Roadblocks to progress
The Danes are likely to have a frustrating six months dealing with justice and home affairs.
Justice and home affairs was to have been a priority area for Denmark during its presidency of the Council of Ministers, but the eurozone crisis has derailed this plan. Even without that distraction, making progress might have been difficult. The area is a minefield of controversial issues, from asylum, immigration and border control to civil law and judicial and police co-operation. The rivalry between the EU’s institutions over competences is intense. And there is a constant risk that an issue will suddenly acquire dramatic significance.
Poland has had to deal with just such a problem during its presidency, when the Dutch government vetoed Bulgaria and Romania’s application to join the Schengen area of borderless travel. Schengen enlargement could make more rapid progress in 2012: if a report by the European Commission in February on the state of the judiciary in the two countries is positive, it might be enough for the Dutch to drop their opposition.
Extra safeguards might have to be added to secure Dutch backing, such as a staggered entry for Bulgaria and Romania, with airports the first to lift passport checks, and land borders being opened only later. (Finland, the only member state to support the Dutch ‘No’, has dropped its opposition.)
EU leaders are scheduled to discuss the question at their March summit in Brussels, and diplomats say that a positive decision looks increasingly likely. Schengen could provide a success for Denmark’s presidency – albeit one in which it played only a supporting role.
Internal rows
Schengen could turn out to be one of the few justice and home affairs matters where progress is achieved in the first half of 2012. And even Schengen has become a playground for squabbling between the Commission, the member states and the European Parliament. Commission proposals to reform its oversight have run into stiff opposition both from member states and from MEPs. The same is true of other proposals, for example a revision of the Dublin II regulation, which obliges member states to send asylum-seekers back to the country through which they entered the EU.
National interior ministers meeting in Brussels on Tuesday (13 December) failed to make progress on the matter. But without a resolution, failure awaits a plan by Cecilia Malmström, the European commissioner for home affairs, to launch a Common European Asylum System by the end of 2012. Denmark, which has its own, complex relationship with EU justice and home affairs matters, will seek to be as honest a broker as it can be in these discussions – but that may not be enough.
Schengen
Denmark, unlike Ireland and the UK, is a signatory of the Schengen agreement and has been fully implementing its provisions since the end of 2000. But, for political reasons, it is doing so as a matter of international law rather than of the EU’s own law.
As a consequence, Denmark, despite being a full member of Schengen and of the EU, has no voting rights in decisions on the Schengen area – the same as Iceland, Norway and Switzerland, the three non-EU members that participate in Schengen. Denmark also has the right to opt in to any new or amended Schengen rules. To date, it has always done so.
Opt-out
Denmark is exempt from most EU legislation in justice and home affairs under a protocol to the EU’s Treaty of Amsterdam, which took effect in 1999. Unlike Ireland and the UK, Denmark does not have a right to opt in to particular pieces of legislation, although it has used international agreements with the EU to participate, for example, in the EU’s Dublin regulation, which establishes which EU member state is responsible for asylum applications.
The political context has changed since the 1990s, when Denmark’s centre-left government under Poul Nyrup Rasmussen viewed the opt-out as essential to shield the country’s liberal immigration policy against a harder European line.
Denmark has in the meantime adopted tough rules on immigration and asylum, and the new centre-left government views the EU’s policies in the field as a moderating influence on its domestic politics. It has pledged to hold a referendum on the justice and home affairs opt-out, as well as on an opt-out on defence.