The Danish politician Jens Peter Bonde, who served as a member of the European Parliament for almost thirty years, promised a very good bottle of red wine to any person who could give an example of a national law of one of the EU member states which cannot be touched upon by treaty principles or by the European Court. Bonde formulated his challenge after the conclusion of the Lisbon Treaty and before its entry into force on Dember 1st 2009. On the website EUABC.com he maintains that no one has come up so far with an example of a national law outside the reach of EU-law and that the bottle of wine is still in his possession.
As a lawyer by temperament and training based in The Netherlands, I happened to come across a Dutch law which is not affected in any manner whatsoever by the directives and regulations of the European Union. The Law on Membership of the Royal House of 30 May 2002, Stb. 2002, 275, regulates which persons are members of the royal house. The law consists of 15 articles and mentions all present members of the royal house by name and title. In more general terms, the law says that membership of the royal house may be granted to persons who can succeed the King by virtue of the Constitution. The law does not discriminate on the basis of sex or on any other basis except for nationality. Article 6 of the law makes abundantly clear that possession of the Dutch nationality is a conditio sine qua non for membership of the royal house of the Kingdom of the Netherlands.
If Bonde’s suggestions were correct, the Dutch law on membership of the royal house would form a clear-cut case of discrimination on grounds of nationality. The general prohibition of discrimination on the basis of nationality forms a cornerstone of the internal market and there is plenty of case-law of the EU Court of Justice, in which discrimination on grounds of nationality has been exposed and condemned. Consequently, if EU law touches upon all national laws, as the former Danish MEP holds, article 6 of the Dutch law on membership of the royal house cannot remain valid. Thus, in case a dispute concerning the membership of the royal house of the Netherlands were to be brought to the EU Court of Justice, the Court would have no option but to establish that the law is in contradiction with the EU principle of non-discrimination.
However, English, French, German or Greek pretenders to the Dutch throne would be ill-advised to develop their strategy solely on the basis of Bonde’s analysis. In his attempt to portray the EU as a monolithic SuperState, the former MEP overlooks the fact that the Lisbon Treaty founds the EU in article 1 on the principle that the member states are conferring competences on the EU in order to attain objectives they have in common. Article 4 goes on by saying that competences not conferred upon the Union in the Treaties remain with the member states. In line with this principle, article 4 para 2 stresses that the Union shall respect the essential State functions of the member states. The very construction of the EU therefore leaves ample room for national laws to remain outside the scope of the EU and for disputes concerning these laws to remain outside the competence of the EU Court of Justice. The Dutch law on membership of the royal house may serve to prove the point.
Bonde, however, won’t have it. Like many lawyers I enjoy a good glass of wine and the prospect to win the bottle induced me to submit my findings to Jens-Peter by mail. Unfortunately, my arguments fell on deaf ears. The archfather of euroscepticism continued to repeat that ‘no one can avoid the eu rules’ and insisted on keeping the bottle in his own cellar. While I assume it is to remain there forever, I regret that the discussion was conducted without any sense of humor. As a good glass of wine and a fine sense of humour often go hand in hand, I feel sorry for missing them both.