Behind the scenes of differentiated integration: circumventing national opt-outs in Justice and Home Affairs

Abstract

This article 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. On the surface, both countries have chosen to avoid further integration within this policy area to safeguard national autonomy. Foreign policy experts have argued that national reservations lead to the loss of influence and possibly second-class membership, and legal scholars describe substantial opt-outs as a 'hijacking' of the acquis communautaire. This article demonstrates that opting out does not necessarily imply that member states are out in the cold. Both the UK and Denmark, it is argued, have influence and adapt to new EU legislation, even in politically sensitive areas covered by their protocols. National opt-outs are pragmatically circumvented in the consensus-oriented Council of Ministers.

Picking and Choosing the ‘Sovereign’ Border: A Theory of Changing State Bordering Practices

“…This allows police officers from one member state to cross the border and operate inside the territory of another member state, provided that they coordinate their activities with the national police authorities. 56 Today, the EU member states have joint border patrols, joint surveillance operations and joint investigation teams. There is increasing exchange of information and pooling of equipment; national police forces have direct access to other member states' fingerprint, DNA and vehicle registration databases.…”

The New Intergovernmentalism: European Integration in the Post‐Maastricht Era

“…Though conflict remains (for instance, in the falling out over Iraq or disagreements over financial support for Greece), participants seek solutions from within the process and less through vetoes or exits. Where individual Member States have negotiated opt‐outs to specific aspects of EU activity (for example, the UK in justice and home affairs), the attachment to deliberation and consensus has prevented their exclusion from negotiations in these areas (Adler Nissen, ; Holzinger and Schimmelfennig, , p. 301).…”

On the Methodology of Studying Differentiated (Dis)integration: Or How the Potential Outcome Framework Can Contribute to Evaluating the Costs and Benefits of Opting In or Out

“…Schimmelfennig () provides evidence of such mechanisms related to the Banking Union. Drawing on sociological theory, Rebecca Adler‐Nissen (, ) gives a qualitative account of the effects of not joining a differentiated policy regime for outsiders. Mirroring the network analysis findings of Naurin and Lindahl (), she shows that the outsiders are not stigmatized or excluded from European decision‐making circles.…”