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The diplomacy of opting out: Ambiguous attempts at avoiding Europeanization

Paper presented at the British International Studies Association Annual Conference 2006

University of Cork

Panel 3.12: ‘National Foreign Policies in the EU (I)’ Tuesday, 19 December 2006, 11-12:30 pm.

Rebecca Adler-Nissen

PhD Candidate, Department of Political Science, University of Copenhagen Visiting Researcher, Department of Social and Political Sciences, European University Institute

Email: ran@ifs.ku.dk

Draft. Comments very welcome. Abstract When the Maastricht Treaty granted substantial opt-outs to a number of member states, legal scholars described it as a ‘hijacking’ of the acquis communitaire. Along the same lines, political scientists have analysed the (potential) problematic consequences of opt-outs from the EU’s basic treaties in terms of national marginalisation and European fragmentation. This paper examines the formal and informal practices of two champions of opting out – the United Kingdom and Denmark – in the area of Justice and Home Affairs. Within this policy-area, both countries have on the surface chosen to avoid Europeanization in selected parts in order to safeguard national sovereignty. However, by combining a two-way Europeanization approach with insights from constructivist theories of socialization this paper suggests that opting out does not necessarily imply that member states are out in the cold. It is argued that in practice both the UK and Denmark take part in the shaping of new EU legislation even in politically sensible policies covered by their opt-outs. These practices raise questions on the relationship between formal rules and informal behaviour in the European Union.

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Introduction

National opt-outs are controversial ways of handling national differences within the European Union. When a country refuses to join the other member states in a particular area of community cooperation, national exemptions from treaty provisions may be granted in order to reach a final agreement on a new treaty. Once a country has opted out of EU legislation, its representatives have to manage these self-imposed exemptions and their diplomatic practices reveal interesting dynamics of cooperation within the EU. Opt-outs can be defined as exemptions from a treaty provision or a directive granted to a member state that does not wish to join the other member states in a particular area of community cooperation. An opt-out can then be opposed to less dramatic temporary exceptions to, or exemptions from, a regulation, directive or treaty provision in transition periods such as the ones in extending the Common Agricultural Policy (CAP) to Eastern Europe. Opt-outs are rarely used because of their dramatic consequences, possibly leading to a permanent divide between a centre and periphery in the European Union (Stubb 2002: 30-34).1 Opt-outs reveal a lack of unity within the Union and a clash between different national visions for the EU. Not only politically, but also theoretically opt-outs are highly disputed. In the legal debate, opt-outs are feared to lead to a Europe in ‘bits and pieces’, which is seen as a democratic retrogression threatening the transparency and effectiveness of the EU (Curtin 1993; Monar 1997; Boer 1997; Witte 2002; Hine 2001). Carried further, the argument may be that opt-outs lead to a split in the EU between A and B members. Given the recent enlargement of the EU and its increasing heterogeneity, as well as the growing popular scepticism towards further deepening and homogenisation, it becomes more and more pertinent for a future Union to understand flexibility and its implications.

This paper examines the practices of the two champions of opting out, the United Kingdom and Denmark in the area of Justice and Home Affairs (JHA). Within this policy-area, both countries have on the surface chosen to avoid Europeanization in selected policy-areas in order to safeguard national sovereignty. However, this paper suggests that opting out does not necessarily imply that member states are out in the cold. The central question is therefore how member states, despite their opt-outs, engage in processes of Europeanization within policy-areas covered by their opt-outs. The aim is to examine and criticise the prevailing idea that opt-outs on the one hand ‘protect’ member states from unwanted Europeanization and on the other hand ‘exclude’ them from political influence. Unlike most of the existing accounts of opt-outs, which either take the perspective of the legal coherence of the European Union (Boer and Corrado 1999; Curtin 1993; Monar 1997; Walker 1998) or conceptualise opt-outs in their particular political domestic context (Hedetoft 2000; Hansen 2002; Wiener 2000), this paper explores the diplomacy of opting out by looking at both European and domestic level dynamics. The diplomacy of opting out is used as a broad term for the Europeanization strategies employed by member states that have opted out or in to EU legislation. Theoretically, the paper applies an approach, which combines Europeanization theory with constructivist theories of socialization in international relations. Based on an original data set of interviews with British and Danish officials and two case studies, this paper argues that member states

1 For detailed conceptualisations of different types of flexibility, see Stubb (2002), Tuytschaever (1999) or Warleigh (2002).

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opting out of JHA are not necessarily marginalised or external to Europeanization processes. Actually, both the UK and Denmark take part in the shaping of new EU legislation even in politically sensible policies covered by their JHA opt-outs. These practices raise questions of the relationship between formal rules and informal norms in the European Union.

The remainder of the paper is organized as follows. The next section situates the complicated British and Danish opt-outs from JHA in their historical and political context. The second section provides a concise summary of the theoretical argument and develops hypotheses on the way opt-outs impact on member states responses and strategies towards Europeanization. The third section contains the analysis of the British and Danish management of their JHA opt-outs. Finally, a brief concluding section summarizes how member states opting out may still be contributing and subject to Europeanization within an area where they have formally opted out.

The champions of opting out

Since the beginning of the 1990s, the United Kingdom and Denmark have been champions of opting out from the EU’s basic treaties. The British and Danish opt-outs can be seen as emblematic of the two countries’ reluctant approach to European integration, clinging to their precious national sovereignty (Gstöhl 2002: 15-16; Hansen 2002: 73). The proliferation of British opt-outs in the 1990s has contributed to the image of the UK as the ‘awkward partner’, and this may refer to everything from the particular British euroscepticsm (Risse 2002) to John Major’s hard bargaining position at Maastricht, where the UK refused to join the EMU (George 1998; see also Rosamond 2004: 197-198; Geddes 2004; Allen 2005). Because of its opt-outs, Denmark also seems to require a special label in the literature, which underlines the ‘paradoxes’ and ‘tensions’ in Danish EU policy (Kelstrup 2006; Miles 2005b: 99; Kelstrup and Branner 2000: 14-16; Larsen 2006: 8; Tonra 2001). A skim through the treaties reveals that seven out of the nine treaty protocols, which contain national opt-outs, concern United Kingdom, Ireland and Denmark.

While all opt-outs stem from the desire to safeguard national sovereignty, the underlying intentions behind the different opt-outs are rooted in particular concerns for national political and cultural institutions, practices and identities.2 The British position on the JHA prior to the intergovernmental conference on the Maastricht Treaty was determined by a societal and political consensus on the value of sovereignty within this area (Blair 1999: 166; Gstöl 2002: 15). Ireland has half-heartedly had to follow the UK when it opted out of JHA in order to keep the Common Travel Area, but the Irish position will not be considered further in this paper.3 The opt-out/in of the UK from JHA represents what a two-level game approach would call a voluntary defection where a state led by a political leader does not ratify or implement an agreement (Putnam 1988; see also König and Hug 2000).4 The negative British stance towards the Schengen cooperation has been relatively stable

2 The different opt-outs imply that the UK does not participate in the third phase of the European Monetary Union (EMU), is not part of Schengen cooperation and has an opt-out from legislation on immigration, asylum and civil law. 3 For an interesting account of how Ireland has been forced to follow the UK in the area of JHA in order to save the Common Travel Area, see Meehan (2000). 4 The opt-out/in grants Ireland and the United Kingdom a higher degree of flexibility than any previous forms of differentiation within the context of the treaties (Monar 2000: 10).

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since the 1980s where Margaret Thatcher refused to remove the border controls towards other member states.5 While the parliamentary victory of the Labour government in 1996 represented a change towards a more pro-active stance as the UK agreed to incorporate the Schengen acquis into the Amsterdam Treaty, British participation into Schengen was not on the table (Thym 2004: 90). Instead, the British government negotiated a complete opt-out from all JHA in the Amsterdam Treaty, but at the same time got the possibility of a case-by-case opt-in in the chapter on ‘freedom, security and justice’ (Title IV) and on the part of Schengen, which was communitarized with the Amsterdam Treaty. British parliamentary debates and the media coverage of JHA referer to nation-state identity and sovereignty and focus on the importance of national border controls because of the special geographical situation of Britain and the protection of individual rights and freedoms. In sum, the British government is not likely to lift the JHA opt-out in the near future.6

Conversely, the Danish opt-out from JHA is part of a package deal rather than a long-term governmental strategy. It is the result of what a two level-game approach would call an involuntary defection in which domestic groups override or subvert an agreement supported by a political leader. The Danish government had signed the Maastricht Treaty, which was subsequently rejected by the Danish voters at the referendum in 1992. The four Danish opt-outs, from the third stage of the EMU, defence cooperation, citizenship and JHA, were invented in the course of a half year from June to December 1992 in order to cope with the rejection of the Treaty. Following the referendum, all political parties in the Danish parliament except from one drafted a national compromise Denmark in Europe, which was a common negotiation position for the government.7 It focused on the most dominant issue in the Danish referendum debate – the transfer of national sovereignty to the EU. The government accepted this document with minor revisions and the Council agreed on the most important parts of the national compromise with the Edinburgh Decision in 1993. Today, the opt-outs are “interpreted in the Danish debate as guarantees of continued sovereignty” (Hedetoft 2000: 300). The Danish opt-outs express a concern for national identity and the idea (or hope?) that the EU is an interstate cooperation where sovereignty can easily be retracted (Hansen 2002: 74 and 81). It difficult to envisage when a Danish government will voluntarily hold a referendum to lift the JHA opt-out as any government will have great difficulties winning it.

A number of foreign policy analysts and EU researchers have inquired into the effects of opt-outs on the manoeuvrability of member states, often as part of other research agendas (Williams 2005; Petersen 1998; Larsen 2000; Tonra 2000; Wallace 2000; Stubb 2002; Dansk Udenrigspolitisk Institut 2000). The general idea put forward in this literature is that member states such as the UK and Denmark are experiencing a real and tangible loss of influence because of their opt-outs. Indeed, the driving motivation behind the opt-outs in the first place was to avoid Europeanization and opt-outs may therefore be described as self-imposed isolations from the European game. Both 5 The British government and Parliament were determined to keep border controls to secure external security and avoid internal controls (Meehan 2000: 12). John Major wanted to put Britain at the ‘heart of Europe’, but never considered to remove the national border controls. 6 It would not be wrong to argue that Conservatives and EU sceptics have ‘securitized’ the British EU opt-outs, to the extent that the opt-outs become guarantees of the survival of British identity. Taken to the extreme, lifting the opt-outs threatens the survival of the British state cf. Wiener (1999). 7 “Danmark i Europa”. Vedtaget af alle Folketingets partier undtagen Fremskridtspartiet den 27. oktober 1992, http://www.euo.dk/dokumenter/traktat/eu/nationalkompromis/.

