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, three states have such opt-outs: Denmark (three opt-outs), Republic of Ireland (two opt-outs) and Poland (one opt-out). The United Kingdom had various opt-outs before leaving the Union.

  State with an opt-out

  State without an opt-out

This is distinct from the enhanced cooperation, 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.

Current opt-outs

As of 2020, three states have formal opt-outs from a total of five policy areas.

Schengen Agreement – Ireland

  EU member states participating

  EU member states not participating but obliged to join

  EU member states with an opt-out

  non-EU member states participating

  non-EU member states de facto participating

  non-EU member states with an open border

The Schengen Agreement abolished border controls between member states. When the Treaty of Amsterdam of 1997 incorporated it into the EU treaties, Ireland and the United Kingdom (a member state at the time) received opt-outs from implementing the Schengen acquis as they were the only EU member states which had not signed the agreement. Ireland joined the UK in adopting this opt-out to keep their border with Northern Ireland open via the Common Travel Area (CTA).[1][2][3] However, the protocol on the Schengen acquis specified that they could request to opt into participating in Schengen measures on a case-by-case basis if they wished, subject to unanimous approval of the other participating states.

The UK formally requested to participate in certain provisions of the Schengen acquis – Title III relating to Police Security and Judicial Cooperation – in 1999, and this was approved by the Council of the European Union on 29 May 2000.[4] The United Kingdom's participation in some of the previously approved areas of cooperation was approved in a 2004 Council decision that came into effect on 1 January 2005.[5] A subsequent Council decision in 2015 approved the implementation of the provisision on data protection and Schengen Information System to the UK.[6] Ireland initially submitted a request to participate in the Schengen acquis in 2002, which was approved by the Council of the European Union.[7] A Council decision in 2020 approved the implementation of the provisision on data protection and Schengen Information System to Ireland.[8]

The protocol on the Schengen acquis and protocol on Denmark of the Treaty of Amsterdam stipulate that Denmark, which had signed an accession protocol the Schengen Agreement, would continue to be bound by the provisions and would have the option to participate in future developments of the Schengen acquis, but would do so on an intergovernmental basis rather than under EU law for the provisions which fell under the Justice and Home Affairs pillar, from which Denmark obtained an opt-out. However, the protocol stipulates that if Denmark chooses not to implement future developments of the Schengen acquis, the EU and its member states "will consider appropriate measures to be taken".[9] In the negotiations for the Lisbon Treaty, Denmark obtained an option to convert its Area of freedom, security and justice (which had incorporated the former Justice and Home Affairs pillar) opt-out into a flexible opt-in modelled on the Irish and British opt-outs. The Protocol stipulates that if Denmark exercises this option, then it will be bound by the Schengen acquis under EU law rather than on an intergovernmental basis. In a referendum on 3 December 2015, 53.1% rejected exercising this option.[10]

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,[11] there were calls for Ireland to join the Schengen Area.[3] However, in response to a question on the issue, Bertie Ahern, the then-incumbent 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'."[3][12] The opt-out was criticised in the United Kingdom for hampering the country's capabilities in stopping transnational crime through the inability to access the Schengen Information System.[13] Following the United Kingdom's withdrawal from the European Union, Ireland is the only member state with an opt-out from the Schengen Agreement.

Economic and Monetary Union – Denmark

Eurozone participation

European Union (EU) member states

  19 in the eurozone.

  2 in ERM II, without opt-outs (Bulgaria and Croatia).

  1 in ERM II, with an opt-out (Denmark).

  5 not in ERM II, but obliged to join the eurozone on meeting convergence criteria (Czech Republic, Hungary, Poland, Romania, and Sweden).

Non-EU member states

  4 using the euro with a monetary agreement (Andorra, Monaco, San Marino, and Vatican City).

  2 using the euro unilaterally (Kosovo[lower-alpha 1] and Montenegro).

All member states other than Denmark, have either adopted the euro or are legally bound to do so. The Maastricht Treaty of 1992 included protocols on the UK[1] (a member state at the time) and Denmark giving them opt-outs with the right to decide if and when they would join the euro. Denmark subsequently notified the Council of the European Communities of their decision to opt out of the euro, and this was included as part of the 1992 Edinburgh Agreement, a Decision of Council, reached following the Maastricht Treaty's initial rejection in a 1992 Danish referendum. The purpose of the agreement was to assist in its approval in a second referendum, which it did. The Danish decision to opt out was subsequently formalized in an amended protocol as part of the Lisbon Treaty.

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%.

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.[14] The policy of the 2010s coalition government, elected in 2010, was against introducing the euro prior to the 2015 general election.[15] The UK ultimately withdrew from the European Union in 2020, leaving Denmark as the only state with the opt-out.

While the remaining states are all obliged to adopt the euro eventually by the terms of their accession treaties, since membership in the Exchange Rate Mechanism is a prerequisite for euro adoption, and joining ERM is voluntary, these states can ultimately control the timing of their adoption of the euro by deliberately not satisfying the ERM requirement.

