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The Netherlands and (Facultative) Mixity: Pragmatism over Principles?

1.1 General considerations The 2013 ‘Guidelines for external action by the Union and its Member States’ of the government of the Netherlands are intended to guide the decisions related to the division of competences, the position in international fora and the negotiation and conclusion of international agreements. The very first sentence in that document indicates that the EU Treaties are leading in all cases. Yet, pragmatism is in the Dutch genetic code. This Dutch pragmatism also influences its approach towards mixed agreements and facultative mixity. Thus, legal considerations influence the assessment of competences but this legal assessment can be adjusted on the basis of political or pragmatic considerations. This finding has been earlier summarised as “principles when necessary, practical when useful”. That this may also lead to giving priority to pragmatism over principles is reflected in the general guidelines for external representation in international organisations which have been adopted in 2010 by the Council of Ministers of the Netherlands. These guiding principles are relevant for the question who should represent the Union and the Member States in those international organizations and negotiations in which both are represented. The first guiding principle, again, is that the EU Treaties are leading in all cases. The second guideline expresses the Dutch aim to strive for decisive, coherent and effective external action by the Union and the Member States. The Netherlands acts jointly with other EU partners as much as possible, taking into account the means by which the EU and the Member States could act most effectively. The guiding principles also indicate that the Netherlands shall, as much as possible, uphold the unity of the EU’s external representation. Hence, the Dutch government generally adopts the position that a mixed agreement is considered