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practitioners and researchers interpret the opt-outs as revealed preferences for higher autonomy at the detriment of lower influence in the EU. As Helen Wallace puts it, an opt-out may guarantee ‘[…] immunity from disliked European legislation’ (Wallace 1997: 682), but the price for autonomy is supposedly loss of influence in the policy-making process. This interpretation of opt-outs lends itself easily to the idea of an ‘integration dilemma’. According to Morten Kelstrup (2006) and Nikolaj Petersen (1998), every state (and especially a small state) faces a dilemma when it reaches a certain stage in the process of supranational, political integration. It is an uncomfortable choice between being entrapped in the integration system by giving up substantial parts of its political authority and being abandoned by the integration system by insisting on preserving formal state-based sovereignty (Kelstrup 2000: 119; Kelstrup 2006: 278).8 The basic idea is that you cannot have both autonomy and influence. With the opt-outs, UK and Denmark have allegedly tried to move the balance towards state autonomy and away from integration. Rationalist oriented researchers argue that member states with opt-outs have chosen a lower influence-capability in order to safeguard higher autonomy because opt-outs equal loss of formal voting right which again leads to loss of influence because they cannot participate in coalitions (Mouritzen and Wivel 2005: 36). Constructivist oriented researchers make the case that member states with opt-outs are less attractive partners because opt-outs represent a breach of the established norms in the Council of Ministers (Lindahl and Naurin 2003). Along these lines, opt-outs may affect member state diplomatic abilities by contributing to an image of the UK and Denmark as states, which do not participate whole-heartedly in the EU. Here influence is linked to the ability to be accepted as a ‘good and constructive European’ that is the ability to shape the perceptions of others and influence the norms that govern the European integration process.9 In sum, existing theoretically oriented literature suggests that opt-outs imply that member states loose influence but gain autonomy within the area where they have opted out (either because of loss of voting right or breach of norms).

This paper does not question the valuable insights of the above-mentioned theoretical accounts and their intuitively convincing argument about opt-outs. Nonetheless, it attempts to show that a deeper understanding of opt-outs can gain from studying the diplomacy surrounding the national exemptions – the formal and informal practices of ministers and officials. In fact, a puzzle emerges once we look at the political practice. More empirically oriented research cannot confirm the theoretical assumptions about isolation from Europeanization processes. Olsen and Pilegaard (2005) have for instance studied the Danish defence opt-out and their rationalist oriented hypothesis is that Denmark’s ability to be a coalition power (i.e. ability to form or operate as an influential party in winning coalitions) decreases because of its opt-out. However, they are not able to reach a clear conclusion, but underline that the compensatory work of Danish officials may reduce some of the exclusionary effects of the opt-out (Olsen and Pliegaard 2005: 257).10 A similar, but more constructivist-oriented hypothesis about being a less attractive cooperation partner has been explored systematically by Lindahl and Naurin (2003) studying Swedish euro-outsiderness. They show that even though Sweden has not adopted the euro, it does not mean that the other member states are less 8 The concept of an integration dilemma builds on the well-known notion of a security dilemma (Jervis 1978). 9 For a similar idea regarding security cooperation, see Katzenstein (1996: 28-29) and Risse-Kappen (1996: 397-398). 10 See Larsen (2000: 134) for the convincing argument that Denmark is particularly active in areas where it is allowed to participate in order to compensate for the areas where it has had to play a passive role due to the defence opt-out.

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willing to cooperate with Sweden.11 This paper subscribes to this nuanced view. Before examining the British and Danish diplomacy related to the opt-out and opt-in possibilities on the area of JHA, I will outline the theoretical approach. This will also include a sketch of the theoretical expectations on the constraints and possibilities facing British and Danish ministers and officials when they manage the national exemptions.

Outline of the theoretical approach

This section develops the theoretical approach of the paper in two steps. First, I present Europeanization as a two-way process underlining the domestic constraints to adaptation and second, I develop the theoretical understanding of the socialization processes on the EU level. This concerted theoretical approach does not pose the effects of opt-outs as an ‘either/or’ question, but asks whether a more constructivist line of questioning can add value to existing arguments about the opt-outs.

Domestic level: Europeanization and member state strategies

The concept of Europeanization has many different meanings.12 Here, Europeanization is understood as a two-way process entailing a ‘bottom-up’ process and a ‘top-down’ dimension. The former emphasizes the evolution of European institutions as a set of new norms, rules and practices, whereas the latter refers to the impact of these new institutions on political structures and processes of the member states (Börzel 2002: 193).13 Central to the understanding adopted in this paper, is that Europeanization does not just happen out of the blue, but derives from a negotiation process where the member state governments are central players (Bulmer and Radaelli 2005: 342). This understanding is close to the well-known metaphor of a two-level game, as Europeanization can be defined as processes of up- and downloading between the domestic and European level. With uploading is understood the export of national policies to the European level and with downloading is understood the incorporation of European policies into national policy structures (Börzel 2005: 63). Governments have a general incentive to upload their policy arrangement to the European level, first because it reduces the need for legal and administrative adaptation in downloading. The more a European policy fits the domestic context, the lower the costs of adaptation in the implementation process. Second, uploading prevents competitive disadvantages appearing for domestic industry, since these industries are already used to operating under their existing national regimes. Third, uploading may enable national governments to address problems, which preoccupy their constituencies, but which cannot be effectively resolved on the domestic level (one could argue that organized crime and immigration figure among such policy-areas). National reforms may also be blocked by domestic

11 Although Lindahl and Naurin note a difference between working groups directly responsible for euro-related questions and those who are not. A more nuanced evaluation of opt-outs is also brought forward in a special issue of European Integration devoted to EMU outsiders (European Integration, vol. 27, no. 1). 12 For other often-quoted definitions, see Bulmer and Lequesne (2005: 12) or Risse, Cowles and Coparaso (2001: 1ff). 13 For discussions on the link between the two-level game approach and Europeanization theory, see Börzel (2002, 2005: 62).

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political constraints. In those cases, the EU represents an advantage for domestic actors to exit the domestic arena (Hix and Goetz 2005: 12).

Governments also have ‘incentives’ to download European policies either because they are legally forced to do so or because they find it politically beneficial. Börzel (2005: 57) differentiates between four different diffusion mechanisms (or downloading mechanisms), which result in domestic change through institutional adaptation to Europe:

1. Coercion: The EU positively prescribes or imposes a model with which the member state

has to comply. This type of downloading usually equals ‘integration by law’14 2. Imitation: Member states emulate a model recommended by the EU to avoid uncertainty or

has been successfully implemented by other states. 3. Competitive selection (regulatory competition): EU neither imposes nor recommends a

model, but member states compete for the most efficient domestic arrangement to avoid comparative disadvantages.

4. Framing: European actors behave as ideational entrepreneurs and alter the beliefs and expectations of domestic actors.15

The different scope of degree of changes due to Europeanization range from no change (inertia and resistance by member states) to high change (transformation). Börzel defines no change as the situation where member states resists the adaptations necessary to meet European requirements and notes non-compliance with European legislation as an example (Börzel 2005: 58). From this perspective, the opt-outs seem obvious illustrations of resistance to Europeanization and the general wisdom is that the UK and Denmark do not adapt to EU legislations on the areas covered by the opt-outs. Or as Tony Blair has put it, “unless we opt-in we are not affected by it”.16

Tanja Börzel (2005: 58-59) has made a useful distinction between different member state strategies in how they respond to and try to exert influence on the European arena (Börzel 2002: 197-208):

1. ‘Pace-setting’ member states conduct an active pushing forward of their policies at the

European level, which requires already established domestic policies as well as the country’s capacity to push its interests through the EU negotiation process.

2. Contrary, ‘foot-dragging’ member states have neither the interest to initiate nor to support own and European policies. Instead, by delaying or blocking initiatives of others they try to prevent costly policies, or to receive some compensation for implementation costs in form of temporary exemptions, side-payments or ‘package deals’, at least.

3. Finally and in between, ‘fence-sitting’ member states are neither pushing their interests nor blocking European policies. In a rather indifferent or neutral position, due to their lack

14 See also Dyson and Goetz (2003: 15) for a useful differentiation between softer and harder integration methods. 15 These mechanisms suggest that adaptational pressure from the EU is not a necessary condition for Europeanization to cause domestic change. It may simply be political opportune to use European policy to legitimate domestic change or conversely to lift a policy out of the domestic arena 16 “PM Press Conference - 25 October 2004” http://www.pm.gov.uk/output/Page6480.asp

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either of interest or capacities, they build tactical coalitions with both ‘pace-setters’ and ‘foot-draggers’.

In Table 2, the notion of different Europeanization strategies is combined with the concepts of up- and downloading.

Table 2: Member state responses to Europeanization

Pace-setting Fence-sitting Foot-dragging

Strategies Actively pushing national policies

Neutral position trying to build tactical coalitions

Block initiatives

Type of Europeani-zation

High degree of up- and downloading

No up-loading and medium downloading

No up-loading and low degree of downloading

Central to Europeanization studies is the identification of intervening variables that mediate between European pressures for adaptation and member state responses. One of the constraints on a government’s diplomatic actions on the European arena is the domestic constituency, or to put it in two-level game terms, in international cooperation each leader of a country – or diplomat – has to strike acceptable deals with his or her international partners and must ratify such deals in the respective domestic constituencies (Carporaso 1997: 567). In this light, opt-outs are not just attempts at resolving the integration dilemma; opt-outs are compromises between a eurosceptic and a pro-European faction within a member state.17 The existence of multiple veto points in a given policy-making structure is likely to inhibit or at least considerably slow down adaptation to Europeanization (Risse, Cowles and Carporaso 2001; Héritier 2001: 44-45). The more domestic actors have to say in decision-making in the ratification procedure, the more difficult it is to foster the domestic ‘wining coalition’ necessary to introduce changes. The ratification procedure represents a constraint on governments’ autonomy, defined as the process whereby domestic constituents in each country decide whether to ratify and implement an agreement.18 The actors at the domestic level may represent parliaments, bureaucratic agencies, interest groups, social classes, or even ‘public opinion’ (Putnam 1988: 436). The stricter the ratification process, the less autonomy does the government have to strike deals on the international level. It is possible to distinguish between three types of ratification procedures: approval (ex post ratification), authorization (a priori ratification) and acquiescence (agreement with no formal ratification) (Martin and Sikkink 1993: 352). Except for treaty revisions, European decisions are legally binding for the member states and, hence, do not require ratification at the domestic level. Yet, while regulations are directly applicable, national parliaments must transpose directives into national law. Moreover, both regulations and transposed

17 As Lene Hansen argues, “The Edinburgh Agreement was […] primarily important as an agreement between ‘the elite’ and ‘the people’ in Denmark, not as an agreement between Denmark and the other EU members” (Hansen 2002: 74). 18 This idea links to the argument from two-level game theory that the domestic ratification procedure is one of the determinant factors in international negotiations.

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directives have to be practically applied and enforced by national administrations. A high misfit between domestic and European policies, which challenges core features of domestic policies and institutions will result in inertia since parliaments will refuse to simply replace norms, rules and practices with new ones (Börzel 2005: 59).

