Steve Peers
The Danish Prime Minister recently revealed that Denmark would hold a referendum in 2015 regarding its relationship with the EU. While widely reported as a vote on rejoining EU Justice and Home Affairs (JHA) law, the referendum actually focuses on replacing Denmark’s complete opt-out with a selective one. This post will examine the details of this issue, including which measures Denmark could potentially opt back into.
The origin of this opt-out can be traced back to the 1992 Danish referendum on the Maastricht Treaty. After Denmark initially rejected the treaty, EU leaders created a decision stating that while Denmark fully participates in EU JHA law, any transfer of power to the then-European Community would be subject to a Danish referendum. This is widely considered the foundation of Denmark’s JHA opt-out.
While frequently misconstrued as an opt-out of EU citizenship, this decision simply defines the connection between Danish and EU citizenship. Contrary to popular belief, Denmark does not possess an EU citizenship opt-out.
The JHA opt-out was formally included as a Protocol to the Treaties during the Treaty of Amsterdam (enacted in 1999) and later modified by the Treaty of Lisbon (enacted in 2009). It is currently found in Protocol 22 of the Treaties.
To summarize the legal situation, Denmark is bound by the Schengen rules eliminating border controls between participating Member States and related measures, such as the Schengen Borders Code, the EU visa code, the Schengen Information System, and Frontex, the EU’s border control agency. However, Denmark is only bound by these measures under international law, not EU law. While Denmark could theoretically opt out of new measures in this area, there would likely be unspecified consequences. In reality, Denmark has not yet taken this step.
Furthermore, Denmark is not obligated to follow any other EU legislation on immigration, asylum law, or civil cooperation beyond measures establishing a standardized list of countries requiring visas for entry. However, Denmark adheres to a few of these measures through a separate treaty with the EU. This includes the Dublin rules on asylum applications, the Brussels Regulation on civil and commercial jurisdiction, the Regulation on service of documents, and the original Rome Convention on contract law conflicts. Notably, Denmark is not bound by the Regulation that replaced the Rome Convention.
Thirdly, Denmark is obligated to follow EU measures concerning policing and criminal law established before the Treaty of Lisbon came into effect. Currently, this encompasses measures creating Europol (the EU police agency), Eurojust (the EU prosecutors’ agency), and the European Arrest Warrant.
In contrast, Denmark is not obligated to follow EU measures concerning policing and criminal law enacted after the Treaty of Lisbon came into effect. This notably includes EU legislation on suspects’ rights, victims’ rights, and the European Investigation Order. Soon, this will also encompass the legislation re-establishing Europol, currently in its final negotiation stages between the European Parliament and the Council. This is a significant factor in the Prime Minister’s decision to reconsider the opt-out.
Her argument rests on the assumption that the pre-Lisbon measure establishing Europol will cease to apply to Denmark once a new measure is adopted. However, Article 2 of Protocol 22 states that acts of the Union in the field of police cooperation and judicial cooperation in criminal matters adopted before the Treaty of Lisbon, which are amended, shall continue to be binding upon and applicable to Denmark unchanged.
Despite this, it is unclear how Denmark could realistically remain part of Europol under its pre-Lisbon structure while all other Member States (assuming the UK and Ireland opt in) operate under a Europol established by a post-Lisbon Regulation.
A similar issue will likely arise with Eurojust (the EU prosecutors’ agency) shortly. There is a proposal to substitute the pre-Lisbon Decision that created Eurojust with a post-Lisbon Regulation.
What would opting back in mean for Denmark? Denmark can withdraw from “all or part” of the Protocol, encompassing an opt-out related to EU defense policy, without requiring a Treaty amendment. Notably, Denmark’s opt-out from the obligation to adopt the EU single currency is outlined in a separate Protocol.
However, Denmark has another option. They can replace the current complete opt-out for post-Lisbon JHA measures unrelated to the Schengen acquis with a selective opt-out. This would give Denmark the power to opt in to JHA measures individually. According to media reports, this is the Prime Minister’s objective. Therefore, stating that Denmark is voting to “give up its JHA opt-out” is inaccurate.
If the referendum passes, Denmark would gain the same power as the UK and Ireland to opt into JHA measures individually. This could occur within three months of a measure being proposed or anytime after its final adoption. Unlike the UK and Ireland, however, Denmark will remain bound by EU measures on visa lists with no opt-out option and will continue participating in the Schengen rules, although these rules would hold EU law power in Denmark rather than international law.
The Danish government and parliament would establish the procedures for opting in under national law. If permitted, Denmark could mandate that its national parliament approves every opt-in decision, potentially with a higher majority vote required in certain cases. The Danish government could also preemptively disclose which measures it would or wouldn’t seek to opt into.
