The Netherlands is on the brink of a significant clash with Brussels over migration, a highly contentious issue. With a new government in place, led by 67-year-old independent Dick Schoof and backed by a coalition of four parties—PVV, VVD, BBB, and NSC—there is a strong focus on migration policies. The coalition’s program aims to reduce migratory flows, citing pressures on housing, healthcare, education, financial resources, and social cohesion. The initiatives include stricter admission procedures, reversing the burden of proof to decrease positive decisions, deporting people without valid residence permits, and immediately returning irregular migrants at the Belgian and German borders.
A notable point in the program is the proposal for an opt-out clause from the European asylum and migration policy, which the coalition plans to submit to the European Commission. This request comes just as the EU member states have given final approval to the New Pact on Migration and Asylum, a comprehensive reform designed to create collective, predictable rules for managing asylum seekers. The reform, which took nearly four years to negotiate, aims to establish solidarity across the EU by expanding the screening of new applicants, speeding up examination procedures, redistributing asylum seekers, and creating a common financial pool.
The proposal for an opt-out has raised eyebrows in Brussels, as opt-out clauses in the EU are rare. Currently, only Denmark, Ireland, and Poland have such clauses, covering areas like the eurozone, the Area of Freedom, Security and Justice (AFSJ), the Schengen Area, and the Charter of Fundamental Rights. The Netherlands now seeks to join this exclusive group.
At its core, the EU operates on common rules that must be uniformly applied to maintain the single market. Opt-out clauses, therefore, are extraordinary and create loopholes in the shared body of laws. They are politically sensitive, addressing specific grievances of member states to achieve broader political goals. Denmark, for example, requested opt-outs following the 1992 Maastricht Treaty, and Ireland followed suit with the Treaty of Amsterdam. Poland’s opt-out from the Charter of Fundamental Rights came during the 2007 Treaty of Lisbon negotiations.
Elise Muir, head of the Institute for European Law at KU Leuven, explains that a member state cannot opt-out from EU legislation once it has been adopted. Existing opt-outs were carved out during treaty revisions or the accession of new countries, requiring unanimous approval from all states. Mark Klaassen, a professor of migration law at Leiden University, adds that the Netherlands is bound by current and future EU asylum laws, making an opt-out incongruent with the New Pact’s goal of ensuring solidarity.
The Dutch government‘s request for an opt-out appears unlikely to succeed. It would require unanimous endorsement from all member states, which seems improbable given the political and legal framework of the EU. The proposal might be more about electioneering, aimed at appealing to voters of the far-right party in the coalition. Klaassen suggests that the new government understands the low chances of achieving an opt-out and that this move serves as an empty promise to far-right voters.
The European Commission, while refusing to comment on political programs, emphasized that EU law is binding on all member states once adopted. The Treaties do not include rules for an opt-out clause for the Netherlands in the domain of home affairs. The instruments of the New Pact on Migration and Asylum will be binding on the Netherlands, ensuring that the country remains part of the collective effort to manage migration within the EU framework.