Despite the general weakening of national parliaments as a result of European integration (Kassim 2005: 297; Raunio and Hix 2001), there are good reasons to believe that British and Danish Parliaments play a key role in the determining the ‘diplomacy of opting out’ of their respective governments. Existing research often highlight the Danish parliamentary scrutiny system as exceptionally effective (see for instance Wallace 2005: 34; Egeberg 2005: 197) and the British Parliament is equally praised for its good performance and high level of information. Thus, “[o]n paper, Britain has the second most effective system for parliamentary scrutiny of EU legislation after Denmark” (Allen 2005: 134).19 While both countries are attached to parliamentary democracy, the British and Danish parliamentary involvement in EU matters differs. The UK has a duecameral system with majority government whereas the Danish political unicameral system is characterised by minority or coalition governments. This has consequences for the way parliamentary scrutiny has been applied in the two countries.20

In the UK, the executive has traditionally enjoyed great autonomy in foreign policy decisions (Buller 2000: 161). However, with respect to the EU, the Parliament has been increasingly involved with the scrutiny of European policies; eurosceptic backbenchers have driven this process (Hansen and Scholl 2002: 13). The House of Commons tends to sift proposed legislation while the House of Lords undertakes more detailed enquiries into particular issues. The European Scrutiny Committee of the Commons receives all documents produced by the EU – approximately 1,000 each year – accompanied by the relevant government department’s explanatory memorandum. The Committee reviews whether the documents are legally and/or politically important, and decides, which ones should be debated in the Commons, if so, the committee will report on it in a weekly report21 (Allen 2005: 134). In the House of Lords, the European Union Committee receives these documents. Each week the Chairman of the committee sorts through the documents and decides whether it can be cleared immediately, or whether it needs further examination. The Parliament does not have the power to give a direct mandate to the British ministers (Hood 2002) but both Houses have an informal power known as the scrutiny reserve. This is an undertaking by ministers that, bar exceptional circumstances, they will not agree to anything in the Council until it has been cleared through Parliament. Whenever the scrutiny reserve is over-ridden, the minister must write immediately to the appropriate committee explaining why this was the case, and risks being brought in front of the committee for questioning. Conversely, in Denmark, the European Affairs Committee has a long-standing tradition of exercising formal control with the Government's participation in

19 In his overview of the strengths of national governments, Kassim only ranks the British Parliament as medium strong (Kassim 2005). 20 For a profound discussion of the relationship between party-system and parliamentary involvement in the EU, see Aspinwall (2004). 21 Furthermore, if deemed necessary, the Scrutiny Committee will send it to one of three Standing Committees (A-C) for further consideration (approximately 53 documents in an average year), or very occasionally to the floor of the House (3 documents in an average year) (Jones 2005: 3).

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European co-operation. The European Affairs Committee considers the Government's negotiating draft and provides ministers with a negotiation mandates prior to all Council meetings for all issues of wider national importance (a priori ratification). Furthermore, the minister reports on the negotiations in the EU, which provides for an ex post ratification and because there is usually a minority government the Parliament can ultimately bring the government down (Dosenrode 2000: 394). The Danish minister is thereby formally bound by the Parliament, whereas his or her British colleague is authorized to act an on a freer mandate.22 Ceteris paribus this means that the Danish parliamentary scrutiny system imposes a tighter constraint on the Danish government compared to the British system.23 However, the informal control in the form of debates and questions may be better in the UK, where the Parliament’s level of information seems to be even higher than in Denmark, and that may compensate for the lack of formal control instruments.24 Indeed, in practice the strict ratification may turn out to be mere ‘rubber stamping’, if the Parliament is not willing or able to use the formal control instruments effectively. Table 3 illustrates British and Danish parliamentary scrutiny.

Table 3: British and Danish parliamentary scrutiny

A priori ratification Ex post ratification

United Kingdom Informal scrutiny reserve (informal authorization)

Questioning and information (acquiescence)

Denmark Formal negotiation mandate (formal authorization)

Questioning, ultimate possibility of bringing a government down (approval and acquiescence)

EU level: Socialization and informal norms

At the EU level, there are interesting socialization dynamics, which are relevant for the study of the diplomacy of opting out. Helen Wallace and her collaborators have found that irrespective of the rules of decision-making in the Council of Ministers, the general tendency is to search for consensus (Hayes-Renshaw, Aken and Wallace 2006). This does not imply a Harbermasian rational deliberation where strategic calculations and external sanctions disappear, or that voting weights are not important, but it implies that if officials and ministers cannot present a persuasive argument, they loose out in the negotiations. If around 80 percent of decisions in the Council of Ministers are taken by consensus (see Heisenberg 2005: 65; Lewis 2003), this may trouble the clear distinction between autonomy and influence inherent in the idea of an integration dilemma; especially as Danish and British officials participate in all meetings – including those where new legislation on JHA covered by opt-outs is discussed. While the intergovernmentalist image of EU decision-making entails that the

22 For an interesting discussion of diplomacy and theories of representation, see Jönsson and Hall (2005: 98-118). 23 See also Eichenberg (1993: 71) for a similar argument that British executives are insulated from those of constituents compared to e.g. American leaders. 24 Moreover, it remains unclear whether those parliaments that have the formal authority to give instructions to governments are significantly more powerful than their counterparts are in other member states (Kassim 2005: 300; Dosenrode 2000).

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formal decision-rules and utilitarian interest calculations are determining bargaining outcomes, a sociological institutionalist approach emphasises that sociality and norms may affect negotiation outcomes (Lewis 2000: 265-266). Constructivist oriented theories have demonstrated the importance of informal norms and social interaction as a determining factor in international negotiations. Constructivism is based on the assumption that the environment in which agents take action is social as well as material and that this setting can provide agents with understanding of their interests (Jupille, Carporaso and Checkel 2003: 14). Accordingly, domestic actors are socialized into European norms and rules of appropriateness through processes of persuasion and social learning. While this process does not fundamentally alter the fact that ministers and officials defend national interests, they develop ‘dual loyalties’ (Beyers 2005). Ministers and officials develop their interests in both the domestic and the EU setting and they have to manoeuvre strategically to link the two settings according to expectations in both settings. Strategic behaviour (such as the uploading of national policies) and socialization are not opposites, an agent may behave strategically in an environment where socialization is highly developed and norms of appropriate behaviour have developed (Johnston 2005: 1031).25 From this constructivist perspective, Jeffrey Lewis has studied negotiations in the COREPER (Committee of Permanent Representatives) and the Council working groups, which together form the central decision-making bodies in the EU. Lewis (2005: 949) lists five informal norms, which regulate the decision-making process in the COREPER, and his work suggests that they also apply more broadly to the composite Council system (cf. Lewis 2003):

1. The norm of diffuse reciprocity, which implies the balancing of concessions over an extended shadow of the future.

2. The norm of thick trust, which implies the ability to speak frankly. 3. The norm of mutual responsiveness, which is a shared purpose to understand each other’s

problems. 4. The norm of consensus-reflex, which implies an instinctive recourse to behave consensually

and ‘bring everyone on board’. 5. The norm of compromise based on a willingness to accommodate divergent interests, which

includes a self-restraint in the calculations and defence of interests. Furthermore, Lewis has shown that when the COREPER meets to prepare Council meetings and take decisions there is a certain element of theatricality in manufacturing intrigue. The COREPER members adopt roles because they are appropriate in that particular setting. This role-playing is a typical grammar of diplomats and presents the national representatives with a wide range of diplomatic resources (Lewis 2005: 950; Beyers 2005). Thus for instance, everyone will know that a certain ambassador has to return to his capital with ‘a black eye’ in order to get new and more collective acceptable instructions for the negotiations – and they will help him to do that (Lewis 2005: 25 It is not easy to measure to what degree these norms or ideas are actually internalized and to what degree they are just strategic uses of arguments (for a discussion of this see Zürn and Checkel 2005). Jeffrey Lewis (2005) and Jan Beyers (2005) suggest that it is a combination; thus, officials are aware of the norms of persuasion and the deliberative mode of negotiation. They accept them and live with them, but they are also able to reflect on them and use them strategically, repacking national interests in collective deliberative clothing to play ‘good Europeans’.

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951). Role-playing occurs in situations where the logic of appropriateness dominates and provides limits to an instrumentalist logic because the officials have to legitimate their arguments collectively (Checkel 2005: 944-955). In order to win, you need a persuasive argument, which leans towards a reasoned consensus and what is best for Europe.26 Following this line of argument, if British and Danish ministers and officials are able to frame their national policies as ‘good’ for the whole of Europe, they will be more likely to be able to upload their national policies, despite the fact that they have lost their formal voting right. Consequently, if they are not able to present their arguments in a convincing way, ‘group outrage’ can signal that a certain behaviour or justification for demand is not acceptable (Lewis 2005: 949).

27 Checkel (2005: 811) argues that the internalization of new role conceptions and conceptions of the self in line with group-community norms is more likely when:

1. Agents are in settings where the contact is intense and sustained. 2. The agency/target interaction occurs in less politicized and more insulated in-camera settings. 3. The socializing agency/individual does not lecture or demand, but, instead, acts out of

principles of serious deliberative argument. In a subsequent section, I will show that these conditions hold for much of the policy-making process within JHA so that ministers and officials are socialized and therefore they seem to follow norms of appropriate behaviour.

Legal interpretation

Informal norms and socialization are important for the diplomacy of opting out, but there are also obvious legal limits to the up- and downloading of policies. In terms of downloading, it is not always possible for a member state with opt-outs to implement EU legislation directly in an area covered by the opt-out. A given EU proposal, for instance a regulation, will simply state in the beginning,

In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application.28

Thus, unless the country is able to opt in, as the UK is, it will have to imitate EU legislation if it is to engage in downloading of specific legal measures. In terms of uploading, the UK and Denmark participate in all meetings, but if the UK does not signal that it will opt in, it looses its voting right. Denmark has altogether renounced of its voting right in the area covered by its opt-out. Most of the

26 It has been suggested that a way to influence the policies in the euro area despite a euro opt-out is by delivering ‘the better argument’. By being better prepared, willing to engage in continuous dialogue and applying a proactive and competent policy a smaller euro-outsider may be lifted to the centre stage (Marcussen 2005: 59). 27 Interview, February 7, 2006, private; Interviews, August 22, 2006, Danish Ministry of Refugees, Immigration and Integration Affairs. 28 The British version will state, “In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom has notified its wish to take part in the adoption and application of this Decision.”

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existing research stops here, and suggests that opt-outs imply that member states do not participate in the policy-making process when the opt-out applies. However, the opt-outs are not always legally clear and a simple question such as ‘Does the opt-out apply here or does it not?’ can be very difficult to answer (Papagianni 2001: 123).29 Rules are never free of surplus or ambiguous meaning (Clegg 1989) and there are potential and existing conflicts over how to interpret opt-outs. Furthermore, practice cannot always be expected to follow rules, as informal norms may sometimes be more important than the rules. Consequently, asking what is the impact of opt-outs on member state diplomacy is asking how the actors understand opt-outs and how they behave according to these interpretations.

