Opt-outs in the European Union

  member state with at least one opt-out

  member state with a de facto opt-out

  member state without opt-outs

In general, the law of the European Union is valid in all of the twenty-seven 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, five states have such opt-outs: Denmark (four opt-outs), Ireland (two opt-outs), Poland (one opt-out) Sweden (one opt-out, but only de facto) and the United Kingdom (four opt-outs). The Czech Republic will gain their first opt-out under the next treaty to be ratified (likely an accession treaty).

A related matter is the concept of enhanced co-operation, a measure introduced in the Treaty of Amsterdam, whereby a minimum of nine member states can decide to co-operate within the structure of the European Union without involving other member states, although the European Commission and a qualified majority have to approve the measure, as well. Enhanced co-operation has not yet been used.

Current opt-outs

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. Sweden is in a special situation which amounts to a de facto opt-out.

Schengen Agreement – Ireland and United Kingdom

The Schengen Agreement abolished border controls between member states. Ireland and the United Kingdom have opt-outs from implementation of the Schengen acquis, though Ireland only joined the UK in adopting this opt-out to keep the Ireland–United Kingdom Common Travel Area in effect. With the possible dissolution of the Common Travel Area in the future, Ireland technically may no longer maintain its opt-out from the Schengen Agreement, as agreed in the Treaty of Amsterdam. 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

United Kingdom

The Economic and Monetary Union (EMU) replaced national currencies with the euro. At present all but two members are obliged to join, the two members being the United Kingdom and Denmark (cf. Edinburgh Agreement below). The UK secured an opt-out from having to introduce the euro in the initial Maastricht Treaty negotiations, while Denmark did so later (see below). The Labour Party governments under Tony Blair and Gordon Brown have made a move to introduce the euro contingent on approval in a referendum, which will only be held after five economic tests devised by then-Chancellor of the Exchequer Gordon Brown have been met; the last assessment of the five economic tests (completed in June 2003) concluded that only one of the five had been met at that point, but that fulfilling two of the other four would ensure that the last two would also be fulfilled.

Sweden

Sweden, while not formally having negotiated an opt-out on this matter, did not join ERM II and thus deliberately failed to fulfil the criteria for introducing the euro; Sweden later voted against euro introduction in a referendum in 2003, and the issue is currently dormant. The European Commission and the European Central Bank have stated they would tacitly accept this derogation for the time being. Swedish governments have repeatedly stated they will only introduce the euro after a referendum approving this move has been held, and there are no plans for this to occur before the next election in 2010.

Edinburgh Agreement – Denmark

Denmark obtained four opt-outs from the Maastricht Treaty following the treaty's initial rejection in a 1992 referendum. The opt-outs are outlined in the Edinburgh Agreement and concern the EMU (as above), the European Security and Defence Policy (ESDP), Justice and Home Affairs (JHA) and the citizenship of the European Union. With these opt-outs the Danish people accepted the treaty in a second referendum held in 1993.

The EMU opt-out means Denmark is not obliged to participate in the third phase of the European Exchange Rate Mechanism, i. e. to replace the Danish krone with the euro. The abolition of the euro opt-out was put to a referendum in 2000 and was rejected. The ESDP opt-out originally meant Denmark would not be obliged to join the Western European Union (which originally handled the defence tasks of the EU). Now it means that Denmark does not participate in the European Union's foreign policy where defence is concerned. Hence it does not take part in decisions, does not act in that area and does not contribute troops to missions conducted under the auspices of the European Union. The JHA opt-out exempts Denmark from certain areas of home affairs. Significant parts of these areas were transferred from the third European Union pillar to the first under the Amsterdam Treaty; Denmark's opt-outs from these areas were kept valid through additional protocols. Acts made under those powers are not binding on Denmark except for those relating to Schengen, which are instead conducted on an intergovernmental basis with Denmark. Under the Treaty of Lisbon, Denmark can change its JHA opt-out from a complete opt-out to the case-by-case opt-in version applying to Ireland and the United Kingdom whenever they wish. The citizenship opt-out stated that European citizenship did not replace national citizenship; this opt-out was rendered meaningless when the Amsterdam Treaty adopted the same wording for all members.

The current government has been planning to hold a second referendum on abolishing the opt-outs (or at least the euro opt-out) since at least 2004, following a change in public opinion, but the discussions and controversy regarding the Treaty establishing a Constitution for Europe and the Treaty of Lisbon have delayed this. Following the 2007 parliamentary elections, Prime Minister Anders Fogh Rasmussen announced on 22 November 2007 his intention to hold a referendum on the opt-outs following the ratification of the Treaty of Lisbon. A poll in the same month found 52% for dropping the euro opt-out (39% against), 46% for dropping the defence opt-out (38% against) and 51% against dropping the judiciary opt-out (32% for).

Charter of Fundamental Rights of the European Union – Poland and the United Kingdom

Both Poland and the United Kingdom had originally opted out from the Charter of Fundamental Rights of the European Union, a part of the Treaty of Lisbon, meaning that European courts would not be able to rule on issues related to the Charter if they are brought to courts in Poland or the UK. Poland's 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 opt-out 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. He later clarified that he may sign up to the Charter after successful ratification of the Treaty of Lisbon has taken place.

Police and Judicial Co-operation in Criminal Matters – Ireland and the United Kingdom

Ireland and the United Kingdom have opted out from the change from unanimous decisions to qualified majority voting in the sector of Police and Judicial Co-operation in Criminal Matters; this decision will be reviewed in Ireland three years after the treaty enters into force. Both states can opt in on these voting issues on a case-by-case basis.

Future opt-outs: Next European Union treaty

During the ratification process of the Treaty of Lisbon, the Czech President Václav Klaus negotiated an opt-out from the Charter of Fundamental Rights of the European Union similar to that of Poland and the United Kingdom. However, it was at that point too late to include the opt-out in the Treaty of Lisbon itself, so it will instead be formalised following the adoption of the next European Union treaty, which is presumably an accession treaty for a future European Union member state.

Similarly, Ireland needed some extra provisions in order to ratify the treaty (following the failure of the first referendum in 2008, guarantees were formalised prior to the successful second referendum in 2009). Although these guarantees do not constitute an opt-out, they are also likely to be ratified in the next European Union treaty.

Former opt-outs

The United Kingdom had an opt-out from the Social Chapter, negotiated by John Major in 1991. Tony Blair abolished this opt-out immediately after coming to power in the 1997 general election.

Table

country	policy area
	Schengen Agreement	EMU	Citizenship	CSDP	PJC	Charter of Fundamental Rights
Czech Republic						• post-N
Denmark		• tbr-10	• de jure only • tbr-10	• tbr-10	• tbr-10
Ireland					• opt-in • tbr-12
Poland						• tbr-L
Sweden		• de facto
United Kingdom					• opt-in
Legend
— fully participating in policy area   — de jure opt-out in place   — de facto opt-out in place	• de facto — de facto only, still legally binding but not enforced. • de jure only — de jure only; common citizenship subsequently adopted by all members. • post-N — following coming into force of the next European Union treaty (probably an accession treaty).			• opt-in — possibility to opt-in on a case-by-case basis. • tbr-L — may be reviewed after successful ratification of the Treaty of Lisbon. • tbr-10 — to be reviewed in a referendum, likely to be held in 2010. • tbr-12 — to be reviewed in 2012.

See also

• Opting out, a similar concept in Canadian politics
• Nullification (U.S. Constitution), a related concept in United States politics

External links

• Denmark and the European Union, Danish Ministry for Foreign Affairs