For transparency, this post’s Annex provides a comprehensive list of existing measures and proposals that Denmark could opt into if its citizens vote to replace the complete JHA opt-out with a selective one. It’s crucial to understand that Denmark could choose to participate in only a small number of these measures if it wished.
Some argue that EU opt-outs aren’t genuinely optional because Member States face significant pressure to opt in regardless. However, the past 15 years demonstrate otherwise. Denmark and the UK have not been forced into adopting the single currency, and the UK and Ireland have opted out of an increasing number of JHA measures.
Barnard & Peers: chapter 2, chapter 25, chapter 26
Annex
JHA measures which Denmark could opt in to after adopting a selective opt-out
1) Adopted measures
Asylum
1. Directive 2001/55 on temporary protection (OJ 2001 L 212/12)
2. Regulation 439/2010 establishing a European Asylum Support Office (OJ 2010 L 132/11)
3. Recast Directive 2011/95 on qualification and content of international protection (OJ 2011 L 337/9)
4. Directive 2013/33 on reception conditions for asylum-seekers (OJ 2013 L 180/96)
5. Regulation 604/2013 on responsibility for asylum applications (OJ 2013 L 180/31) – nb applies to Denmark by means of treaty already
6. Directive 2013/32 on international protection procedures (OJ 2013 L 180/60)
7. Regulation 603/2013 on Eurodac (OJ 2013 L 180/1) – nb applies to Denmark by means of treaty already
8. Regulation establishing the asylum and migration Fund (OJ 2014 L 150/168)
9. Regulation laying down general provisions on the Asylum and Migration Fund and on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management ((OJ 2014 L 150/112)
Irregular migration
1. Directive 2004/82 on transmitting passenger information by carriers (OJ 2004 L 261/24)
2. Decision on joint expulsion flights (OJ 2004 L 261/28)
3. Directive 2004/81 on residence permits for victims of trafficking or facilitation of irregular migration (OJ 2004 L 261/19)
4. Decision on an information and coordination network for Member States’ migration management services (OJ 2005 L 83/48)
5. Directive 2008/115 on common rules for expulsion – Returns Directive (OJ 2008 L 348/98) – nb applies to Denmark in part already
6. Directive 2009/52 on sanctions for employers of irregular migrants (OJ 2009 L 168/24)
Legal Migration
1. Directive 2003/86 on family reunion (OJ 2003 L 251/12)
2. Directive 2003/109 on the status of long-term resident third-country nationals (OJ 2004 L 16/44)
3. Directive 2004/114 on entry and residence of students, volunteers and others (OJ 2004 L 375/12)
4. Directive 2005/71 on admission of researchers (OJ 2005 L 289/15)
5. Decision on exchange of asylum and immigration information (OJ 2006 L 283/40)
6. Decision establishing Migration Network (OJ 2008 L 131/7)
7. Directive 2009/50 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (‘Blue Card Directive’) (OJ 2009 L 155/17)
8. Regulation 1231/2010 extending Regulation 883/2004 on social security for EU citizens to third-country nationals who move within the EU (OJ 2010 L 344/1)
9. Directive 2011/51 applying long-term residents’ Directive to refugees and beneficiaries of subsidiary protection (OJ 2011 L 132/1)
10. Directive 2011/98 (single permit Directive) (OJ 2011 L 343/1)
11. Directive 2014/36 on admission of seasonal workers (OJ 2014 L 94/375)
12. Directive 2014/66 on admission of intra-corporate transferees (OJ 2014 L 157/1)
Civil Cooperation
1. Regulation 1346/2000 on jurisdiction over and enforcement of insolvency proceedings (OJ 2000 L 160/1)
2. Regulation 1347/2000 on jurisdiction over and enforcement of matrimonial and custody judgments (OJ 2000 L 160/19)
3. Regulation 1206/2001 on cross-border taking of evidence in civil and commercial matters (OJ 2001 L 174/1)
4. Decision 2001/470 on European Judicial Network on civil and commercial matters (OJ 2001 L 174/25)
5.** Directive 2003/8 on legal aid (OJ 2003 L 26/41)**
6. Regulation 2201/2003 on parental responsibility (OJ 2003 L 338/1)
7. Regulation 805/2004 on European enforcement order (OJ 2004 L 143/15)
8. Regulation 1896/2006 creating a European order for payment procedure (OJ 2006 L 399/1)
9. Regulation 861/2007 establishing a European small claims procedure (OJ 2007 L 199/1)
10. Regulation 864/2007 on the law applicable to non-contractual obligations (‘Rome II’) (OJ 2007 L 199/40)
11. Directive 2008/52 on mediation (OJ 2008 L 136/3)
12. Regulation 593/2008 on ‘Rome I’ (choice of law for contractual obligations) (OJ 2008 L 177/6)
13. Decision amending Decision on judicial network (OJ 2009 L 168/35)