Hypotheses on up- and downloading

Assuming that officials and ministers from member states with opt-outs are interested in up- or downloading policies, the analytical challenge is to determine the conditions for their ability to do so. The above theoretical considerations on the importance of parliamentary scrutiny on the domestic level, a consensus-oriented decision-making mode on the EU level and the legal interpretation of the opt-out can be restated in a hypothesis form: H1: The less the opt-out is legally formalized, the more it is possible for member states with opt-outs to download European policies in areas where they have opted out. If an opt-out is vaguely defined in the protocol and/or no legal precedence exists, it is possible to make a more inclusive interpretation of the scope of legal measures and political decisions in which a opting out member state is able to participate. On the other hand, if the opt-out has a clear legal definition and precedence exists it is more difficult for a member state with opt-outs to up- or download European policies in areas where it has opted out. H2: The less domestic constraints, the more is it possible for member states with opt-outs to upload national policies or download European policies in areas where they have opted out. Domestic constraints are understood as the formal and informal parliamentary control with international agreements and decisions made by governments and officials in an area where the member state has opted out. H3: The more the negotiations are driven by the search for consensus, the more it is possible for member states with opt-outs to upload national policies in areas where they have opted out. The existence of (and ability of the UK and Denmark to promote) an atmosphere of consensus and the force of the best argument rather than intensive bargaining is an important determining factor in British and Danish abilities to upload their policies, as they have lost their hard instruments within 29 Interview, August 28, 2006, Danish Ministry of Foreign Affairs.

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this area. If member states cannot agree through dialogue, the member state that has opted out cannot vote and will have more difficulties uploading its own national policy.

Of course, it is artificial to separate the three hypotheses, in reality they are intimately interconnected so that for instance a clear legal definition of an opt-out will also make it easier for a Parliament to control the government. In addition, over time the British and Danish governments, Parliaments and the other member states and EU institutions have learned to deal more effectively with these constraints and may have adjusted their interests and actions to them. However, for the clarity of the argument, these hypotheses are analytically separated. They represent the conditions under which to expect member state with opt-outs to be able to up- and download national policies on areas covered by their opt-outs given that the government wants to upload national policies or download European policies.

Methods and data

My research design follows a methodological strategy of empirical triangulation combining different types of qualitative data sources: semi-structured interviews, official documents (Council decisions, regulations, directives, and EU treaties).30 I use secondary sources to situate the opt-outs in their historical, legal and political context. Apart from a few official reports to the Parliaments31, there is very little written material on the opt-outs in the archives of British and Danish ministries as the interpretation of the opt-outs is based on precedence. The majority of the internal discussions of how to deal with an opt-out is settled verbally. A good way to understand the diplomatic practices related to opt-outs is therefore by interviewing the persons implicated. I have conducted 20 in-depth interviews with British and Danish officials. The interviewed British officials were positioned in the Foreign and Commonwealth Office and the Home Office. The Danish officials worked in the Ministry of Foreign Affairs, the Ministry of Justice, the Ministry of Refugees, Immigrants and Integration Affairs and the Danish EU Representation. Furthermore, I interviewed two high-level Council officials. I selected experienced officials working on a daily basis with the management of the JHA opt-outs. The interviews help to explore the diplomacy of opting out and are oriented towards the practices and perceptions of the officials and do not claim to be statistically representative. The interviews with the British officials were made over the telephone while the rest were face-to-face. The interviews took place in the period from December 2005 to August 2006. A semi-structured interview-guide laid the basis for the interviews, which lasted 90 minutes on an average. Apart from the interviews, I have made two exploratory critical case studies of respectively the UK and Denmark. The cases are critical in the sense that they represent situations where the member state has legally opted out and the political sensitivity is high. In other words, existing research (both rationalist and constructivist approaches) would predict that in such situations it would be difficult if not impossible for the UK and Denmark to upload their national policies and download the European policies, because they have lost their voting rights (rationalist approach) or breached the norms (constructivist 30 For a discussion of triangulation see Stake (2000: 443-444). 31 The Foreign and Commonwealth Office has written a number of reports on the issue of the British opt-outs, and the Danish Ministry of Foreign Affairs keeps a file on how often they activate the different opt-outs and occasionally they publish a report to the Danish Parliament.

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approach). The aim is to explore the conditions for up- and downloading cum opt-outs in order to develop a more general understanding of the diplomacy of opting out.

Justice and Home Affairs: Insulation and consensus-seeking

JHA has remained outside EU competence for a long time. Unanimity has been the rule and the member states have been cautious not to let the EU institutions influence the development (Geddes 2000). During the Maastricht negotiations, the British and Danish governments together with Ireland and Greece were able to put a brake on the ambitious plans for the development of EU immigration and asylum policy where among others France and Germany envisaged the full communitarization of JHA. The blockage resulted in the messy compromise, which led to the creation of the ‘third pillar’ of the Maastricht Treaty dealing with JHA (Geddes 2000: 89; Givens and Luedtke 2003: 305). This relative success of the reluctant member states may also explain why many thought that the Danish opt-out from supranational cooperation in the area of JHA would never be activated (Pedersen 1993: 93) and why John Major could describe the JHA pillar as a diplomatic triumph (Geddes 2000: 93).32 In 1997, the member states member states took a drastic choice towards the integration of their immigration policies when they agreed to speed up the process with the Amsterdam Treaty.33 Here, the Schengen acquis was transferred into the first (European Community) and third (JHA) pillars with movement matters relating to the first pillar and police matters to the third pillar, respectively and the member states gave a limited role for supranational institutions, the European Commission, European Parliament and European Court of Justice. However, the communitarization and increasing amount of legislation does not change the fact that national governments are the most important policy actors within JHA (Guiraudon 2004: 169; Nilsson 2002; Gray and Statham 2005: 890-891). The European Commission, the European Parliament and the European Court of Justice still have limited powers and the main player within JHA is arguably the COREPER. Because of the sensitive character of JHA the consensus reflex is extremely predominant in this area, as Aus has argued,

As long as COREPER remains the “hub” of decision-making in the JHA Council and regards it as its professional duty to keep the EU’s legislative agenda moving forward, we will continue to see the unanimous adoption of politically divisive Community Regulations, Directives, and Decisions in the field of EU Justice and Home Affairs (Aus 2006: 53).

Today, JHA is the policy-area within the EU that is growing with the highest speed (Monar 2000: 2).34 With the drastic development of cooperation in this area, researchers have discussed whether and to

32 The Danish Foreign Policy Institute comes up with the ‘daring’ explanation that Danish politicians and officials had simply not understood the Maastricht Treaty text correctly, wanting an opt-out from police cooperation and ending with an opt-out from immigration and asylum legislation (Dansk Udenrigspolitisk Institut 2000: 252). However, this misunderstanding thesis does not seem very probable, as the Danish Foreign Policy Institute it self mentions that the Danish parties participating in the national compromise underlined specifically that they wanted an opt-out from immigration and asylum policy (Dansk Udenrigspolitisk Institut 2000: 227-228). 33 The United Kingdom, Denmark and other so-called reluctant member states did not block the development, although they tried to resist communitarization up until the last weeks before Amsterdam (Moravcsik and Nicolaïdis 1998: 29). 34 The events of September 2001 have accelerated the drafting of new legislation within this area, as has the European Council’s Hague programme (Brouwer 2003).

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what degree we see harmonization and socialization within this policy area (Givens and Luedtke 2003; Guiraudon 2003). Overall, the area of JHA is characterised by what Helen Wallace has termed ‘intensive transgovernmentalism’, which gives a pre-eminence to state sovereignty, but at the same time allows for the development of common policies in an atmosphere of mutual responsiveness. The transgovernmental method of policy-making is different from the intergovernmental method of policy-making as governmental actors (below the level of chiefs of governments), such as ministerial officials, law enforcement agencies and other bureaucratic actors have relative autonomous decision-making functions (Lavenex 2001). Thus, while JHA is a politically sensible policy area, it is paradoxically also subject to a relative insulation from broader domestic constraints.35 The decision-making process is secretive and often described as undemocratic (Lancker 1997; Hix 2005).36 The intensive cooperation in the high-level groups under the Council has lead to socialization and trust building (Smith and Tsatsas 2002: 79-80). Through interactions at the European level, a new policy paradigm has emerged among officials about controlling populations (Hix 2005: 369).37 The development of JHA as driven by the desire of member state officials to gain “[…] freedom from domestic constraints and scrutiny” within the area of asylum and immigration law and upload national policies (Guiraudon 2003: 168; Monar 2003; Eder and Trenz 2003: 123).

In sum, the policy community of JHA seems to be characterised by the three conditions for socialization listed above, namely a setting where contact is intense and sustained and most of the interaction occurs in less politicized and more insulated in-camera settings. This should theoretically make it possible for the UK and Denmark to up- and download despite their opt-outs. I will argue in the next sections that the high degree of socialization and the specific informal norms together with surprisingly weak domestic constraints in JHA make such participation possible.

Both the UK and Denmark have been very active in the JHA Council from the beginning (Harvey 1997: 68). Both countries have introduced strict measures of immigration in the last decades and have governments, which try to promote a high profile on being tough on crime and promoting the national security. They are interested in uploading their national policies because of the increasing number of asylum seekers and the political interests in this area. The British and Danish governments have been succesful in making the other member states share the ‘immigration and refugee burden’, in fact in the Danish case other member states such as Sweden have almost overtaken that ‘burden’ (Geddes 2005). Second, the British and Danish governments want to address problems which preoccupy their Parliaments and populations, but which cannot be resolved effectively on a national level (Geddes 2005: 725). Especially in the later years, the UK and Denmark been pace-setters together with Spain and the Netherlands and have promoted ideas such as ‘transit processing centres’ 35 Pro-migrant NGOs have been relatively unsuccessful in influencing the bureaucratic epistemic community (Geddes 2000: 150). They have tried to push for more supranational decisional capacity to open gaps in member state control that could then be exploited by the Commission (Gray and Statham 2005). Furthermore, while the pro-migrant NGOs might formerly have hoped that European influence would encourage member states like the UK to make their migration policies more expansionist, they now have a more hesitant approach, since recent EU policies have in fact advanced a restrictive agenda, driven by the member states (Gray and Statham 2005: 892). 36 For a different view, see Nilsson (2002: 5), “[…] it has become clear that some national parliaments examine the initiative in detail and give negotiating directives to the government representative. The negotiator in the Council Working Group will therefore have his hands tied.” 37 Because the policy-area is rather new and demands a high level of legal and technical understanding, a problem-solving approach in the Council system and working groups has emerged (Juss 2005; Nilsson 2002).

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in third countries and ‘regional protection areas’ close to refugee-producing countries (see Smith and Tsatsas 2002).38 While British and Danish ministers and officials may sometimes be legally prevented from downloading European policies in an area covered by the opt-outs, they will still be interested in imitating EU legislation and uploading their national policies. Table 4 gives an overview of the British and Danish JHA opt-outs and opt-ins.

Table 4: British and Danish opt-ins and opt-outs in Justice and Home Affairs

Schengen related measures Non-Schengen measures

General explanation

The Schengen acquis was incorporated into the Amsterdam Treaty and some of the acquis went into Title IV TEC, some into Title VI TEU. The Schengen arrangements incorporated into Title IV apply, as EC law, only to 12 member states.