Defence – Denmark

  States which participate in the CSDP

  State with an opt-out from the CSDP

The Edinburgh Agreement of 1992 included a guarantee to Denmark that they would not be obliged to join the Western European Union, which was responsible for defence. Additionally, the agreement stipulated that Denmark would not take part in discussions or be bound by decisions of the EU with defence implications. The Treaty of Amsterdam of 1997 included a protocol which formalised this opt-out from the EU's Common Security and Defence Policy (CSDP). As a consequence, Denmark is excluded from foreign policy discussions with defence implications and does not participate in foreign missions with a defence component.[16]

Charter of Fundamental Rights of the European Union – Poland

  States parties to the Charter

  States with an opt-out from the Charter

Although not a full opt-out, both Poland and former member state the United Kingdom secured a protocol which clarified 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.[17] 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,[18] while the UK was worried that the Charter might be used to alter British labour law, especially as relates to allowing more strikes.[19] The European Scrutiny Committee of the British House of Commons, including members of both the Labour Party and the Conservative Party, cast doubts on the protocol's text, asserting that the clarification might not have been worded strongly and clearly enough to achieve the government's aims.[20][21][22] The UK ultimately withdrew from the European Union in 2020, leaving Poland as the only state with the opt-out.

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.[23] 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,[24] 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), 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.[25] 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.[26] Tusk later clarified that he may sign up to the Charter after successful ratification of the Treaty of Lisbon has taken place.[27] 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.[28] 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.[29] In April 2012, Leszek Miller, leader of the Democratic Left Alliance, stated that he would sign the charter if he comes to power.[30] 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."[31]

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) fearing the Charter would allow the families of Germans who were expelled from territory in the modern-day Czech Republic after the Second World War to challenge the expulsion before the EU's courts,[32] though legal experts have suggested that the laws under which the Germans were expelled, the Beneš decrees, did not fall under the jurisdiction of EU law.[33] In October 2009, EU leaders agreed to amend the protocol to include the Czech Republic at the time of the next accession treaty.[34][35]

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,[36] and a draft amendment to this effect was proposed by the European Council.[37] However, the Czech Senate passed a resolution in October 2011 opposing their accession to the protocol.[38] 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.[39] On 11 December 2012, a third draft of the European Parliament's committee report was published,[40] and on 22 May 2013[37] the Parliament voted in favour of calling on the European Council "not to examine the proposed amendment of the Treaties".[36][37][41] 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.[42] In January 2014, the new Czech Human Rights Minister Jiří Dienstbier Jr. said that he would attempt to have his country's request for an opt-out withdrawn.[43][44] This was confirmed on 20 February 2014 by the new Prime Minister Bohuslav Sobotka, who withdrew the request for an opt-out during a meeting with President of the European Commission José Manuel Barroso[45][46][47][48] shortly after his newly elected government won the confidence of Parliament.[49] In May 2014, the Council of the European Union formally withdrew their recommendation to hold an Intergovernmental Conference of member states to consider the proposed amendments to the treaties.[50][51][52][53]

Area of freedom, security and justice – Denmark and Ireland

  States which fully participate in the AFSJ

  State with an opt-out that can opt in on a case-by-case basis in the AFSJ

  State with an opt-out from the AFSJ

Denmark and Ireland have opt-outs from the area of freedom, security and justice. The United Kingdom also had an opt-out prior to its withdrawal from the European Union in 2020.

Ireland has 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 (JHA) pillar.[54] This allows it to opt in or out of legislation and legislative initiatives on a case-by-case basis, which it usually did, except on matters related to Schengen.[55] The opt-out from the JHA policy area was originally obtained by Ireland and the United Kingdom in a protocol to the Treaty of Amsterdam of 1997, and was retained by both with the Treaty of Lisbon.[56]

Under Protocol 36 of the Lisbon Treaty, the UK had the option to opt out of all the police and criminal justice legislation adopted prior to the treaty's entry into force which had not been subsequently amended. The decision to opt out had to be made at least six months prior to the aforementioned measures coming under the jurisdiction of the European Court of Justice on 1 December 2014. The UK informed the European Council of their decision to exercise their opt-out in July 2013,[57] and as such the impacted legislation ceased to apply to the UK as of 1 December 2014.[58][59] While the protocol only permitted the UK to either opt out from all the legislation or none of it, they subsequently opted back into some measures.[60][61][62]

In contrast, Denmark has a more rigid opt-out from the area of freedom, security and justice. While the Edinburgh Agreement of 1992 stipulated that "Denmark will participate fully in cooperation on Justice and Home Affairs",[63] the Treaty of Amsterdam of 1997 included a protocol which exempt it, as a matter of EU law, from participating in these policy areas, which are instead conducted on an intergovernmental basis with Denmark. The exception is the 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.[64] A number of other parallel intergovernmental agreements have been concluded between the EU and Denmark to extend to it EU Regulations adopted under the area of freedom, security and justice, which Denmark can't participate in directly due to its opt-out. These include the Brussels Convention and Dublin Convention.

