Denmark As Well As Eu Jurist As Well As Habitation Affairs Law: Details Of The Planned Referendum

 

 

Steve Peers

Danish participation inward cross-border criminal law measures is symbolised yesteryear 'The Bridge', the 'Nordic Noir' serial well-nigh cross-border cooperation inward criminal matters betwixt Kingdom of Denmark as well as Sweden. But due to the changes inward European Union law inward this field, that cooperation mightiness before long endure jeopardised. As a result, inward the close future, Kingdom of Denmark volition inward regulation endure voting on whether to supplant the electrical flow nearly consummate opt-out on European Union Justice as well as Home Affairs (JHA) law alongside a partial, selective opt-out. I stimulate got previously blogged on the implications of this excogitation inward full general terms, but it’s forthwith clear just what this vote volition endure about.

First of all, a curt recap of the overall framework (for to a greater extent than detail, run into that previous weblog post). Back inward 1992, Kingdom of Denmark obtained an opt-out from the unmarried currency, defense forcefulness as well as aspects of JHA law (it’s widely believed that it also obtained an opt-out from European Union citizenship, but this is a ‘Euromyth’). These opt-outs were formalised inward the shape of a Protocol attached to the European Union Treaties equally run of the Treaty of Amsterdam. The JHA opt-out was as well as then amended yesteryear the Treaty of Lisbon.

At present, Kingdom of Denmark participates in: the European Union policing as well as criminal law measures adopted before the entry into forcefulness of the Treaty of Lisbon; measures relating to the Schengen edge command organisation (as  matter of international law, non European Union law); the European Union rules on visa lists (as a affair of European Union law); as well as the EU’s Dublin rules on allotment of asylum applications, ‘Brussels’ rules on civil jurisdiction as well as legislation on service of documents (in the shape of treaties alongside the EU). In contrast, Kingdom of Denmark does non – as well as cannot – participate inward other European Union rules on immigration as well as asylum law or cross-border civil law, or policing as well as criminal law rules adopted since the entry into forcefulness of the Treaty of Lisbon.

The Protocol on Denmark’s legal seat either allows it to repeal its JHA opt-out entirely, or selectively. If it chooses to repeal the opt-out selectively, it would as well as then endure able to opt inward to JHA measures on a case-by-case basis, similar the Britain as well as Ireland, although (unlike those states) it would stay fully leap yesteryear the Schengen rules. Indeed, those rules volition as well as then apply equally a affair of European Union law inward Denmark, non equally a affair of international law.

In practice, spell Danish governments stimulate got promised for a spell to handgrip a plebiscite on the JHA opt-out, the concrete plans to handgrip ane inward the close hereafter were triggered inward lite of the planned European Union legislation to supplant the electrical flow rules establishing Europol, the European Union police pull agency, alongside novel legislation (on that proposal, run into here).  This led to an understanding betwixt the authorities parties as well as several opposition parties (excluding the far-right Danish Peoples’ Party) known equally the ‘Agreement on Kingdom of Denmark inward Europol’ (for the text, run into here). This understanding states that the plebiscite volition accept house after the adjacent full general election (which must endure held yesteryear September 2015), as well as no afterwards than 31 March 2016. The ‘main reason’ for the plebiscite is to allow Kingdom of Denmark to opt inward to the novel Europol rules, but the parties also agreed to written report whether Kingdom of Denmark should opt inward to other European Union civil, criminal as well as policing laws which currently don’t apply. However, the parties agreed that Kingdom of Denmark should non opt inward to whatever European Union immigration or asylum law (besides Schengen, which already applies).

This analysis has forthwith been completed (see the text inward Danish here), as well as the parties stimulate got agreed that Kingdom of Denmark would apply to opt inward to 22 European Union laws if the plebiscite is successful. Conversely, they stimulate got agreed non to opt inward to 10 other European Union laws.

