Steve Peers

Denmark’s involvement in international criminal law, exemplified by the TV show “The Bridge,” is facing uncertainty due to changing EU regulations. This situation will soon lead Denmark to vote on modifying its current near-total opt-out of EU Justice and Home Affairs (JHA) laws. While the general implications have been discussed, the specifics of this vote are now clearer.

To recap, Denmark negotiated opt-outs from the euro, defense, and parts of JHA law in 1992. These were formalized in a Protocol within the Treaty of Amsterdam. The JHA opt-out was later adjusted by the Treaty of Lisbon.

Currently, Denmark participates in EU policing and criminal law measures established before the Treaty of Lisbon, Schengen border controls (under international, not EU law), EU visa list rules, and Dublin regulations on asylum applications. It also engages with regulations on civil jurisdiction and document service through agreements with the EU. However, Denmark cannot participate in other EU immigration, asylum, cross-border civil law, or policing and criminal law rules implemented after the Treaty of Lisbon.

Denmark can either fully revoke its JHA opt-out or adopt a selective approach, enabling it to opt into specific JHA measures like the UK and Ireland. However, unlike those countries, Denmark would remain bound by Schengen rules, which would then apply as EU law, not international law.

While Danish governments have long promised a referendum on the JHA opt-out, concrete plans emerged due to proposed EU legislation updating Europol. This spurred an agreement between governing parties and some opposition parties (excluding the Danish Peoples’ Party) known as the ‘Agreement on Denmark in Europol.’ This agreement schedules the referendum after the next general election (due by September 2015) but no later than March 31, 2016. The primary goal is to enable Denmark to opt into the new Europol rules, but it also includes examining potential opt-ins to other relevant EU laws, excluding immigration and asylum.

Following an analysis, the parties agreed that a successful referendum would lead to Denmark opting into 22 EU laws and rejecting 10 others.

Regarding civil cooperation, Denmark plans to opt into most measures related to insolvency, payment orders, small claims, European enforcement orders, mediation, the Rome Regulations I and II, external relations, protection orders, inheritance, maintenance proceedings, parental responsibility, and account preservation. This includes opting into existing legislation and its amendments.

However, they decided against joining legislation on cross-border legal aid or the Rome III Regulation on divorce conflicts of law. Decisions on opting into legislation on marital property and civil partnerships upon relationship breakdown are pending. Opt-ins to measures not yet adopted hinge on future consensus among relevant parties or general election endorsement.

For policing and criminal law, Denmark intends to opt into all substantive criminal law measures and most concerning EU agencies and mutual recognition. This includes Directives on the European Investigation Order, protection orders, human trafficking, child sexual abuse, cybercrime, market abuse, and euro counterfeiting. Conversely, they exclude legislation on victims’ rights, suspects’ rights, confiscation of criminal assets, and EU funding in JHA matters.

Partial agreement exists on future measures. Opt-ins are planned for regulations concerning Europol, Eurojust, and passenger name records, while opting out of the European Public Prosecutor’s office legislation. Decisions on proposals regarding the European Police College, fraud against EU funds, drug trafficking, and three additional suspects’ rights measures are contingent on future consensus or electoral endorsement.

This clarification informs the Danish public’s vote. In essence, Denmark would participate in EU measures aiding prosecution without recent legislation balancing victims’ or suspects’ rights. Similarly, it would remain in the Schengen area without harmonizing its immigration and asylum laws like other EU member states. Overall, Denmark would participate in more JHA legislation than the UK and Ireland, exceeding even its current full Schengen participation. This includes areas like inheritance, account preservation, investigation orders, market abuse, currency counterfeiting, and Eurojust, where the UK or Ireland have opted out. Conversely, the UK and Ireland have opted into EU legislation on victims’ rights, some suspects’ rights, and the initial phase of EU asylum law. With Ireland in the eurozone, a Danish ‘yes’ to selective JHA participation would solidify the UK’s position as the primary non-participant in EU laws binding most other member states.

Barnard & Peers: chapter 26