and its impact on European citizens and countries, is not going away. In comments to a Welt article on Hungary joining the Netherlands in opting out of EU asylum rules, Germans posted comments that both explain the rise of the anti-globalist, anti-immigration Alternative für Deutschland party and show how far establishment politicians are from public sentiments. Comments gathered by Hungarian Mandiner included:
- “The decision is completely understandable on the part of both countries. … Mass illegal immigration, which is also predominantly Muslim, is no longer a ‘problem’ in many EU countries, but an existential issue, not only in terms of social systems, but also in terms of social peace, free coexistence, and individual self-determination”
- “Germany is ultimately to blame for the downfall of the EU. By launching unlimited mass immigration in 2015, Mrs. Merkel’s CDU brought about the end of the EU.”
- “What exactly makes Orbán’s right-wing populist politics? I see here a real top politician who simply represents conservative values, the values that the CDU/CSU set on its banner a hundred years ago.”
With the German ‘traffic light coalition’ recently implementing border checks at all land borders and even a Macron-supporting French mayor suggesting his country do the same, the debate on how to stop extra-European migration is far from over.