Denmark As Well As Eu Judge As Well As Dwelling Identify Affairs Law: Actually Opting Dorsum In?

Steve Peers

Yesterday, the Danish Prime Minister made an announcement that Kingdom of Denmark would concur around other plebiscite on European Union matters inwards 2015. This was widely reported equally a vote on whether Kingdom of Denmark would opt dorsum inwards to European Union Justice together with Home Affairs (JHA) law. In fact, the government’s intention is to concur a vote on whether to supervene upon a complete opt out amongst a selective opt-out. This weblog post service explains the exceptional of the issue, including a consummate listing of the measures which Kingdom of Denmark powerfulness opt dorsum into if the Danish populace approves the plebiscite proposal.

The Danish opt-out effectively dates dorsum to the Danish plebiscite on the Maastricht Treaty inwards 1992. Following the initial Danish ‘no’ vote to that treaty, the EU’s Heads of State of Government adopted a Decision, which states that Kingdom of Denmark fully participates inwards European Union JHA law. This was accompanied yesteryear a statement stating that whatever transfer of powers to the European Community (as it together with thence was) would hold upwards patch of study to a plebiscite inwards Denmark. This is to a greater extent than oft than non regarded equally the footing for Denmark’s opt-out on JHA matters.

This Decision is besides oft described equally an opt-out on European Union citizenship, although it is no such thing: it exactly clarifies the human relationship betwixt Danish together with European Union citizenship. In fact, despite a widespread belief to the contrary, Kingdom of Denmark has no opt-out on European Union citizenship at all.

The JHA opt-out was formalised equally a Protocol to the Treaties at the fourth dimension of the Treaty of Amsterdam (in forcefulness 1999), together with was together with thence revised at the fourth dimension of the Treaty of Lisbon (in forcefulness 2009). It currently appears equally Protocol 22 to the Treaties.

In a nutshell, the legal seat is equally follows.

First of all, Kingdom of Denmark is saltation yesteryear the ‘Schengen’ rules abolishing edge controls betwixt almost Member States, together with measures edifice upon them, such equally the Schengen Borders Code, the EU’s visa code, the Schengen Information System together with the EU’s edge command agency, Frontex. However, it is saltation yesteryear these measures solely equally a thing of international law, non European Union law. It could pick out to opt out of novel measures inwards this area, but at that topographic point would hold upwards around unspecified retaliation if it did. It hasn’t done thence inwards practice.

Secondly, Kingdom of Denmark is non saltation yesteryear whatever other European Union measures on immigration together with asylum law, or civil cooperation, except for the measures on a standardised listing of countries whose nationals produce together with don’t request visas to instruct into the EU. However,  for a few of these measures,  Denmark is saltation instead yesteryear agency of a treaty amongst the EU: the Dublin rules on asylum applications; the Brussels Regulation on civil together with commercial jurisdiction; together with the Regulation on service of documents. It’s besides saltation yesteryear the initial Rome Convention on conflicts of law inwards contract, but non yesteryear the Regulation replacing it.

Thirdly, Kingdom of Denmark is saltation yesteryear European Union measures on policing together with criminal law adopted earlier the entry into forcefulness of the Treaty of Lisbon. This includes (as matters stand) the European Union measures establishing Europol (the European Union police line agency), Eurojust (the European Union prosecutors’ agency) together with the European Arrest Warrant.

Fourthly, Kingdom of Denmark is conversely not saltation yesteryear European Union measures on policing together with criminal law adopted after the entry into forcefulness of the Treaty of Lisbon. This includes specially European Union legislation on suspects’ rights, victims’ rights, together with the European Investigation Order. In the close future, it volition besides non hold upwards saltation yesteryear legislation re-establishing Europol, which volition presently hold upwards the patch of study of terminal negotiations betwixt the European Parliament together with the Council (on the details of that negotiation, run across the previous blog post). According to the Prime Minister, this is a exceptional argue for considering whether to exercise the opt-out.

The supposition behind her statement is that the pre-Lisbon stair out establishing Europol volition non hold upwards applicable to Kingdom of Denmark whatever longer i time a novel stair out is adopted. In fact, Article 2 of Protocol 22 says equally follows:

…acts of the Union inwards the patch of police line cooperation together with judicial cooperation inwards criminal matters adopted earlier the entry into forcefulness of the Treaty of Lisbon which are amended shall proceed to hold upwards binding upon together with applicable to Kingdom of Denmark unchanged.

However, inwards the specific illustration of European Union agencies, it is difficult to run across inwards do how Kingdom of Denmark could proceed to hold upwards business office of Europol equally it was ready patch of study to a pre-Lisbon measure, piece all of the other Member U.S. (presuming that the U.K. together with Republic of Ireland opt-in) are business office of Europol equally it was ready afresh yesteryear a post-Lisbon Regulation.