Denmark, Ireland and the UK stand in a special position as regards Title IV TEC (Visas, asylum, immigration and other policies related to free movement of persons).

United Kingdom

The UK and Ireland are not parties to Schengen but may, with the agreement of the 13 Schengen states, opt-in selectively.

The UK and Ireland can opt-in selectively to (non-Schengen) measures under Title IV (TEU Protocol No 4).

Denmark Denmark is outside Title IV, but remains, as a party to Schengen, bound in international law

Denmark cannot be selective but can opt-in to Title IV in toto (TEU Protocol No 5).

British Europeanization strategies in Justice and Home Affairs

When the JHA pillar of the Maastricht Treaty was incorporated into the Community pillar in the Title IV on ‘freedom, security and justice’, the UK got both opt-out and opt-in possibilities.

The legal interpretation

The opt-in possibility means that the UK can choose from case to case whether to participate or not. Thus, the legal definition of the national exemption already secures the possibility of partial Europeanization. Legal scholars have wondered how the UK managed to get such a favourable à la carte protocol (Juss 2005; Boer 1997: 3; Tuytschaever 1999), but what matters here is how the UK has used this flexible opportunity.39 The opt-out rules, which took effect on 1 May 1999, have been in operation for several years now. Contrary to popular belief that with the passage of time countries like the UK could be pressurized into dropping the opt-out in practice, all the current evidence is that this practice is going from strength to strength. For measures under Title IV TEC, the opt-out rules 38 The British government’s ‘new vision for refugees’ was first outlined in the restricted joint Cabinet-Home Office document leaked to the press in February 2003. An amended, considerably polished, version was made public by the Home Office on 27 March 2003. See Home Office, “New International Approaches to Asylum Processing and Protection”, March 2003. 39 The Constitutional Treaty had not set out to abolish or reduce the British opt-out. On the contrary, it made it wider in the fields of police and criminal law.

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for Britain and Ireland work as follows: (a) the UK and Ireland have three months to decide whether to participate in discussions once a proposal for legislation is presented; (b) the discussion of the proposal will go ahead between the other member states, if either the UK or Ireland do not wish to participate, and they can then adopt the proposal with either the UK or Irish participation (or both); (c) the discussion of the proposal will go ahead between the other member states, if either the UK or Ireland do decide to participate, and with their full participation; but the proposal could be ultimately adopted by the other member states without their participation if either the British or Irish objections hold up the adoption of a proposal; (d) either the UK or Ireland (or both) could opt-in to adopted legislation later if it changed its mind, if legislation had been adopted in this area without either UK or Ireland (or both) participation, provided it met with the approval of the European Commission. Furthermore, this means that other member states cannot impede the UK from participating. Indeed, there is no evidence whatsoever that the UK or Ireland have ever been coerced to opt in to measures that they did not wish to participate in (Juss 2005). As regards the measures building on Schengen, the UK and Ireland are “not bound” by the Schengen acquis, but “may at any time request to take part in some or all of the provision of this acquis” (Article 4 of the Schengen Protocol). On such a request, the 12 Member States who are parties decide unanimously. Hence, any Schengen state can in principle veto the participation of the UK or Ireland and the British position concerning Schengen-related measures is less flexible than concerning the rest of JHA. Therefore it is important whether a proposal builds on the Schengen acquis or not. But as this question is not always easy to determine (Kerchove 1998: 203) the UK engages actively in trying to convince the Legal Service of the Council of Ministers as well as other member states that a certain proposal is not Schengen-related so that it can use its favourable opt-in model.

However, the formal rules do not reveal the actual meaning the British opt-in possibility. Thus, where the UK and Ireland has opted into discussions, in the sense of (c) above, they have been able to hold up the adoption of legislation that could otherwise have been adopted without their participation, by the other member states choosing to go ahead. The opt-out from Title IV has been turned into an informal veto. There is no case of other member states going ahead in the face of UK and Ireland objections following an opt-in (Juss 2005: 784).40 Accordingly, the UK has blocked even very restrictive legislation on the EU’s table, if it did not consider it in its national interest (Givens and Luedke 2003: 293). The UK has been able to control not only its own degree of Europeanization, but has also prevented other member state from engaging in Europeanization. Counter intuitively, the result is that a member state that has decided to subscribe to opt-out rules is privileged compared to a member state that has not. A closer examination of the opt-out rules show that they do not amount to a veto. In fact, Article 3(2) of the Protocol on the position of the United Kingdom and Ireland allows the other member states to adopt certain measures against the will of the UK, despite the UK

40 It is so not least because the opt-out rules could plausibly be read to imply that once the UK or Ireland decide to opt-into discussions on proposals subject to qualified majority voting (QMV), then they are bound by a majority decision even if that is against their consent. Such an interpretation surely flows from a combination of QMV in Council and the opt-out rules in that, on a proposal that is subject to QMV, an opt into discussions by the UK or Ireland, puts them in a position where they cannot avoid being subject to legislation which has qualified majority support in Council.

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and Ireland notifying their intention to participate in the measures.41 To sum up, currently the UK has the right to opt in to legislation at the start and an (informal) right to veto anything at the end. This cannot be explained by a pure rationalist approach, where member states would just go ahead without the UK, but it can be understood in the light of the informal norm of consensus and the willingness to accommodate divergent interests. When the UK opts in it is treated as a ‘normal’ member state with the same formal and informal rights as the other.42

Europeanization strategies and EU dynamics

One of the clearest examples that the UK has turned from a foot-dragging to fence-sitting member state in JHA is its support for qualified majority voting (QMV) within this area. At the JHA summit on September 22, 2006, the UK supported the Commission’s proposal to transfer some or all aspects of the current third pillar to the first pillar of EU law resulting in the introduction of more QMV in the area of JHA. This was a rather dramatic change of position, as the government had previously stated that it did not support the introduction of QMV on areas such as police matters and crime.43 The primary reason for the support for QMV is that the British government wants to promote actions within JHA in order to resolve domestic politic concerns (Geddes 2004: 157). British media and Parliament warned against Tony Blair’s ‘surrender the British veto’,44 but the question is how big the consequences will be if more QMV is introduced. Britain’s second veto (which is only informal) would probably disappear and Britain would have to make its mind up about a piece of legislation at the very beginning of the process; once it opted in it would – in theory – be bound by whatever voting mechanism was in place. However, even after the introduction of more QMV, the consensus-mode probably would still prevail within the area of JHA. The government also believes that informal norms will help assure that it can still influence the development despite QMV and despite its opt-out.45

The most important form of Europeanization of British policies in an area where the UK has opted out is not surprisingly linked to the above described opt-in opportunity. In the first years after the Amsterdam Treaty entered into force, the Blair government was reluctant to use its opt-in possibility. But as there was an increase in the number of asylum seekers entering the UK via other EU states, the British government found it advantageous if the issue could be addressed through the Europeanising of policy-making in order to ensure that other member states took on a greater share of the burden (Fella 2006: 9). In addition, the Labour government sought to present itself as being ‘tough on crime’ and to break the monopoly of the Conservatives on immigration and asylum policy. Thus, the government had a clear incentive to promote Europeanization in the area of JHA. 41 In the Amsterdam Treaty, Britain thought it had won the right to opt-in, Spain however, resentful of the long-standing feud over Gibraltar, inserted a clause stating that any country could veto the UK's attempts to opt-in. This late amendment was inserted without the full knowledge of the UK delegation (Monar 1997: 27). 42 The UK has never opted into legislation, as made possible in the sense of (d) above, after adoption by other member states, once it had decided not to participate in discussions on it. 43 Other member states, especially Germany, blocked the initiative. Germany was against a strengthening of JHA, but because it feared that pillar moves would threaten the Constitutional Treaty. 44 The House of Lords Select Committee on European Union devoted much of its Forty-Second Report to the use of the passerelle and concluded that the matter deserved “careful examination” European Union - Forty-Second Report. 45 Interview, August 21, 2006, British Home Office.

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Nevertheless, the key feature of the opt-out (or right to opt-in as the government has preferred to frame it) from Title IV – the right for the UK to maintain controls at its national borders – was retained. Thus, while the UK and Ireland have opted into all proposals on asylum, illegal migration and civil law, they have opted out of practically all proposals concerning visas, borders, and legal migration. In other words, the UK has chosen to opt-in to those areas that curtail the ability of migrants to enter the EU, but has opted out of protective measures such as directives of family reunion and the rights of long-term residents (Geddes 2005). Also when the UK does not opt-in, it still tries to upload its own national policies, as a British official from the Home Office explains,

We try to participate and influence the negotiations. So once we announce that we are not participating, we step back a little, but still we try to be part of the debate and try to get influence using our good arguments and allies.46

Tony Blair has claimed that the UK opt-out means that ‘unless we opt in we are not affected by it. And what this actually gives us is the best of both worlds.’47 However, this is not entirely correct, as the UK is affected by the EU in the area of asylum, immigration and civil law in other ways than through opting in. The UK engages in downloading by harmonizing its legislation unilaterally to fit EU legislation (Geddes 2005: 724). On this basis, Jo Shaw has argued that the difference between being ‘in’ and being ‘out’ is gradually moving closer, because British officials have shadowed the activities of their counterparts (Shaw 1998: 91). From the entry into force of the Amsterdam treaty, the UK has adapted in quite significant ways to the developing EU security paradigm. From the idea of ‘safe countries’ to the strengthening of its own border control system, the UK is silently imitating EU measures (Geddes 2005: 734). This adaptation suggests that subterfuge can be one way that a member states with opt-outs imitate EU regulations despite their opt-outs (Geddes 2004: 158). Rather than using the EU as an excuse for adapting national legislation to EU legislation – which would be too sensible domestically – British and Danish ministers may want to avoid domestic debate and discretely copy EU legislation ‘in the dark’.

Domestic constraints

While one can claim that the British use of the opt-in is driven by the intent to shape EU policy in ways congenial to domestic consideration (Ladrech 2004: 57), it is necessary to nuance the concept of domestic interest. The opt-in decisions are driven more by the government’s view of what is the national interest than a concern for Parliament. In case of disagreement, the British government has the upper hand. Generally, the House of Lords is more positive towards harmonization of immigration policy – especially the protective measures than the government is (see also Givens and Luedkte 2004). Many of the opt-in/opt-out decisions have not had the blessing of the British Parliament, which has continually urged the government to opt into the protective measures agreed on the EU level in order to secure the rights of immigrants and refugees.48 To put it simply, there is

46 Interview, August 21, 2006, Home Office. 47 The Guardian, October 26, 2004, http://www.guardian.co.uk/guardianpolitics/story/0,,1336027,00.html. 48 For instance, the reluctance to give up the opt-out on border controls is not shared by the House of Lords Select Committee, which on the one hand criticises that the Government is not able to prove that British border control is the

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no agreement on what to up- and download within the area where the UK has its opt-in possibility.49 Parliamentary protests against specific opt-in and opt-out decisions have not had any considerable effect on the government’s decision to opt in or out, but there are other more effective limits to the British government’s room of manoeuvre, which are found at the EU level. One of the problems that the British government faces is that it cannot opt into everything because of the way the legal provisions of its opt-outs have been constructed. The following case study is an illustration.