As regards civil cooperation, the parties stimulate got agreed to opt inward to large bulk of European Union measures, equally regards: insolvency; payment orders; modest claims; the European enforcement order; mediation; the Rome Regulation (on conflicts of law concerning contract); the Rome II Regulation (on conflicts of law concerning non-contractual liability); external relations; protection orders; inheritance; maintenance proceedings; parental responsibility; as well as concern human relationship preservation orders. It should endure noted that changes to the insolvency proceedings regulation are well-nigh to endure formally adopted, as well as changes to the modest claims rules volition probable endure agreed afterwards this year; presumably the understanding also entails opt-ins to the existing legislation equally amended.

In contrast, the parties agreed not to opt inward to legislation on legal aid inward cross-border proceedings, or to the Rome III Regulation on conflicts of law inward divorce cases. Nor stimulate got they agreed yet on whether to opt inward to the pending proposals relating to jurisdiction as well as pick of law over marital property, as well as the holding of civil partnerships, inward the lawsuit of human relationship breakdown. In general, the recent understanding states that decisions to opt inward to measures which stimulate got non yet been adopted depend on a hereafter consensus of the relevant parties, or endorsement inward a full general election.

As for policing as well as criminal law, the parties concord to opt inward to all measures concerning noun criminal law as well as most measures concerning European Union agencies as well as usual recognition. In particular, they concord to opt into 7 Directives, regarding: the European Investigation Order; protection orders; trafficking inward persons; sexual abuse of children; cyber-crime; marketplace seat abuse; as well as counterfeiting the euro. Conversely, they dominion out opting inward to the legislation on criminal offense victims’ rights, the 3 Directives on suspects’ rights (concerning interpretation as well as translation, access to a lawyer as well as the correct to information) as well as the rules on confiscation of criminal assets. They also dominion out opting inward to the legislation on European Union funding inward JHA matters.

They stimulate got partly agreed on hereafter measures inward this field, agreeing to opt inward to the Regulations forthwith nether tidings on Europol as well as Eurojust (the European Union prosecutors’ agency) as well as the Directive on rider refer records, but to opt out of the legislation establishing the European Public Prosecutor. The Commission has also proposed legislation on the European Police College, fraud against European Union funds as well as drug trafficking, along alongside 3 to a greater extent than suspects’ rights measures (concerning childrens’ rights, the presumption of innocence as well as legal aid). Decisions on those measures volition in ane lawsuit again depend upon on a hereafter consensus of the relevant parties, or endorsement inward a full general election.

The parties’ clarification of their intentions provides useful certainty for the Danish world when it has the chance to vote on these issues. In general, inward criminal matters Kingdom of Denmark would endure participating inward the European Union measures assisting the prosecution, without whatever counterbalance yesteryear way of recent legislation regarding the rights of victims or suspects. Similarly it would even thence endure participating inward the Schengen rules on external edge controls as well as the abolition of internal edge checks, without whatever of the accompanying harmonisation of immigration as well as asylum law that applies to other Schengen U.S.A. which are European Union members. On the whole, Kingdom of Denmark would also endure participating inward to a greater extent than JHA legislation than the Britain as well as Republic of Ireland – non simply equally regards total participation inward Schengen (as is already the case), but also equally regards the European Union legislation on inheritance, concern human relationship preservation, investigation orders, marketplace seat abuse, currency counterfeiting as well as Eurojust, all of which ane or both of the Britain as well as Republic of Ireland stimulate got opted out of. On the other hand, the Britain as well as Republic of Ireland stimulate got opted inward to the European Union legislation on criminal offense victims’ rights, some of the legislation on suspects’ rights as well as the kickoff stage of European Union asylum law. Given that Republic of Ireland participates inward the unmarried currency, a Danish 'yes' to selective participation inward JHA law would cement the UK's seat equally the main non-participant inward European Union laws which bind most other Member States.

 

Barnard & Peers: chapter 26

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