In fact, the same number is probable to arise equally regards Eurojust (the European Union prosecutors’ agency) inwards the side yesteryear side yr or so, since at that topographic point is besides a proposal to supervene upon the pre-Lisbon Decision setting upwards that trunk amongst a post-Lisbon Regulation.

What are the consequences of the opt-in? Kingdom of Denmark has the ability to denounce ‘all or part’ of the Protocol, which besides includes an opt-out relating to European Union defense forcefulness policy, without a request for a Treaty amendment. (Note that Denmark’s opt-out from the obligation to adopt the EU’s unmarried currency is start inwards a split upwards Protocol).

However, Kingdom of Denmark besides has around other choice available to it: to supervene upon the electrical current complete opt-out for post-Lisbon JHA measures non linked to the Schengen acquis amongst a selective opt-out, ie the ability to opt inwards to JHA measures on a case-by-case basis. According to press reports, this is what the Prime Minister proposes. In lite of this, it exactly isn’t accurate to say that Kingdom of Denmark would hold upwards voting to ‘give upwards its JHA opt-out’.

If the populace vote inwards favour, Kingdom of Denmark would accept the same ability that the U.K. together with Republic of Ireland accept to opt inwards to JHA measures on a case-by-case basis, either inside 3 months later those measures are proposed or at whatever fourth dimension later they are finally adopted. However, dissimilar the U.K. together with Ireland, Kingdom of Denmark volition proceed to hold upwards fully saltation yesteryear European Union measures on visa lists (ie amongst no-opt-out possibility), together with volition besides proceed to participate inwards the Schengen rules (although those rules would together with thence accept the forcefulness of European Union law, non international law, inwards Denmark).

It would hold upwards up to the Danish authorities together with parliament to create upwards one's heed what arrangements apply to opting in, equally a thing of national law. If national law permits, it is opened upwards to Kingdom of Denmark to provide, if it wishes, that its national parliament must approve every opt-in decision, mayhap yesteryear a higher bulk inwards around or all cases. The Danish authorities could besides denote inwards advance which measures it would (and would not) seek to opt inwards to.

To clarify the potential comport on of the decision, the Annex to this post service contains a consummate listing of all electrical current measures or proposals which Kingdom of Denmark could opt to participate inwards if the populace chose to vote for a selective JHA opt-out inwards identify of the electrical current consummate opt-out. Again, though, Kingdom of Denmark could pick out to participate inwards solely a little number of these measures if it wished.

While it is sometimes claimed that European Union opt-outs are non actually genuine, because Member U.S. volition appear upwards undue pressure level to opt-in to European Union measures regardless, the evidence of the finally fifteen years clearly refutes this assertion. In practice, Kingdom of Denmark together with the U.K. accept non been forced to adopt the unmarried currency, together with the U.K. together with Republic of Ireland accept opted out of a growing number of JHA measures.

Barnard & Peers: chapter 2, chapter 25, chapter 26

Annex

JHA measures which Kingdom of Denmark could opt inwards to later 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 together with content of international protection (OJ 2011 L 337/9)

4. Directive 2013/33 on reception weather condition for asylum-seekers (OJ 2013 L 180/96)

5. Regulation 604/2013 on responsibleness for asylum applications (OJ 2013 L 180/31) – nb applies to Kingdom of Denmark yesteryear agency 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 Kingdom of Denmark yesteryear agency of treaty already

8. Regulation establishing the asylum together with migration Fund (OJ 2014 L 150/168)

9. Regulation laying downwards full general provisions on the Asylum together with Migration Fund together with on the musical instrument for fiscal back upwards for police line cooperation, preventing together with combating crime, together with crisis management ((OJ 2014 L 150/112)

Irregular migration

1. Directive 2004/82 on transmitting rider data yesteryear carriers (OJ 2004 L 261/24)

2. Decision on articulation 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 data together with coordination network for Member States’ migration management services (OJ 2005 L 83/48)

5. Directive 2008/115 on mutual rules for expulsion – Returns Directive (OJ 2008 L 348/98) – nb applies to Kingdom of Denmark inwards business office already

6. Directive 2009/52 on sanctions for employers of irregular migrants (OJ 2009 L 168/24)

Legal Migration

1. Directive 2003/86 on identify unit of measurement 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 together with residence of students, volunteers together with others (OJ 2004 L 375/12)

4. Directive 2005/71 on admission of researchers (OJ 2005 L 289/15)

5. Decision on telephone substitution of asylum together with immigration data (OJ 2006 L 283/40)

6. Decision establishing Migration Network (OJ 2008 L 131/7)

7. Directive 2009/50 on the weather condition of entry together with residence of third-country nationals for the purposes of highly qualified work (‘Blue Card Directive’) (OJ 2009 L 155/17)