Case study: The Regulations on Common Border Agency and Biometrics in Passports

The following case study is critical in the sense that it represents a case where there are considerable legal and domestic constraints to Europeanization in the form of up- and downloading. The Labour government has engaged itself in the politically sensitive projects of introducing biometric identifiers in passports and identification cards. Due to the traditional British scepticism towards registation and control of personal freedom (see Wiener 2000), Parliament and media are very negative. Therefore, the government has had an interest in promoting the issues on the EU level in order make Europe serve as a catalyst for domestic reforms (see also Dyson and Goetz 2003: 15). Furthermore, the British government has actively promoted EU border guards to reinforce the common EU border.

However, with the opt-out from Schengen the UK has excluded itself from automatically participating in two regulations on these issues.50 The first proposal is the European Border Agency Regulation, which sets up an agency that co-ordinates member state activities on the EU’s borders. It will have a role in risk analysis, training of border guards and new technology. The second is the Biometrics in Passports Regulation, which will require biometric identifiers such as digital photographs and fingerprints in passports. Both measures have been classified as building on Schengen border measures in which the UK does not participate, the UK only participates in the law enforcement and judicial cooperation aspects of Schengen, and security and biometrics of passports relate to frontiers.51 Until now the UK has participated ‘without question’ in much of the work of the European Border Agency on ad hoc basis,52 but once this work is formalised, it becomes more difficult to ‘stay in’. Also concerning the regulation on Biometrics in Passports, the UK has been active in the discussions on what to include in the regulation arguing as ‘normal’ member state

most effective way to control immigration and fight illegal immigration. On the other hand, it finds it ‘politically unwise’ for the United Kingdom to isolate itself from the continuing development of European Union-wide policies in such sensitive areas and argues that the UK has much to contribute with in respect of the preservation of civil liberties (House of Lords 7th Report 1998/99). 49 Thus for instance while the Parliament generally regretted that the government is only ‘partially engaged’ in JHA, it supported that it did not opt in to the Directive on an EU returns policy (Report of the European Union Committee on economic migration to the EU (14th Report, HL Paper 58). During the debate, Lord Wright of Richmond stated ‘I have already referred to our hope that the Government, in spite of their opt-out, will play an active part in trying to improve the main defects in the draft directive.’ House of Lords, 16 May 2006. 50 Denmark is ‘forced’ to adopt the regulations due to its obligation to participate in measures related to the further development of Schengen measures. 51 “Update on Prospects for the EU in 2004”, White Paper presented to the Parliament, Foreign and Commonwealth Office, http://www.fco.gov.uk/Files/kfile/CM6310,0.pdf. 52 Deputy PM visit to Council of Europe Summit May 2005, “Briefing: Border Agency and UK ECJ challenges”, http://www.bbc.co.uk/blogs/opensecrets/DPMbrief.pdf

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(Monar 2003).53 First, the British officials tried with traditional persuasion methods to argue that the two regulations should not be proposed under Schengen law but under Title IV.54 When the UK realised that the Council’s Legal Service did not accept its dispute,55 the UK lodged an application with the European Court of Justice challenging British exclusion from participating in the EU Regulation on a European Borders Agency on 14 February 2005. On March 25, 2005, it lodged a similar application challenging the exclusion from the Biometrics Regulation.56 This is a weird scenario of Europe declining to ‘force’ the UK, despite the UK’s express wishes.

Domestically, the government has not found backing for the dramatic cases at the ECJ. In fact, the British Parliament has continuously voiced its scepticism towards the creation of the border agency and the introduction of biometrics in passports and it sees no interest in promoting British participation within these areas. With respect to the European Border Agency, the Parliament is concerned with the respect of fundamental rights and EU’s neighbourhood policy. In its in 10th report, the House of Lords Select Committee stated,

We remain of the view, expressed in our Report on Proposals for a European Border Guard that the case for a centrally managed, multi-national European Border Guard has not been made. We believe that before discussing any future developments regarding the Agency, it is important to evaluate in detail how it will function from 1 May 2005 under its current powers and legal base. In its operations the Agency must respect fundamental rights and take into account the EU's policy towards its near neighbours.

This is the same agency that the government has participated in ‘without question’ prior to its formalization. Following up at the 26 January 2005, the Home Office minister, Carolyne Flint, answered vaguely when asked about “the potential establishment of a European ‘system’ for border guards” at the Select Committee, not mentioning that the UK actually supported the establishment of the border agency.57 Three weeks later the government lodged the case against the exclusion of Britain. Not surprisingly, a leaked deputy prime minister brief concerning British exclusion from the Border Agency states “We want to keep the challenge low key” underlining the political sensitivity of the issue.58 Indeed, at the time of writing the British government has not yet informed the Parliament of whether it would indeed consider participating if it is allowed to opt in.59 Concerning the other measure on Biometrics, the British Parliament is even more hostile. The European Scrutiny Committee has raised objections to the legality of the biometric move itself. Caroline Flint concluded 53 Interview, August 21, 2006, British Home Office. 54 Bilaterally, the UK contacted many member states for support for the British position. Even Denmark was contacted despites its clear opposite interests in this matter, Interview, February 28, 2006, Danish Ministry of Foreign Affairs. 55 Following the adoption of the regulation by the JHA ministers on December 11, 2004, The UK issued a unilateral statement saying " "The United Kingdom recalls that, under the Protocols on the position of the United Kingdom and Ireland and on integrating the Schengen acquis into the framework of the European Union, it has the right to take part in the adoption of this measure. It regrets that it has been denied that right. The adoption of this measure is without prejudice to the United Kingdom's legal position, and its right to take such steps in accordance with that position as it considers necessary.”, http://www.theregister.co.uk/2004/12/15/eu_uk_biometric_passports/ 56 http://www.arena.uio.no/sources/jpa/passports/council/2005/7865.pdf. 57 Select Committee on European Union Minutes of Evidence Examination of Witnesses (Question 20) http://www.publications.parliament.uk/pa/ld200405/ldselect/ldeucom/84/5012603.htm 58 Deputy PM visit to Council of Europe Summit May 2005, “Briefing: Border Agency and UK ECJ challenges”, http://www.bbc.co.uk/blogs/opensecrets/DPMbrief.pdf 59 http://www.parliament.uk/documents/upload/L%20Grenfell%20to%20Minister%20Home%20Office%20RABITs%2018%2010%2006.doc

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that the move is in fact legal, while the Committee said it retained ‘strong doubts’60 In sum, despite the hostile position of Parliament, the government is free to try to participate because the Parliament does not have a formal veto and does not give formal mandates. The British government has been able to upload its national policies and the only thing that prevents it from automatically opting into these two measures covered by the opt-out is the formal legal construction of the opt-out. Instead of waiting several years for the judgment, another leaked memo of the Home Office reveals that the Blair government will now try to cover that the proposed national act on ID cards is a copy of the EU changes.61 The case underlines that despite being legally prevented from downloading, the UK may still imitate EU legislation without explicitly informing its Parliament. Moreover, there are legal limits to downloading with opt-outs, but these limits can be contested through a continuous ‘interpretation battle’ between the member states opting out and the Legal Service of the Council. The UK has been able the engage in uploading and (to a lesser degree) downloading despite the fact that the opt-out legally apply and Parliament is mobilized against participation.

Danish Europeanization strategies in Justice and Home Affairs

The political motivation behind the Danish opt-out in JHA is quite different from that of the UK. The British opt-out/in possibility is directed against the EU – leaving the British government with the possibility to decide whether it wants to opt-in or not. The Danish opt-out was drafted by the Parliament and directed against the Danish government and gives much less room for autonomous decision-making. Furthermore, whereas the British opt-outs regard the development of the cooperation as such and specifically the idea of giving up national border controls, the Danish opt-out is not against the development of JHA as such, but against the method whereby this happens.

Legal interpretation

Just as in the case of the UK, the Danish opt-out poses obvious legal limits on Europeanization strategies. With its opt-out, Denmark follows an intergovernmental approach so that Danish sovereignty will not be undermined by the supranational integration method.62 Concretely, this means that Denmark has a special arrangement with regard to EU legislation under Title IV, according to the Protocol on the position of Denmark, adopted by the 1997 Amsterdam Treaty and annexed to the TEU and TEC. Article 1 of the Protocol provides that Denmark shall not take part in the adoption of the Council proposed measures pursuant to Title IV. In other words, Denmark is not allowed to vote when JHA is discussed under pillar I, and in principle Denmark does not download legal measures within this area. However, nothing legally prevents Denmark from participating and speaking at any JHA-related meeting. As long as it is not legal measures covered by the opt-outs, Denmark participates on an equal footing with the other member states; this means that practical

60 http://www.theregister.co.uk/2004/12/15/eu_uk_biometric_passports/ 61 http://www.dailymail.co.uk/pages/live/articles/news/news.html?in_article_id=381056&in_page_id=1770. 62 Accordingly, the Danish chief negotiator during the Amsterdam negotiations underlined that Denmark had a “political opt-in”, but a “legal opt-out” (Thym 2004: 103).

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cooperation is open for Danish participation and potential up- and downloading.63 However, in case of Schengen related measures, Denmark has adjusted all its domestic legislation to keep it in conformity with those legislative measures, which are a development of the Schengen acquis under TEC Title IV. This follows logically from the fact that Denmark is indirectly bound under Article 5 of the 1997 Protocol to enter into intergovernmental agreements adhering to the EC legislative measures adopted – and to align domestic legislation to these measures notwithstanding the formal Danish opt-out against this first pillar cooperation. Article 5 of the Protocol sets up a special procedure relating to the development of the Schengen acquis within the First Pillar cooperation under TEC Title IV. Under this procedure, Denmark shall decide within a period of six months after the Council has decided on a proposal or initiative to build upon the Schengen acquis under the provision of Title IV of the TEC, whether it will implement the decision in its national law. If it decides to do so, this decision will create an obligation under international law between Denmark and the other member states referred to in Article 1 of the Protocol integrating the Schengen acquis into the framework of the European Union. If Denmark decides not to implement such a Council decision, the other member states will consider “appropriate measures” to be taken. However, the Council has never had to consider “appropriate measures” as Denmark automatically implements the decision in its national law.64 Thus, Denmark safeguards formal sovereignty, but adopts the same legal measures as the other member states. With regards to Schengen, Denmark experiences Europeanization by coercion as it is legally ‘forced’ to download European policies. In the same way as the UK is considered as a ‘normal’ member state when it has announced that it will opt-in, Denmark experiences a higher support for its ideas on Schengen related issues, because even though it does not have the right to vote, it implements legislation automatically, when it builds on Schengen. The Danish officials believe that this gives Denmark more goodwill than when its opt-out applies entirely.65

Europeanization strategies and EU dynamics

As in the British case, the Danish position within JHA is not as straightforward as one would think. Denmark is not a foot-dragging member state despite its opt-out, but has been pace-setting on a number of areas such as the promotion of regional protected areas. During the Danish Presidency in the second half of 2002, one of the highest priority areas was to ensure that the Tampere programme on an area of security, freedom and justice was implemented on time.66 While Denmark has not

63 However, the opt-outs does not apply to measures the third countries whose nationals must be in possession of a visa when crossing the external borders of the member states, or measures relating to a uniform format for visas, cf. Article 4 of the Protocol. 64 This special procedure is much debated and criticised by legal scholars for being “complex [and] illogical” (Tuytschaever 1999: 101; Shaw 1998). Indeed, it is the result of a rushed through agreement and its legal consequences were probably not well understood at the time of drafting (cf. Dansk Udenrigspolitisk Institut 2000). According to Jo Shaw, “Denmark seems to be sacrificing democracy and openness on the altar of resistance to encroachment on its state sovereignty. This does seem a little perverse” (Shaw 1998: 101). 65 Interview, May 10, 2006, Danish EU Representation; Interview August 28, 2006, Danish Ministry of Refugees, Immigrants and Integration Affairs. 66 Council of the European Union, “Status report on the follow-up to the Seville conclusions on asylum and migration”, 14707/02, Brussels, 22 November 2002.

