Danish PM, Lars Loekke Rasmussen accepts that the government has lost the referendum on adopting EU rules, December 3, 2015. Demotix/Ole Jensen. All rights reserved. On December 3, 53% of Danish voters rejected a proposal of six parliamentary parties to replace Denmark’s long-standing opt-out from the EU’s justice and home affairs system with a case-based opt-in model.
The yes-vote would have ensured sustained participation in Europol, the EU’s police agency, plus the adaption of 22 additional legislative files. What started out as a practical issue became a general opinion poll on relations with the Union with likely impacts on Danish EU policy.
Back in June 1992, a slim majority of Danes voted against the Maastricht Treaty which created the European Union and led to the introduction of the euro. The failure resulted in the Edinburgh Agreement, a deal which accepted the Danish “national compromise” and kept Denmark within the EU, on condition that the country was granted exemptions, so called “opt-outs”, on four areas of cooperation: the adoption of the euro, security and defence, justice and home affairs (JHA), and EU citizenship.
With the addition of the Edinburgh Agreement, a new referendum ratified the Maastricht Treaty in 1993. The four opt-outs have since defined – and to an increasing degree limited - Denmark’s participation in the European integration process.
The controversy around these exemptions has long been a focal issue in the Danish EU-debate. A referendum in 2000 already rejected a proposal to introduce the euro. Since 2007, several referendums have been proposed on one or more of the opt-outs, but up to this point none have been realized. The complexity of the issue is due to a variety of factors.
First, as in most other EU member states, there is vocal Euroscepticism on both sides of the Right-Left political divide. The most influential anti-EU force, the right-wing populist Danish People’s Party became Denmark’s second largest party at the June 2015 elections, with 21% of the votes. In the no-campaign they stood united with green socialists Red-Green Alliance (7,8%) and the libertarian Liberal Alliance (7,5%), the latter – like the Danish People’s Party – an external supporter of the minority ruling liberal government. Notably, the fierce insistence to sustain full sovereignty in immigration policy and policies concerning third country citizens has been and remains the key issue in Denmark’s opt-out from justice and home rules.
What is even more important and became again obvious on December 3, is that Danes are traditionally more Eurosceptic than their politicians. The six parties endorsing a yes-vote represented more than 60% of the parliamentary mandates and were backed by all trade unions and industry organizations alike. Still, they were rejected by an electorate fundamentally divided on EU-issues.
Second, the assessment and the practical relevance of the individual opt-outs vary widely, causing considerable discord in the public debate. The euro opt-out has long been untouchable and the European sovereign debt crisis only cemented this popular sentiment.
The opt-out from defence, that is non-participation in EU-led peace-keeping missions, was meant to go to referendum, but the key point on that one is that it generates few practical difficulties for Denmark. As regards European citizenship, the opt-out in 1993 was motivated by concerns that it would, in time, replace national citizenship. However, the Amsterdam Treaty (1997) clarified that EU citizenship is only supplementary, effectively nullifying Denmark’s opt-out.
Unlike the three opt-outs above, the one from justice and home affairs (now officially called the Area of Freedom, Security and Justice) has proved increasingly detrimental to Danish interests. Justice and home rules cover a vast field of cooperation - including immigration and asylum policy, judicial and police cooperation and others - where Denmark’s original intentions and the development of the integration process have moved apart.
Back in 1993, the Edinburgh Agreement established that Denmark participates only in those areas of justice and home affairs managed in an inter-governmental framework, that is via consensus-based agreements between all member states which are then made into national laws. In other words, Denmark refused to transfer sovereignty to EU institutions on justice and home-related matters. This caused little difficulty at that point, as the intergovernmental aspect was dominating in this particular field of cooperation.
Over time, however, justice and home rules have gradually joined the supranational EU-level, leaving Denmark by and large out of the subsequent developments. At the supranational level, sovereignty is delegated to the EU: decision-making is majority-based, rules are directly binding in member states and the European Court of Justice can sanction the breach of EU-law. First, the Treaty of Amsterdam transferred the areas of illegal immigration, visas, asylum and judicial cooperation in civil matters onto the supranational level. Then, the Treaty of Lisbon did the same with nearly full judicial and criminal cooperation. This development has been informed by the increasing focus on cross-border challenges such as cross-border criminality, human trafficking, cybercrime and pan-European terrorism threats, as well as by the intention to harmonize procedures in civil, family and commercial law.
For clarification, Denmark has not been entirely shut out. The country signed the Schengen agreement long before it became EU law and through so called “parallel agreements” – post-legislation special agreements between Denmark and the EU – joined 4 additional legislative acts, including the infamous Dublin Regulation and the Eurodac Regulation, which regulate the procedure of asylum claims.
At the same time Denmark have stayed out of 50-some additional directives, including all others on immigration and asylum (definition of asylum, rules on family reunification, etc.). It was because of the opt-out that Denmark was exempt from the EU’s watershed decision in September on the mandatory quota-based relocation of 120,000 refugees although after some hesitation it voluntarily offered to take 1000. Notably, the fierce insistence to sustain full sovereignty in immigration policy and policies concerning third country citizens has been and remains the key issue in Denmark’s opt-out from justice and home rules.
All in all, the opt-out not only secured Denmark’s non-participation in EU-level immigration rules but also made sure over time that the country had gradually fallen out of a rapidly developing policy area causing tangible drawbacks not only for the everyday life of its citizens but also impacting on the prosperity of its businesses. Caught in the cross-fire of complicated EU-law arguments, voters remained confused and uninformed.
