September 18, 2017
Immediately after the devastating effects of hurricane Irma in the Caribbean became clear, Dutch media often spoke of the lack of EU support for the Dutch island of Sint Maarten, the island that was hit particularly hard by the cyclone. True enough, the EU funds readily available for the Caribbean island of Sint Maarten are limited and will have to be made available on ad hoc basis. What was striking however, was that Dutch Media (NOS, RTL Nieuws) repeatedly stated that Sint Maarten had ‘left’ the European Union when, in 2010, it had opted for the status of an ‘autonomous country’ within the Kingdom of The Netherlands. This piece of information, in which one might even detect an undertone of blame, was then dramatically contrasted with the situation of French Saint Martin, the northern part of the same island, that is eligible for EU support as it is ‘still’ part of France and thus of the EU. It is one of those moments where the EU lawyer feels the need to step in to set some basic facts straight before any debate continues on the role the EU should play in disaster relief and the responsibility Dutch Sint Maarten had in maneuvering itself in its current situation, a situation that indeed seems dire from a European law perspective.
What is exactly the geographical scope of the EU? There are numerous territories around the globe with differing ties with the EU, invariably through the Member State that was the former colonial power. A useful distinction in this regard is the difference between Outermost Regions (‘OMRs’) and Overseas Countries and Territories (‘OCTs’), (although there are also a number of territories and regions that qualify as neither, like Gibraltar or the British Sovereign Base Areas on Cyprus). As a rule of thumb, in OMRs, EU law applies unless provided otherwise whereas in the second group, the OCTs, EU law is not applicable unless provided otherwise. Up to this point, the journalists were thus correct: The French part of the island, Saint Martin, is listed in the EU Treaties as an OMR (see Article 349 TFEU) whereas the Dutch part of the same island, Sint Maarten, is listed as an OCT (see Art. 355(2) TFEU and Appendix II to the TFEU). The Outermost Regions are eligible for EU support from the massive European Structural and Investment Funds (‘ESI Funds’) that support regional aid, cohesion policy, agriculture, fisheries and social policy as well as support from the EU relief fund for natural disasters. There is financial aid available for the OCTs under the European Development Fund, but it does not cover relief aid in case of natural disasters.
The point where media got it wrong was how Dutch Sint Maarten was maneuvered into this unfavorable position. The people of Sint Maarten never ‘left’ the EU since they were never part of it in the first place. When in 2010 they voted in a referendum to become an autonomous ‘country’ within the Kingdom of the Netherlands, their constitutional position within The Netherlands may have changed, but this was of no consequence for their status under EU law as Sint Maarten was prior to that referendum also an OCT (or to be precise, part of a larger OCT: The Netherlands Antilles, still listed as such in Annex II to the TFEU).
The only actors capable of ‘banning’ people and territories from the geographical reach of EU legislation and policies are the Member States themselves (one hopes with the explicit consent of the people living in the territories most concerned). In this respect, there is a second point that is noteworthy. If a Member State decides to reconstitute itself internally (like The Kingdom of the Netherlands did in 2010, dismantling the old ‘country’ of The Netherlands Antilles and allowing Sint Maarten to become a ‘country’ in its own right), EU law does not follow suit automatically. A change in the territorial scope of Union law necessitates a change in the text of the EU Treaties, of which the Member States are still ‘Masters’. The two developments of national constitutional arrangements and adaptation thereto of EU law are not always in tune with one another. Thus, when the Dutch island of Aruba became a separate ‘country’ within the Kingdom of the Netherlands in 1986, it took until the Treaty of Amsterdam (1997) to reflect this internal change in EU law.
Sometimes this disparity between the status of the territory under national law and under EU law is to the benefit of the territory. In fact, French Saint Martin had turned from a Département d’outre-mer (essentially a French Province) to a Collectivité d’outre mer (with looser ties to metropolitan France). Yet its status under EU law is still that of an OMR – with all the EU-derived benefits intact. Another French island hit hard by hurricane Irma, Saint Barthélemy, is in the opposite situation. It also changed from Département to Collectivité but this time that status change was reflected in EU law as since 2012 Saint Barthélemy is listed as an OCT.
This incongruence between national constitutional arrangements and status under EU law also proves another point, namely that the people of Dutch Sint Maarten cannot be indirectly blamed for their current ‘meagre’ EU law status. Indeed, in the 2010 referendum they could also have voted for closer ties with the cosmopolitan part of the Netherlands, effectively becoming a ‘special municipality’ of the Kingdom, a decision that other islands of the former Dutch ‘country’ of the Netherlands Antilles had indeed taken (Saba, Sint Eustatius and Bonaire). Even if the referendum had resulted in that outcome, Sint Maarten would still have been an OCT without subsequent change of the EU Treaties.
Interestingly, since the Treaty of Lisbon, the possibility to change the status of OCTs to OMRs (and vice versa, as happened with Saint Barthélemy) has been made less cumbersome. In a special type of simplified Treaty revision procedure, Article 355(6) TFEU now allows for such a change by a unanimous decision of the European Council (with limited to no role for the Commission and the European Parliament). A national round of ratifications by all Member State parliaments is no longer necessary. The Dutch Government has up to this point not yet proposed to use this mechanism to the advantage of any of the Dutch Antilles, not even for the islands that opted to become ‘special municipalities’ of the Kingdom in 2010.
Having set this straight, one thing that applies irrespective of the status of Sint Maarten is that its inhabitants are citizens of the Kingdom of the Netherlands and hence ‘EU citizens’ under Article 20 TFEU, an issue that was in the spotlight when the electoral rights of these ‘Caribbean Europeans’ for the European Parliament was discussed in the Eman and Sevinger case. On that note, there is a just sense of solidarity in the metropolitan part of the Netherlands to act on this crisis and equally good reasons for the EU Institutions to provide relief after this dreadful devastation, if not based on legal grounds, then at least on moral grounds!
Thomas Vandamme is a lecturer in European Law at the University of Amsterdam.
 See Council regulation 2012/2002 establishing the European Solidarity Fund, OJEU 2002, L 311/3
 Such relief is only available for the ACP countries, not the OCTs, see Article 2 sub c of the International Agreement on the Financing of ACP and OCT decisions, OJEU, 2013, L210/01.
 See European Council Decision 2010/718/EU of 29 October 2010, OJEU 2010, L 325/4).
 There is only Declaration 60 in which The Netherlands declared that if such a decision is taken, that decision will be taken in accordance with Statute of the Kingdom of the Netherlands, the basic document that regulates the relations between the constituent territories of the Kingdom. Unlike Declaration 43 on Mayotte, Declaration 60 does not oblige the European Council to grant such a request.
 See C-300/04, Eman and Sevinger, ECLI:EU:C:2006:545.