The benefits of increased EU integration weren’t worth the cost to national sovereignty. This was the symbolic message sent by the outcome of December’s referendum, in which 53% of Danes voted ‘No’ to ending Denmark’s opt-out of justice and policing cooperation.
Until now, the opt-out has had little impact on Denmark. But in mid-2017, when Europol transitions from a supranational organisation to a full EU agency, the opt-out will prevent Denmark from remaining a member. This is a major blow for its ability to tackle cross-border crime. Last year, Danish police searched Europol’s EIS database 71,000 times, looking for evidence and suspects across European borders.
December’s referendum asked Danes whether they wanted to replace the opt-out with a case-by-case ‘opt-in’ measure. This would allow the Danish parliament, Folketing, to join different areas of cooperation within policing and justice on a case-by-case basis. Voting ‘Yes’ also included 22 areas of cooperation, from remaining in Europol, to joining EU cybercrime regulations.
While the opt-in enjoys wide support in parliament, it had to be sent to a referendum. This is because Folketinget requires a super majority when deciding legislation that gives away sovereignty, which an opt-in measure does. The 5/6 super majority was prevented because of opposition from the populist Danish People’s Party (DF) and far-left Red-Green Alliance (Enhedslisten).
While these parties celebrated following the ‘No’ vote, Denmark’s policing abilities will be significantly weakened when it is forced to withdraw from Europol. For while DF and Enhedslisten argue that Denmark can remain a member through a so-called parallel agreement with the EU, the highly technical procedure has no guarantee of being approved by the European Commission.
Sound complicated? Many voters thought so, with one telling the BBC the referendum was “the most baffling in the history of the EU”. In the lead-up to the referendum, a third of voters said they were undecided.
Some commentators interpreted the result as a sign of growing Danish insecurity about giving up power to the EU. Certainly, a ‘yes’ outcome represented the possibility of even greater integration with the EU down the road. An ‘opt-in’ arrangement meant a simple majority in Folketinget would be able to sign on to more areas of EU cooperation in the future, such as an EU asylum programme, without first putting it to referendum.
Derek Beach, Associate Professor from the University of Aarhus, doesn’t agree. He argues that the image has been skewed because more EU-sceptic voters were drawn to the polling booths.
“Many people conflated the ‘No’ result with Danes wanting less EU. What actually happened is that the people who wanted greater EU cooperation stayed home, while the EU sceptics went out and voted. It’s the status quo bias – it’s easier to get people to vote in favour of the status quo than vote for a major change.”
He says that overall national attitudes could look very different:
“Voter turnout in centre-left pro-EU districts was lower than in other areas. When only 72 percent vote, it really matters who does turn out. If turnout was 85 percent, we would have seen a Yes vote,” he explains.
Parliament vs the people
For DF, the result points to growing Euroscepticism in Denmark.
“The result can only be interpreted as an unwillingness to hand over yet more sovereignty to the EU,” wrote DF MP Peter Skaarup in an op-ed for Politiken. “The EU is a bureaucratic construction comprised of a political elite who are pushing politics that are not always in line with the interests and values of the European people.”
Currently, a cross-aisle majority of five pro-EU parties set the political agenda for Denmark’s position on the EU. DF leader Kristian Thulesen Dahl argued that the referendum result demonstrates that the time has come for Eurosceptic parties, like his own, to be included.
“We would like to see an EU politics that is based on support from a far wider set of Danes,” Dahl told Politiko. “The ‘Yes’ side needs to listen to the ‘No’ side. We also need to ensure that [PM Lars Løkke Rasmussen] secures broader support for Denmark’s approach to the EU before increasing European cooperation.”
Fighting for Europol
Immediately following the referendum, the PM travelled to Brussels to meet Commission chairman Jean-Claude Juncker and European Council President Donald Tusk where he learned that without the opt-in, Denmark could not become a full Europol member.
“The message was that it is going to be very, very difficult,” said Rasmussen on his return. The sentiment was echoed by Juncker’s spokesperson, Margaritis Schinas.
“There was agreement that experts would need to sit down and look at the possibilities for a limited legal and political cooperation. Everyone has accepted that it will be a long and difficult process,” he told Politiko.
To remain in Europol, Denmark must begin the complex, bureaucratic path to a parallel agreement. It must first apply to the European Commission, then secure the approval of all EU States to begin negotiations, before the EU Parliament approves the agreement.
DF and Enhedslisten have argued that securing a parallel agreement will be easy, because the EU has an interest in keeping Denmark involved. But there are plenty of reasons to be wary. Firstly, the EU has rejected two out of Denmark’s four previous attempts to secure parallel agreements. Second, some parallel agreements can take up to five years to negotiate, meaning Denmark will be forced to drop out regardless, even if only for a few years. This seems likely given that Denmark can’t even begin negotiating the parallel agreement until the European Parliament formally agrees the Europol reform in April 2016.
According to Bjarke Møller, director of thinktank Think Europa, there are many other factors that make it unlikely for Denmark to secure a parallel agreement by mid-2017. The UK renegotiation of membership, as well as reform of Schengen and the Dublin rules will feature much higher on the EU’s list of priorities. Even then, Denmark will be worse off than today.
“It is not likely that Denmark can secure a parallel agreement for Europol that gives Danish police the same conditions as the current police cooperation,” says Møller, arguing that the government should hold another referendum before the end of 2016, though this time for a limited opt-in model.
Europe needs Denmark
It’s a bad time to be leaving Europol, especially for a member of the open border agreement Schengen – the recent Paris attacks and ongoing refugee crisis show that borders cannot contain crime, terrorism or refugees. EU counter-terrorism coordinator Gilles De Kerchove has said that by leaving Europol, Denmark will miss out on new anti-terrorism powers such as increased data sharing with EU border agency Frontex.
“When you see the added value of the (security) tools we are developing … you need to be on board,” De Kerchove told Reuters.
Despite the negative outlook, Beach still believes that Denmark stands a good chance of negotiating a parallel agreement.
“There’s a lot of evidence to suggest that Denmark and Sweden have done very well in EU negotiations because their opt-outs make them even better more prepared and internationally diplomatically aggressive. It’s one area where they punch above their weight.” M