8. Regulation 1231/2010 extending Regulation 883/2004 on social safety for European Union citizens to third-country nationals who motility inside the European Union (OJ 2010 L 344/1)

9. Directive 2011/51 applying long-term residents’ Directive to refugees together with 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 together with enforcement of insolvency proceedings (OJ 2000 L 160/1)

2. Regulation 1347/2000 on jurisdiction over together with enforcement of matrimonial together with custody judgments (OJ 2000 L 160/19)

3. Regulation 1206/2001 on cross-border taking of evidence inwards civil together with commercial matters (OJ 2001 L 174/1)

4. Decision 2001/470 on European Judicial Network on civil together with commercial matters (OJ 2001 L 174/25)

5.  Directive 2003/8 on legal assistance (OJ 2003 L 26/41)

6. Regulation 2201/2003 on parental responsibleness (OJ 2003 L 338/1)

7. Regulation 805/2004 on European enforcement fellowship (OJ 2004 L 143/15)

8. Regulation 1896/2006 creating a European fellowship for payment physical care for (OJ 2006 L 399/1)

9. Regulation 861/2007 establishing a European little claims physical care for (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 together with conclusion of external treaties relating to maintenance, divorce together with parental responsibleness (OJ 2009 L 200/25)

15. Regulation 664/2009 on Member States’ negotiation together with conclusion of external treaties relating to conflict of laws equally regards contractual together with non-contractual obligations (OJ 2009 L 200/46)

16. ‘Rome III’ Regulation 1259/2010 on choice of law inwards divorce proceedings (OJ 2010 L 343/10)

17. Regulation 650/2012 on choice of law together with jurisdiction inwards succession proceedings (OJ 2012 L 201/107)

18. Regulation 1215/2012 on civil together with commercial jurisdiction (OJ 2012 L 351/1) - – nb applies to Kingdom of Denmark yesteryear agency 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 Kingdom of Denmark yesteryear agency of treaty already

21. Regulation on European occupation organization human relationship preservation orders

Criminal law together with policing

Directives

1. Directive 2010/64 on the correct to interpretation together with translation inwards the framework of criminal proceedings (OJ 2010 L 280/1)

2. Directive 2011/36 on trafficking inwards persons (OJ 2011 L 101/1)

3. Directive 2011/82 on telephone substitution of data 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 fellowship (OJ 2011 L 338/2)

6. Directive 2012/13 on the correct to data on criminal proceedings (OJ 2012 L 142/1)

7. Directive 2012/29 on offense victims’ rights (OJ 2012 L 315/57)

8. Directive 2013/40 on attacks on data systems (OJ 2013 L 218/8)

9. Directive 2013/48 on access to lawyer together with communication rights (OJ 2013 L 294/1)

10. Directive 2014/41 on European investigation fellowship (OJ 2014 L 130/1)

11. Directive 2014/42 on freezing together with confiscation of criminal proceeds (OJ 2014 L 127/39)

12. Directive 2014/57 on criminal sanctions against marketplace 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 musical instrument for fiscal back upwards for police line cooperation, preventing together with combating crime, together with 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 together with asylum

1. Directive on admission of students, researchers together with 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’ physical care for to the number of maintenance obligations (COM (2005) 648, fifteen Dec. 2005)

2. Commission proposal for Regulation on choice of law together with jurisdiction on matrimonial belongings (COM (2011) 126, sixteen Mar. 2011)

3. Commission proposal for Regulation on choice of law together with jurisdiction on registered partnerships (COM (2011) 127, sixteen 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 little claims together with fellowship for payment Regulations (COM (2013) 794, xix Nov. 2013)

Criminal law

1. Proposal for Directive on the correct to interpretation together with translation inwards the framework of criminal proceedings (COM (2010) 82, nine March 2010)

2. Proposal for Directive on rider advert records (COM (2011) 32, 2 Feb. 2011)

3. Proposal for Directive on protection of European Union fiscal interests (COM (2012) 363, xi July 2012)

4. Proposal to improve 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 equally suspects (COM (2013) 822, 27 Nov. 2013)

7. Proposal on provisional legal assistance (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 listing does non include measures which accept expired or been replaced (or which volition hold upwards replaced equally of July 2015). It besides does non include international treaties amongst 3rd States, since at to the lowest degree inwards around cases, Kingdom of Denmark has parallel arrangements inwards identify amongst the countries concerned. The almost of import treaties inwards query concern readmission, visa facilitation, the Hague Convention on maintenance together with treaties on mutual assistance, extradition together with telephone substitution of police line information.

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