Opt-outs in the European Union
In general, the law of the European Union is valid in all of the twenty-eight European Union member states. However, occasionally member states negotiate certain opt-outs from legislation or treaties of the European Union, meaning they do not have to participate in certain policy areas. Currently, four states have such opt-outs: Denmark (four opt-outs), Ireland (two opt-outs), Poland (one opt-out) and the United Kingdom (four opt-outs).
This is distinct from the enhanced co-operation, a measure introduced in the Treaty of Amsterdam, whereby a minimum of nine member states are allowed to co-operate within the structure of the European Union without involving other member states, after the European Commission and a qualified majority have approved the measure. It is further distinct from Mechanism for Cooperation and Verification and permanent acquis suspensions, whose lifting is conditional on meeting certain benchmarks by the affected member states.
- 1 Current opt-outs
- 1.1 Schengen Agreement – Ireland and United Kingdom
- 1.2 Economic and Monetary Union – Denmark and the United Kingdom
- 1.3 Defence – Denmark
- 1.4 Citizenship – Denmark
- 1.5 Charter of Fundamental Rights of the European Union – Poland and the United Kingdom
- 1.6 Area of freedom, security and justice – Denmark, Ireland and the United Kingdom
- 2 Former opt-outs
- 3 Table
- 4 See also
- 5 Notes
- 6 External links
This article is part of a series on the
As of 2007, two states have formal opt-outs from the Schengen acquis and the common currency, while Denmark secured three additional opt-outs along with its euro opt-out. The Danish government of Helle Thorning-Schmidt, elected in 2011, has said it intends to hold a referendum on ending the opt-outs on Common Security and Defence Policy, as well as Justice and Home Affairs.
Schengen Agreement – Ireland and United Kingdom
The Schengen Agreement abolished border controls between member states. Ireland and the United Kingdom received opt-outs from implementating of the Schengen acquis when the Treaty of Amsterdam incorporated them into the EU treaties, though Ireland only joined the UK in adopting this opt-out to keep their border with Northern Ireland open via the Common Travel Area (CTA). Prior to the renewal of the CTA in 2011, when the British government was proposing that passports be required for Irish citizens to enter the UK, there were calls for Ireland to join the Schengen Area. However, in response to a question on the issue, the Irish Taoiseach stated: "On the question of whether this is the end of the common travel area and should we join Schengen, the answer is "no"." The opt-out has been criticised in the United Kingdom for hampering the United Kingdom's capabilities in stopping transnational crime through the inability to access the Schengen Information System.
Economic and Monetary Union – Denmark and the United Kingdom
All member states, other than Denmark and the United Kingdom, have either adopted the euro or are legally bound to do so. The UK secured an opt-out in the initial Maastricht Treaty negotiations, while Denmark did so later as part of the Edinburgh Agreement following the Maastricht Treaty's initial rejection in a 1992 Danish referendum, with the purpose of assisting its approval in a subsequent referendum; which it duly did.
In the UK, the Labour government of Tony Blair argued that the UK should join the euro, contingent on approval in a referendum, if five economic tests were met. However, the assessment of those tests in June 2003 concluded that not all were met. The policy of current coalition government, elected in 2010, is against introducing the euro prior to the next general election, due in 2015.
In 2000 the Danish electorate voted against joining the euro in a referendum by a margin of 53.2% to 46.8% on a turnout of 87.6%.
Defence – Denmark
Denmark obtained an opt-out from EU's Common Security and Defence Policy (CSDP) policy as part of the Edinburgh Agreement, which means that it neither takes part in discussions or is bound by decisions which defence implications. As a consequence, Denmark is excluded from foreign policy discussions with defence implications and does not participate in foreign missions with a defence component.
Citizenship – Denmark
As part of the 1992 Edinburgh Agreement Denmark obtained a clarification on the nature of citizenship of the European Union which was proposed in the then yet to come into force Maastrict Treaty. The part of the agreement relating to citizenship was as follows:
- "The provisions of Part Two of the Treaty establishing the European Community relating to citizenship of the Union give nationals of the Member States additional rights and protection as specified in that Part. They do not in any way take the place of national citizenship. The question whether an individual possesses the nationality of a Member State will be settled solely by reference to the national law of the Member State concerned."
The substance of this statement was subsequently added to the Amsterdam Treaty and applies to all member states and not just Denmark. This provision stated that:
- "Citizenship of the Union shall complement and not replace national citizenship."
Charter of Fundamental Rights of the European Union – Poland and the United Kingdom
Although not a full opt-out, both Poland and the United Kingdom secured clarifications about how the Charter of Fundamental Rights of the European Union, a part of the Treaty of Lisbon, would interact with national law in their countries limiting the extent that European courts would be able to rule on issues related to the Charter if they are brought to courts in Poland or the UK. Poland's then ruling party, Law and Justice, mainly noted concerns that it might force Poland to grant homosexual couples the same kind of benefits which heterosexual couples enjoy, while the UK was worried that the Charter might be used to alter British labour law, especially as relates to allowing more strikes. The European Scrutiny Committee of the British House of Commons, including members of both the Labour Party and the Conservative Party, has however cast doubts on the provision's text, asserting that the clarification might not be worded strongly and clearly enough to achieve the government's aims.