In the negotiations of the Lisbon Treaty, Denmark obtained an amendment to the protocol to give it the option to convert its opt-out into a flexible opt-in modelled on the Irish and British opt-outs.[65] In a referendum on 3 December 2015, 53.1% rejected exercising of this option.[10]

Legal guarantees

Several times an EU member state has faced domestic public opposition to the ratification of an EU treaty leading to its rejection in a referendum. To help address the concerns raised, the EU has offered to make a "legal guarantee" to the rejecting state. These guarantees did not purport to exempt the state from any treaty provisions, as an opt-out does. Instead they offered a clarification or interpretation of the provisions to allay fears of alternative interpretations.

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 Maastricht Treaty.[66] The Agreement was in the form of a Decision of Council.[67] The part of the agreement, which only applied to Denmark, 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 guarantee to Denmark on citizenship was never incorporated into the treaties, but the substance of this statement was subsequently added to the Amsterdam Treaty and applies to all member states. Article 2 states that:

Citizenship of the Union shall complement and not replace national citizenship.

Irish protocol on the Lisbon Treaty

Following the rejection of the Treaty of Lisbon by the Irish electorate in 2008, a number of guarantees (on security and defence, ethical issues and taxation) were given to the Irish in return for holding a second referendum. On the second attempt in 2009 the treaty was approved. Rather than repeat the ratification procedure, the guarantees were merely declarations with a promise to append them to the next treaty.[68][69]

The member states ultimately decided not to sign the protocol alongside the Croatian accession treaty, but rather as a single document. A draft protocol to this effect[70] was proposed by the European Council and adopted by the European Parliament in April 2012.[71] An Intergovernmental Conference followed on 16 May,[72] and the protocol was signed by all states of the European Union between that date and 13 June 2012.[73] The protocol was planned to take effect from 1 July 2013, provided that all member states had ratified the agreement by then,[74] but it only entered into force on 1 December 2014.[75]

Former opt-outs

The Major ministry secured the United Kingdom an opt-out from the protocol on the Social Chapter of the Maastricht Treaty before it was signed in 1992.[76] The Blair ministry abolished this opt-out after coming to power in the 1997 general election as part of the text of the Treaty of Amsterdam.[77][78]

Former proposals

Following the announcement by the government of the United Kingdom that it would hold a referendum on withdrawing from the European Union, an agreement was reached between it and the EU on renegotiated membership terms should the state vote to remain a member. In addition to a number of amendments to EU Regulations which would apply to all states, a legal guarantee would be granted to the UK that would explicitly exempt it from the treaty-stated symbolic goal of creating an "ever closer union" by deepening integration.[79] This guarantee was included in a Decision by the European Council, with the promise that it would be incorporated into the treaties during their next revision.[80] However, following the referendum, in which the UK voted to leave the EU, per the terms of the Decision the provisions lapsed.

Summary table

Policy opt-outs of European Union member states

Country	# of opt-ins or opt‑outs	Policy area
		Schengen Area	Economic and Monetary Union (EMU)	Security and Defence Policy (CSDP)	Area of freedom, security and justice (AFSJ)	Charter of Fundamental Rights	Social Chapter
Denmark	3	Opt-out (intergovernmental agreement)	Opt-out	Opt-out	Opt-out	No opt-out	No opt-out
Ireland	2	Opt-out (opt-in)	No opt-out	No opt-out	Opt-out (opt-in)	No opt-out	No opt-out
Poland	1	No opt-out	No opt-out	No opt-out	No opt-out	Opt-out	No opt-out
United Kingdom †	4	Opt-out (opt-in)	Opt-out	No opt-out	Opt-out (opt-in)	Opt-out	Former opt-out
Legend
Opt-out (opt-in)  — opt-in – possibility to opt in on a case-by-case basis  Opt-out  – opt-out in place  Former opt-out  – former opt-out that was subsequently abolished  Opt-out (intergovernmental agreement)  – participates on an intergovernmental basis, but No opt-outt under EU law  No opt-out  – fully No opt-out in policy area † - No opt-out longer a member state of the European Union, opt-outs shows status at the time of UK withdrawal from the EU

See also

• Freedom of movement for workers
• Mechanism for Cooperation and Verification in the European Union
• Multi-speed Europe
• Nullification (U.S. Constitution), a related concept in United States politics
• Opting out, a similar concept in Canadian politics
• Special member state territories and the European Union
• Brexit
• United Kingdom opt-outs from EU legislation

Notes

1. Kosovo is the subject of a territorial dispute between the Republic of Kosovo and the Republic of Serbia. The Republic of Kosovo unilaterally declared independence on 17 February 2008. Serbia continues to claim it as part of its own sovereign territory. The two governments began to normalise relations in 2013, as part of the 2013 Brussels Agreement. Kosovo is currently recognized as an independent state by 98 out of the 193 United Nations member states. In total, 113 UN member states recognized Kosovo at some point, of which 15 later withdrew their recognition.

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Further reading

• Howarth, David (1994). "The Compromise on Denmark and the Treaty on European Union: A Legal and Political Analysis". Common Market Law Review. 34 (1): 765–805.

• Butler, Graham (2020). "The European Defence Union and Denmark's Defence Opt-out: A Legal Appraisal". European Foreign Affairs Review. 25 (1): 117–150.

External links

• Eurofound – Opt-out
• Denmark and the European Union, Danish Ministry for Foreign Affairs