The Dutch last-minute criticism of Romanian and Bulgarian access to its labour market shows how it still pays off for a national government to attack a European decision that it voted for, even long after the decision was taken and when it is clear that it cannot be reversed.

By Maarten Hillebrandt

The Dutch debate on immigration is back with a vengeance again. The reason is that the previously imposed limitations on the right of Romanian and Bulgarian citizens to settle and work freely within the EU area have been revoked per 1 January 2014. The Netherlands is tired of the flows of immigrants, de Telegraaf reported recently. The Netherlands’ most widely read daily relied on a recent poll which indicates that as much as 80% of Dutch nationals oppose the full opening of Dutch borders for other European citizens. Tellingly, this percentages does not go below 50% with voters of any of the political parties, including the generally strongly pro-European, centrist Democratic Party (53%).

Last autumn, the ruling Labour Party reopened the debate. Lodewijk Asscher, the vice prime minister in charge of migration policy, sounded the alarm bell. In an op-ed in The Independent co-authored with the British publicist David Goodheart, he called for “code orange”, a term that in the Dutch language has connotations with the fight against rising water. Asscher warned: in some places, the dykes are about to burst. A clear message, but shouldn’t he first and foremost be delivering it to his European colleagues? This happened nearly four months later, when Asscher explained his statements in the Council on the 9th of December. A welcome gesture, but overwhelmingly late, considering the borders were planned to open only three weeks later.

Apparently, the Netherlands has come to be gripped by a collective sense of impotence. The story is that we have again been tricked by “Brussels” – a story that politicians are happy to confirm. Asscher, too, seems to adopt this attitude by criticizing the move to open Dutch labour market to these (not so) new European citizens.

The Dutch response prompts the question of where the decision to allow Romanians and Bulgarians into the Netherlands was taken. The answer lies in the accession treaty that the two countries concluded with the EU in 2005. At that time, eight Member States, among them the Netherlands, agreed to grant Romania and Bulgaria EU membership on the condition that their citizens would only attain the right to move freely at the latest five years later. That deadline ended on the 31st of December. The Netherlands were there, and they signed up to it.

Of course one could argue against this that Mr. Asscher was not yet a member of the government in 2005. At that time, he was therefore not in a position to protect the Dutch dykes against the rising tide. The evidence however suggests the contrary. Last summer, the European Parliament and the Council (including Mr. Asscher) revised the Schengen border code. In the revised document, they argued that: “The free movement of people within the Schengen area has been one of the biggest achievements of European integration. Freedom of movement is a fundamental right”. The revised EU legislation, which firmly upholds this right, was accepted without countervotes. Where was the critical sound of Asscher and his colleagues when that decision was taken?

The Dutch resistance to the acceptance of Romanians and Bulgarians onto the Dutch labour market therefore does not only come much too late, it is also irreconcilable with the fundamental agreements that the Netherlands has committed to in the EU context.

Apparently a large majority of the Dutch population still shudders at the thought of opening up the borders, while it was already known in 2005 that this was going to happen. Politicians in their turn exhaust themselves in criticizing the Romanians’ and Bulgarians’ right to settle and live in any EU country, even when they know all to well that this forms a fundamental aspect of European citizenship.

But there is more to it. After all, we were there ourselves (Asscher included) when the decisions were taken and voted along every time. Apart from the question whether it is a good idea to grant Romanians and Bulgarians the right to settle and work freely (though it must be repeated: it was promised to them in 2005 and forms an inalienable part of Union citizenship), the problem lies in the lack of credibility of the Dutch government.

It is a known phenomenon: national politicians artfully use the EU’s fairly non-transparent decision-making process for their own purposes. Ministers in the Council often come to decisions behind closed doors and on the basis of consensus. In this way, not only the decision making process, but also its outcome remains ambiguous: after all, everybody and nobody at once appears to be responsible for the decision. In practice, consensual voting thus allows ministers to formally provide their support, but informally criticise one and the same decision. It gives ministers the opportunity to shift the blame for decisions on “Europe”, a phenomenon that can also be observed with Asscher.

It is understandable that national leaders oppose European proposals and that they do so in public. It is less understandable that they voice their concerns after the decision has been taken, and that they don’t talk with, but past each other. To the “new” European citizens, this comes across as unfair and dishonest. At the end of the day, it cuts us a strange figure to complain about decisions that we, as the Netherlands, have agreed to ourselves.

An abridged version of this article first appeared in the Dutch daily newspaper de Volkskrant on 27 December 2013.

Maarten Hillebrandt MSc is a PhD researcher at the Amsterdam Centre for European Law and Governance. His personal page can be accessed here.

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