After the Civic Platform won the 2007 parliamentary election in Poland, it announced that it would not opt-out from the Charter, leaving the UK as the only state not to adopt it. However, Donald Tusk, the new Prime Minister and leader of the Civic Platform, later qualified that pledge, stating he would consider the risks before signing the Charter, and on 23 November 2007 he announced that he would not sign the Charter after all (despite the fact that both his party and their coalition partner, the Polish People's Party, were in favour of signing the Charter), stating that he wanted to honour the deals negotiated by the previous government and that he needed the support of Law and Justice to gain the two-thirds majority necessary to ratify the Treaty of Lisbon in the Parliament of Poland. Shortly after the signature of the treaty, the Polish Sejm passed a resolution which expressed its desire to be able to withdraw from the Protocol. Tusk later clarified that he may sign up to the Charter after successful ratification of the Treaty of Lisbon has taken place. However, after the treaty entered into force a spokesperson for the Polish President argued that the Charter already applied in Poland and thus it was not necessary to withdraw from the protocol. He also stated that the government was not actively attempting to withdraw from the protocol. Polish Minister of Foreign Affairs Radosław Sikorski, of Civic Platform, argued that the protocol only narrowly modified the charter's application in Poland, and that formally renouncing the opt-out would require a treaty amendment which would need to be ratified by all EU member states. In April 2012, Leszek Miller, leader of the Democratic Left Alliance, stated that he would sign the charter if he comes to power. According to Andrew Duff, British Member of the European Parliament, "A Polish constitutional mechanism has since been devised whereby Poland can decide to amend or to withdraw from the Protocol, and such a possibility remains under review."
Proposed Czech opt-out
In 2009, Czech President Václav Klaus refused to complete ratification of the Treaty of Lisbon unless the Czech Republic was given an opt-out from the Charter of Fundamental Rights (as Poland and the United Kingdom had been with Protocol 30(source)) fearing the Charter would allow the families of Germans who were expelled from territory in modern day Czech Republic after the Second World War to challenge the expulsion before the EU's courts, though legal experts have suggested that the laws under which the German were expelled, the Beneš decrees, did not fall under the jurisdiction of EU law. In October 2009, EU leaders agreed to amend the protocol to include the Czech Republic at the time of the next accession treaty.
In September 2011, the Czech government formally submitted a request to the Council that the promised treaty revisions be made to extend the protocol to the Czech Republic, and a draft amendment to this effect was proposed by the European Council. However, the Czech Senate passed a resolution in October 2011 opposing their accession to the protocol. When Croatia's Treaty of Accession 2011 was signed in late 2011, the Czech protocol amendment was not included. In October 2012, the European Parliament Constitutional Affairs Committee approved a report which recommended against the Czech Republic's accession to the Protocol. On 11 December 2012, a third draft of the European Parliament's committee report was published, and on 22 May 2013 the Parliament voted in favour of calling on the European Council "not to examine the proposed amendment of the Treaties".  The Parliament did, however, give its consent in advance that a treaty revision to add the Czech Republic to Protocol 30 would not require a new convention. In January 2014, the new Czech Human Rights Minister Jiri Dienstbier said that he would attempt to have his country's request for an opt-out withdrawn. This was confirmed on 20 February 2014 by the new Prime Minister Bohuslav Sobotka, who formally withdrew the request for an opt-out during a meeting with President of the European Commission José Manuel Barroso shortly after his newly elected government won the confidence of Parliament.
Area of freedom, security and justice – Denmark, Ireland and the United Kingdom
Denmark, Ireland and the United Kingdom have opt-outs from the Area of freedom, security and justice.
Ireland and the United Kingdom have a flexible opt-out from legislation adopted in the area of freedom, security and justice, which includes all matters previously part of the pre-Amsterdam Justice and Home Affairs pillar. This allows them to opt-in or out of legislation and legislative initiatives on a case-by-case basis, which they usually do, except on matters related to Schengen.
Under Protocol 36 of the Lisbon Treaty, the UK also has the option to opt-out of all the police and criminal justice legislation adopted prior to the Lisbon Treaty, when they gained the right to opt-in on a case-by-case basis. The decision to opt-out must be made by June 2014, six months prior to the aforementioned measures coming under the jurisdiction of the European Court of Justice. While the protocol only permits the UK to either opt-out from all the legislation or none of it, they are permitted to subsequently opt back into individual measures. The UK government has stated that it intends to exercise this opt-out.
In contrast, Denmark has a more rigid opt-out from the area of freedom, security and justice, obtained in the Edinburgh Agreement, and does not, as a matter of EU law, participate in these policy areas with the exception of Schengen visa rules. When a measure is adopted which builds upon the Schengen acquis, Denmark has six months to decide whether to implement it. If Denmark decides to implement the measure, it takes the force of an international agreement between Denmark and the Schengen states. A failure by Denmark to implement a Schengen measure could result in it being excluded from the Schengen Area.
In the negotiating leading to the Lisbon Treaty, Denmark obtained an option of converting its opt-out into one modelled on the Irish and British model.
|Schengen Area||EMU||Citizenship||CSDP||AFSJ||Charter of Fundamental Rights||Social Chapter|
|Denmark||de jure only
— fully participating in policy area
— former opt-out
— opt-out in place
• de jure only – de jure only; common citizenship subsequently adopted by all members.
• former – former opt-out that was subsequently abolished.
- Opting out, a similar concept in Canadian politics
- Nullification (U.S. Constitution), a related concept in United States politics
- Mechanism for Cooperation and Verification in the European Union
- Freedom of movement for workers
- Multi-speed Europe
- Sweden and the euro
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