Opt-outs in the European Union
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).
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.
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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
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. 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.
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.
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 Common Security and Defence Policy (CSDP), 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 CSDP 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, does not participate in the European Defence Agency. 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 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. A referendum is tentatively planned for the last half of 2012, after the Danish presidency of the European Council.
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 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. He 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.
Area of freedom, security and justice – Ireland and the United Kingdom
Ireland and the United Kingdom do not participate in 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 decision will be reviewed in Ireland three years after the treaty enters into force. Both states can, however, opt-in on these issues 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 Prime Minister of the UK David Cameron has stated that he intends to exercise this 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 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 at the time of the next accession treaty to include the Czech Republic.
A draft protocol to this effect was proposed by the European Council and is currently under consideration by the European Parliament. However, the Czech Senate approved a resolution in October 2011 which opposed their accession to the protocol. In October 2012, the European Parliament Constitutional Affairs Committee voted not to recommend 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 is scheduled to be voted on by Parliament during its session on 12 March 2013.
|Schengen Area||EMU||Citizenship||CSDP||AFSJ||Charter of Fundamental Rights|
|Czech Republic||• post-N|
|Denmark||• de jure only
• tbr-ref
|• tbr-ref||• tbr-ref|
|Sweden||• de facto|
|United Kingdom||• opt-in|
— fully participating in policy area
— proposed opt-out
— de facto opt-out in place
— de jure opt-out in place
• de facto – de facto only, still legally binding but not enforced.
• opt-in – possibility to opt in on a case-by-case basis.
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