14. Regulation 662/2009 on Member States’ negotiation and conclusion of external treaties relating to maintenance, divorce and parental responsibility (OJ 2009 L 200/25)
15. Regulation 664/2009 on Member States’ negotiation and conclusion of external treaties relating to conflict of laws as regards contractual and non-contractual obligations (OJ 2009 L 200/46)
16. ‘Rome III’ Regulation 1259/2010 on choice of law in divorce proceedings (OJ 2010 L 343/10)
17. Regulation 650/2012 on choice of law and jurisdiction in succession proceedings (OJ 2012 L 201/107)
18. Regulation 1215/2012 on civil and commercial jurisdiction (OJ 2012 L 351/1) - – nb applies to Denmark by means of treaty already
19_._ Regulation 606/2013 on civil law enforcement of protection orders (OJ 2013 L 181/4)
20. Regulation 542/1014 amending civil jurisdiction Regulation (OJ 2014 L 163/1) – nb applies to Denmark by means of treaty already
21. Regulation on European account preservation orders
Criminal law and policing
Directives
1. Directive 2010/64 on the right to interpretation and translation in the framework of criminal proceedings (OJ 2010 L 280/1)
2. Directive 2011/36 on trafficking in persons (OJ 2011 L 101/1)
3. Directive 2011/82 on exchange of information on traffic offences (OJ 2011 L 288/1)
4. Directive 2011/92 on sexual exploitation of children (OJ 2011 L 335/1)
5. Directive 2011/99 on European protection order (OJ 2011 L 338/2)
6. Directive 2012/13 on the right to information on criminal proceedings (OJ 2012 L 142/1)
7. Directive 2012/29 on crime victims’ rights (OJ 2012 L 315/57)
8. Directive 2013/40 on attacks on information systems (OJ 2013 L 218/8)
9. Directive 2013/48 on access to lawyer and communication rights (OJ 2013 L 294/1)
10. Directive 2014/41 on European investigation order (OJ 2014 L 130/1)
11. Directive 2014/42 on freezing and confiscation of criminal proceeds (OJ 2014 L 127/39)
12. Directive 2014/57 on criminal sanctions against market abuse
13. Directive 2014/62 on counterfeiting currency (OJ 2014 L 151/1)
Regulations
1. Regulation establishing a Justice Programme (OJ 2013 L 354/73)
2. Regulation on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management (OJ 2014 L 150/93)
3. Regulation 543/2014 amending Decision on European Police College (OJ 2014 L 163/5)
2) Proposals
Immigration and asylum
1. Directive on admission of students, researchers and others (COM (2013) 151, 25 March 2013)
2. Regulation amending the Dublin III Regulation regarding unaccompanied minors (COM (2014) 382, 26 June 2014)
Civil cooperation
1. Commission invitation to Council to apply ‘co-decision’ procedure to the issue of maintenance obligations (COM (2005) 648, 15 Dec. 2005)
2. Commission proposal for Regulation on choice of law and jurisdiction on matrimonial property (COM (2011) 126, 16 Mar. 2011)
3. Commission proposal for Regulation on choice of law and jurisdiction on registered partnerships (COM (2011) 127, 16 Mar. 2011)
4. Commission proposal for Regulation amending insolvency Regulation (COM (2012) 744, 12 Dec. 2012)
5. Proposal for Regulation amending prior legislation regarding implementing measures (COM (2013) 452, 27 June 2013)
6. Proposal for Regulation amending small claims and order for payment Regulations (COM (2013) 794, 19 Nov. 2013)
Criminal law
1. Proposal for Directive on the right to interpretation and translation in the framework of criminal proceedings (COM (2010) 82, 9 March 2010)
2. Proposal for Directive on passenger name records (COM (2011) 32, 2 Feb. 2011)
3. Proposal for Directive on protection of EU financial interests (COM (2012) 363, 11 July 2012)
4. Proposal to amend Framework Decision on drug trafficking (COM (2013) 618, 17 Sep. 2013)
5. Proposal on presumption of innocence (COM (2013) 821, 27 Nov. 2013)
6. Proposal on childrens’ rights as suspects (COM (2013) 822, 27 Nov. 2013)
7. Proposal on provisional legal aid (COM (2013) 824, 27 Nov. 2013)
8. Regulation on Europol (COM (2013) 173, 27 March 2013)
9_._ Regulation on European Public Prosecutor’s Office (COM (2013) 534, 17 July 2013)
10. Regulation on Eurojust (COM (2013) 535, 17 July 2013)
Note: this list does not include measures which have expired or been replaced (or which will be replaced as of July 2015). It also does not include international treaties with third States, since at least in some cases, Denmark has parallel arrangements in place with the countries concerned. The most important treaties in question concern readmission, visa facilitation, the Hague Convention on maintenance and treaties on mutual assistance, extradition and exchange of police information.