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encouraged the introduction of QMV in the area of JHA, it has not tried to prevent it either. Denmark did not belong to the blocking group of states when the JHA ministers discussed the proposal to move articles from the third to the first pillar. This is somewhat surprising because Denmark would loose not only an informal veto as the UK, but also a formal vote on cooperation within JHA on terrorism and police measures. The main agenda of the summit was the fight against terrorism and the security of European citizens and given the salience put on these issues, Danish officials did not see any room for special treatment due a ‘domestic problem’ and they did not want to put attention on the fact that Denmark had a problem. When I asked a senior Danish diplomat, he said that it would not be ‘appropriate’ for Denmark to veto the proposal.67 This example of a Danish non-decision (the decision not to veto the proposal) suggests that the room of manoeuvre of Denmark is interpreted based on the norms of appropriateness rather than the formal veto-possibility.

Generally, the Danish government (and most of the opposition) would like to have the opt-out removed. To most officials working with the opt-out, this self-imposed marginalisation is a ‘pain in the neck’.68 However, instead of going for a difficult referendum on removing the Danish legal opt-out, the government is interested in uploading its strict national policy so that the difference between Danish and EU policy is narrowed. In fact, the Ministry of Refugees, Immigrants and Integration Affairs has as a clear (internal) policy that Denmark should participate actively in all meetings and if possible further Danish interests even in areas covered by the opt-outs.69 Just as other member states, Denmark tries to upload its own asylum practices promoting the idea is that Denmark is a ‘credible’ partner in JHA (Byrne et al. 2004). The government is making an effort to influence the negotiations on the directives despite the opt-out and Danish diplomats will contribute with technical considerations, proposals for compromises and ideas. If it is able to frame its proposals as ‘European solutions’, Denmark may be able to influence the decisions.70 Thus, it is a standard operating procedure that all questions concerning the opt-outs are discussed in the margin of the meetings and at the lowest possible level. The following statement from a Danish official from the Danish Ministry of Refugees, Immigration and Integration Affairs illustrates this attempt to ‘hide’ the opt-out. She explains why she avoids mentioning the opt-out during meetings,

“Personally, I think that it’s embarrassing when member states argue by referring to national interests and problems instead of trying to find common ground”.71

This quotation illustrates the internalization of norms of appropriateness and underlines that member states are not ‘allowed to refer to national interests’ during meetings. Opt-outs are clearly related to national interest and therefore Danish officials reframe problems related to opt-outs as European problems.

67 Interviews, February 2, 2006, Danish Ministry of Foreign Affairs. 68 Interview, February 28, 2006, Danish Ministry of Foreign Affairs. 69 Interview, August 25, 2006, Danish Ministry of Refugees, Immigrants and Integration Affairs. 70 This was also anticipated by the Danish officials in the memorandum to the legal proposal on Denmark’s accession to the Amsterdam Treaty (Lovforslag L2, Folketingsåret 1997/98: 247, see also Nielsen 2002). 71 Interview, August 22, 2006, Danish Ministry of Refugees, Immigrants and Integration Affairs

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Another important strategy related to the Danish opt-out is the negotiation of parallel agreements. It is an example of Europeanization by imitation unknown to most of the public. Denmark has adjusted its domestic legislation in order to conclude intergovernmental parallel agreements associating Denmark with other legislative measures under Title IV “[…] which are considered as being a vital interest to the country” (Vedsted-Hansen 2004: 67). This is a clear example that Europeanization does not require pressure from the EU, but may be a political advantageous measure (see Bulmer and Radaelli 2005: 347). As in the UK, the Danish government decides which legislation represents a vital interest to the country. However, the government has only applied for parallel agreements on those policy areas which are not too political sensible and not those on immigration. In practice, Denmark concludes negotiations with the Commission in order to be associated with the legal measures that the other member states have agreed on within the area where the Danish opt-out is applied (immigration and civil law). These negotiations are very time-consuming and difficult. If Denmark is granted a parallel agreement, practice is that the government copies the EU measure in the form of Danish law which is then subsequently agreed on by Parliament. This gives the parliamentarians a clear veto possibility, which has however never been used as the majority of Parliament has supported the parallel agreements.72 The real constraint in the governments’ strategy to imitate EU law through parallel agreements is the legal and political interpretation by the European Commission. So far, Denmark has applied for six parallel agreements, but interestingly the Commission has only granted four:73

1. Dublin II: Council regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.

2. Eurodac: Council regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention.

3. Brussels I: Council regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

4. Service of documents in cross-border cases: Council regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.

The Commission refused to grant Denmark parallel agreements with respect to the regulation on insolvency proceedings and the regulation on jurisdiction and the recognition and enforcement of judgments in matrimonial matters (Bruxelles II). The position of the Commission is that the following conditions apply if Denmark is to have a parallel agreement:

72 In order to ensure the Parliament’s approval, the Foreign Minister has held meetings with the European Affairs Committee to get a mandate prior to the negotiations of the parallel agreements. Furthermore, the Ministry has made a great deal of energy to hold them continuously informed, Interview, February 28, 2006, Danish Ministry of Foreign Affairs. 73 In practice, the Commission authorizes the Council to negotiate the parallel agreements with Denmark, thus the Commission is the gatekeeper of downloading in this issue.

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1. Parallel agreements could only be of an exceptional and transitional nature, 2. Such an interim solution should also only be accepted if the participation of Denmark is fully

in the interest of the Community and its citizens 3. The solution on a longer term is that Denmark gives up its protocol on Justice and Home

Affairs. The conditions for downloading with regards to parallel agreements depends on the political will of the Commission, if it is not in the interests of the EU – which are defined by the Commission – Denmark cannot formally download EU legislation within an area where it has opted out. Therefore, Danish diplomats use a considerable amount of energy and time to convince the Commission that it is in the interest of the Union that Denmark gets parallel agreements.74

Moreover, Denmark voluntarily ‘shadows’ EU legislation in the same way as the UK, despite the sensitivity of asylum policy and its legal opt-out (Vedsted-Hansen 2004: 66). Denmark has amended legislation in accordance with general EU developments for purely political reasons, that is either because more restrictive domestic rules or because “EU legislative tendencies can be invoked as a pressure or a legitimisation for restricting Danish domestic law”. As a Danish official explains, “We always make sure that our legislation is in harmony with that of the EU even though we have an opt-out”.75

Domestic constraints

Contrary to the UK, the Danish government can only get rid of the opt-out with a referendum and this contributes to making JHA cooperation within the EU a potential sensitive issue. While the debate on immigration has become high politics in Denmark as elsewhere in Europe, immigration is almost solely discussed in terms of control, security, restrictions, and as a threat to the state-financed, tax-based social welfare system. The legal opt-out is used to assure EU critics and especially right-wing parties such as the Danish People’s Party (Dansk Folkeparti) that EU decisions on, for instance, family reunion will not affect Denmark (Stenum 2003: 9). Contrary to the British government, which can afford to ignore the opinion of Parliament, Danish ministers have to be much more careful. They depend on an explicit mandate and Parliament can punish them if they do not follow that mandate. Officials make a great effort to ensure that the government is never accused of manipulating with the opt-outs.76 This also explains why the Danish government has only pushed for parallel agreements on politically insensitive areas and why a large part of an official’s job is to prevent parliamentary criticism, informing the minister and underlining the technical as opposed to the political character of JHA.77 This said a majority of the Danish Parliament generally supports the Government’s strategy with regard to the legal opt-out. It has supported the application for parallel agreements and openly or tacitly backed the pace-setting strategy within JHA (Larsen 2006: 96). Furthermore, the Danish 74 Interviews, February 28, 2006, Danish Ministry of Foreign Affairs 75 Interview, February 28, 2006, Danish Ministry of Foreign Affairs. 76 Interviews, August 22, 2006, Danish Ministry of Refugees, Immigration and Integration Affairs. 77 Interviews, August 22, 2006, Danish Ministry of Refugees, Immigration and Integration Affairs.

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Parliament does not have the possibility to ratify the ‘hidden’ Europeanization in the form of imitations of EU law or informal attempts at uploading. However, contrary to the British case, it is difficult to find examples of the government not giving full information to the Parliament within the area of JHA (such as the British government’s attempts not to discuss the British uploading strategy concerning ID cards and the ECJ cases). Rather the Danish ministers and officials are balancing delicately between the domestic arena and the norms of appropriateness in the EU.

Case study: The Directive on Family Reunification

The following case study is critical in the sense that both legal and domestic constraints are considerable, but despite this Denmark was able to upload its national policy. During the negotiations on the Directive of Family Reunification, Denmark played a pace-setting role and was able upload national policies within the area of asylum and immigration where it has an opt-out. In order to do that, Denmark had to pretend that was a ‘normal’ member state despite the fact that it would never be able to implement the Directive.

Denmark’s Alien Act of 2002 is one of the strictest legislation on aliens in Europe. The strict clauses in the law are a reaction particularly against arranged and forced marriages of non-European immigrants. For example, the immigration law in Denmark requires both of the spouses to prove that they enter the marriage contract voluntarily. On December 1, 1999, the Commission adopted the initial proposal for a Directive on Family Reunification. After negotiations in the Council and following the recommendations by the European Parliament, the Commission presented the (first) amended proposal on 10 October 2000. However, the first directive was considered ‘too liberal’. In response, the Commission presented a second amended proposal on 2 May 2002. In both directives, it was suggested that the age limit for family reunification should be 18. Minister of Refugees, Immigration and Integration Affairs Bertel Haarder was able to promote the Danish hard-line policy on the issue of family reunification.78 Thus, Danish together with Dutch officials succeeded in influencing the Directive, raising the age limit of the sponsor and his/her spouse from 18 to 21 years. A revised stricter directive was agreed upon by the member states during the Danish Presidency and was formally adopted by the Council on 22 September 2003. Accordingly, member states may set a minimum age of 21 for both parties “in order to ensure better integration and to prevent involuntary marriages.”79 These words are ‘Danish’ and had been forcefully argued for throughout the negotiation process. During the Danish Presidency, the Ministry for Refugees, Immigrants and Integration was active in promoting its concept of integration arranging conferences and initiating informal debates between the ministers on ‘best practices’.80 By arguing not in terms of national interest, but in terms of practical experience and problem solving, Bertel Haarder and his team of officials promoted a stricter directive. Domestically, the pro-migrant part of the Parliament was not supporting this policy,

78 Interview, February 28, 2006, Danish Ministry of Foreign Affairs; Interview, 28 August 2006, Danish Ministry of Refugees, Immigration and Integration Affairs. 79 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, http://eur-lex.europa.eu/LexUriServ/site/en/oj/2003/l_251/l_25120031003en00120018.pdf 80 Statement by the Minister for Integration on behalf of the Council at the European Parliament's part-session in Strasbourg on 18 December 2002, “The Danish Presidency”, ENAR fact sheet no. 15, 15 October 2002.

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but most MPs backed the strategy. The Minister underlined the Danish pace-setting strategy to the European Affairs Committee, when asked about the negative consequences of the opt-out,

I would like to add that we have succeeded in presenting a very offensive Danish profile even in the Council where the opt-out is most important, namely the Justice and Home Affairs Council, which as you know deals with measures covered by the opt-out as well as measures not covered by the opt-out. I am the Chairman and none of my colleagues has complained about Danish passivity, certainly not after the informal meeting we had 14 days ago and the time schedule we have proposed.81

Despite the fact that Denmark does not have the opt-in opportunity, Denmark is still Europeanized and Europeanizing within policy areas where it has opted out, this involves both downloading and – more surprisingly – uploading of policies.

Playing ‘real’ members

Why have the United Kingdom and Denmark engaged actively in Europeanization processes on an area where they have opted out? Why are they not punished harder by the other member states? And why do the domestic constituencies not represent a bigger obstacle to Europeanization? In addition, why do the formal legal opt-out rules sometimes seem to be less important than informal norms?

This paper provides some of the answers. The assumption that member states generally are interested in uploading their national policies also holds for member states that have opted out. Thus, an opt-out does not imply that member state will refrain from seeking influence on the EU arena, as some rationalist orientated approaches seem to suggest (Mouritzen and Wivel 2005). Within JHA, the UK and Denmark are not foot-dragging member states, but fence-sitting and on occasions even pace-setting. Thus, member states with opt-outs are still interested in uploading their national policies in JHA. The main reason that it is possible for the UK and Denmark to upload their policies despite their opt-outs is the consensus-oriented decision-making mode in the JHA Council, which makes formal voting power less important and informal norms and good arguments decisive. Furthermore, and maybe more surprising, also the top-down dimension of Europeanization applies to member state that have opted out. The UK and Denmark are either forced to download EU legislation or do it voluntarily even in sensitive areas where they at first glance seem to have opted out.

The legal description and interpretation of the opt-out make a difference. While legal scholars argue that the British opt-out rules, “[…] clearly militate against adoption of a common European asylum policy as they do against the principles of communitarization itself” (Juss 2005: 783), practice is not as straightforward. Thus, the opt-in possibility is a tremendous opportunity for the UK to influence legislation and propose a ‘British’ version of JHA. Conversely, the most important constraint on Danish government’s Europeanization strategy has been the legal specificity of the opt-out. This supports the hypothesis that the less the opt-out is legally formalized, the more it is possible for member states with opt-outs to download European policies in areas where they have opted out. However, even with the legally less advantageous opt-out, Denmark is engaging in policy-making processes despite its complete loss of voting right and that it is never formally implementing legislation. Furthermore,

81 Spm. nr. US 1 - besvaret 02/10-2002, http://www.folketinget.dk/Samling/20021/sporgetime_sv/US1.htm, Author’s translation.

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both member states have shadowed EU legislation within areas where they have opt-outs. The legal limits to downloading with opt-outs are contested through a continuous ‘interpretation battles’ between the member states opting out and the Legal Service of the Council and Commission in this paper illustrated by the cases of the legal basis of new proposals (UK) and the negotiations on parallel agreements (DK).

The informal interpretation of the British opt-in privileges a member state that has opt-out compared to a member state that has not as the British officials are allowed to block new legislation despite the protocol, which should prevent this from happening. Existing rationalist approaches cannot explain this and the constructivist assumption presented in the existing literature that opt-outs – because they represent a breach of norms – would lead to marginalisation does not seem to be valid either. This is not because constructivism is unsound or that opt-outs are unproblematic, but socialization leads to a pragmatic problem-solving approach with the norms of consensus and accommodation of differences. On the European scene, it is partly because of, not despite of, socialization that the UK and Denmark are able to participate in decision-making processes. In fact, the norms of ‘getting everybody on board’ and ‘seeking consensus’ help member states with opt-outs. In order to exploit these norms, the UK and Denmark must be able to frame their desire to upload in terms of a European interest and ‘hide’ the fact that they have opt-outs. These findings provide support for the hypothesis that the more the negotiations are driven by the search for consensus, the more it is possible for member states with opt-outs to upload national policies in areas where they have opted out. However, it should be underlined that a real test of this hypothesis demands a case with hard bargaining and voting (which however is difficult to find in JHA).

The British and Danish governments face domestic constraints on their strategies in the EU, but they are still able to achieve considerable autonomy from their Parliaments. Despite a rather strict formal ratification process in Denmark and despite high domestic salience in the UK and Denmark, governments still push on with a (selective) Europeanization strategy. While the opt-outs can be seen as ‘tying the hands of governments in European affairs’ (Hedetoft 2000: 301), they can also become instruments of executive control over a policy-area as in the case of the UK. When the government takes an opt-in decision, the British government acts autonomously vis-à-vis the other EU member states and independently from domestic constraints. In the British case, the Houses do not have a formal veto right. Formal downloading is more constrained in Denmark than in the UK as the careful Danish strategy concerning e.g. parallel agreements reveals. Furthermore, Danish ministers and officials work under the ‘shadow of a lacking mandate’ in the European Affairs Committee and this has a disciplining factor. This paper therefore found support for the hypotheses that the less domestic constraints, the more is it possible for member states with opt-outs to upload national policies or download European policies in areas where they have opted out. Generally, however, the Danish Parliament is supportive of the Danish governmental line in JHA, so a real test would demand a situation where the Parliament and Government strongly disagrees (which is very rare in Denmark).

Parliaments are not against uploading as such. Rather, in the British case the Parliament supports uploading in other areas than the Government. In the Danish case, there is more consensus on what should be uploaded within JHA with the exception of the pro-migrant MPs who regret that Denmark is promoting a hard-line policy in the EU. Finally, it should be noted that Parliaments are not able to

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control the informal political initiatives and practices related to the diplomacy of opting out (bilateral contacts with other member states, informal talks in the margins of the meetings). Table 5 sums up the findings of the paper.

Table 5: Europeanization despite opt-outs in Justice and Home Affairs

Opt-out/in Downloading Uploading

United Kingdom

Formal opt-out with opt-in possibility and informal right to block Formal and informal right to propose new policies

Europeanization (opt-in)

Europeanization by imitation (copying) (Regulation on Biometrics)

Formal participation (opt-in)

Informal participation and proposing

Bilateralism

(Regulations on Biometrics and Border Agency)

Denmark Formal opt-out with no opt-in possibility and informal right to propose new policies

Europeanization by coercion (Schengen)

Europeanization by imitation (copying parallel agreements)

Informal participation and proposing

Bilateralism

(Family Reunification Directive)

Conclusion

The British and Danish opt-outs are ambiguous attempts at avoiding Europeanization. In practice, both the UK and Denmark take part in the shaping of new EU legislation even in politically sensible policy-areas covered by their opt-outs. The idea that opt-outs on the one hand ‘exclude’ member states from political influence and on the other hand ‘protect’ member states from unwanted Europeanization should be nuanced. The integration dilemma between influence and autonomy is relatively blurred in practice. With the diplomacy of opting out ministers and officials attempt to eat the cake and have it too and this paper has argued that this is possible to some extent.

First, the British and Danish governments would often wish that they did not have opt-outs so that they could participate in the EU without constraints. Therefore, officials and ministers will try to compensate for the opt-outs in order to continue to up- and download policies. Existing rationalist and constructivist approaches to opt-outs have based their analyses on the idea that the opt-outs are legally and politically clear, so that if an opt-out applies, the member state either looses its voting right or breaches the norms by not being a ‘good European’. I have argued that existing research on opt-outs has somewhat misread the norms in the Council of Ministers putting too much weight on the norms as constraining rather than enabling inclusive diplomatic behaviour. While the other member states, the Commission and the Council Secretariat may find the opt-outs problematic, in practice they let the UK and Denmark play real members in order to ‘get everyone one board’. Socialization theories provide a credible answer for why the British and Danish governments are allowed to play active roles in JHA.

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Second, the ambiguity of opt-outs is accentuated by the fact that many British and Danish parliamentarians would also like to lift them or at least interpret them in a more enabling manner. Even relatively strong Parliaments such as the British and Danish may therefore not provide effective control with national opt-outs. Furthermore, the critical case where the British Parliament was very negative towards Europeanization shows that British ministers can almost ignore protest from Parliament. In contrary, the Danish government is both more legally and parliamentary constrained than the British government when it comes to its diplomatic initiatives.

Third, existing opt-outs have not protected the UK and Denmark from adaptational pressure from the EU. Both the UK and Denmark may be forced to or find it politically opportune to download EU policies. Formal downloading of policies has legal limits, however, and socialization and informal norms cannot compensate for these legal limits. Accordingly, the more formalized JHA becomes, the less easy is the diplomacy of opting out.

From a democratic perspective, Europeanization cum opt-outs raises the question of what the opt-outs really are there for, if they do not safeguard national sovereignty in the area of JHA. What do member states gain from opting out of the EU then? To most officials working with the opt-out/ins this self-imposed isolation is a ‘pain in the neck’. The diplomacy of opting in and out of JHA involves informal compensatory work and legal disputes. Thus, any attempt to increase parliamentary control with the national exemptions will have to acknowledge the high degree of socialization on the EU level and the continuous debate on the ‘appropriate’ legal and political meaning of the opt-outs.

How far can these conclusions be taken? This paper should not be read as an argument that opt-outs are unproblematic or without dramatic effects in terms of legal exclusion and political marginalisation. There are additional costs of opting out in terms of time-consuming compensation work and extensive role-playing. Moreover, this paper has only provided a qualitative analysis. To get the whole picture there is a need to examine the quantitative extent of these different practices. Finally, this paper has only analysed the diplomacy of opting out and in within JHA. To understand the diplomacy of opting out more generally, JHA should be compared with opt-outs from the two other relevant policy areas, EMU and defence.

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