This development has been known for years and has fueled repeated calls from pro-EU parties for replacing this opt-out with the flexible and case-based opt-in model, the same kind that the UK and Ireland already have. The possibility of the opt-in is established for Denmark in Protocol 22 of the Lisbon Treaty. If adopted, it would enable the parliament to accept or reject legislation on a case-by-case basis.
The final push which made that move an urgent necessity was the changing legal framework of the EU’s joint police law enforcement agency Europol, where national liaison officers exchange information and have instant access to the Europol Information System (EIS) in their daily operations against cross-border criminality.
According to a new regulation, Europol, which up to now has been an intergovernmental body (making Denmark’s participation in it unhindered), will as of 2017 become a clear-cut EU agency under supranational jurisdiction. Accordingly, Denmark’s opt-out threatens to push her out of Europol. Being very much on the receiving end of intra-EU cross-border crime, remaining a full member of the agency is an key Danish interest. Last year alone, Danish police officials searched 71,000 times in the EIS database, making Denmark the biggest consumer of Europol’s information sharing.
The opt-in model
In order to ensure sustained membership in Europol, six parties (the now-ruling Liberal Party, the then-ruling Social Democrats, the Social Liberals, the Socialist People’s Party, The Alternative and the Conservative People’s Party) reached an agreement earlier this year such that after the elections in June they would begin to replace the opt-out with the opt-in model.
In addition to opting in to the new Europol regulation, the yes-parties also proposed to opt-in to 22 additional directives. Seven pertained to criminal law and police cooperation (combating human trafficking, sexual exploitation of children, etc.) while 15 concerned civil, family, and commercial law (EU insolvency proceedings; recognition of judgments in matrimonial matters, etc.). By the same token, Denmark would have stayed out of another 28 directives, including, of course, every single one on immigration and asylum. Motivated by concerns that next years’ BREXIT-debate would hitch-up local anti-EU sentiments, newly elected liberal Prime Minister Lars Løkke Rasmussen decided to act fast and announced the referendum date in the middle of August.
By all objective assessments, the opt-in model is a more beneficial and sensible arrangement. With the opt-in, Denmark could preserve its fundamental non-participation in justice and home affairs while at the same time it would be free to hand-pick any preferred rule from it. As to future, yet-to-be-adapted directives, the opt-in would have no binding power. Here, Denmark would be given as many as three options: either to say an instant no to a proposed rule, to opt-in post-legislation or to opt-in from the start of the legislation process, thereby gaining influence to shape the outcome. As a matter of fact, the opt-in model is less about giving up the opt-out than about upgrading it. As the prime minister once put it, the opt-in is a luxury buffet.
But no matter how attractive the opt-in model seemed to be, one major obstacle made it impossible to obtain. According to the Danish constitution, every instance of “surrendering sovereignty” - clearly the case here as the opted-in directives would be directly binding in Denmark – must be ratified by either a 5/6 majority of the Parliament or by a plebiscite.
The 6 yes-parties did not have a 5/6 majority, but the electorate had been promised a referendum on any of the opt-outs, anyway. Motivated by concerns that next year’s BREXIT-debate would hitch-up local anti-EU sentiments, newly elected liberal Prime Minister Lars Løkke Rasmussen decided to act fast and announced the referendum date in the middle of August.
But what in the summer seemed like a certain and easy yes, ensuring the prolonged membership in the EU’s joint police agency, became something of a nightmare scenario for the yes-side by the final stretch of the campaign. As late as October, all opinion polls suggested a solid backing for the yes-vote, but by voting day the no-side had managed to turn the tide.
No doubt, the fiasco was to a certain extent self-inflicted. The yes-campaign started late, lacked dynamism and dedicated involvement from several pro-yes party leaders. In fact, it may have built on some misguided core assumptions. Using the obvious argument that cross-border challenges must be dealt with cross-borders and endorsing EU-level cooperation on fighting crime, drug trafficking, child pornography and the like proved inefficient against the ever-working formula of all anti-EU forces: self-determination.
In addition, the unfolding refugee crisis and Brussels’ seeming inability to offer effective remedies became something of an external game-changer. In addition, the unfolding refugee crisis and Brussels’ seeming inability to offer effective remedies became something of an external game-changer. In this sense, the timing couldn’t have been more unfortunate. No sooner had the referendum date been set than the refugee influx hit Denmark. Although most migrants only transited on their way to Sweden, there still occurred a significant increase in asylum claims. The government now simultaneously advocated to opt-in to some justice and home rules and emphasized that Denmark’s exemption from the EU’s common asylum and refugee scheme remains secured. While this was true, the two issues still got intermingled in an indirect way.
The ‘slippery slope’
The no-parties, for their part, never questioned that continuous membership in Europol was in Denmark’s best interest. Nor did they oppose the factual content of the other 22 proposed directives. They built their campaign on the single issue of democratic legitimation.
Their argumentation revolved around a legally correct but rather malicious assumption: once the opt-in model is adopted, it becomes the parliament’s permanent scope of authority to pick any additional justice and home rules, including EU-level immigration policy. In contrast to what the constitution ordains, surrendering further sovereignty becomes possible by simple parliamentary majority. Popular control must be by all means reserved, in order to contain the Parliament’s alleged appetite for giving up more and to avoid a “slippery slope” towards more EU.
To counter the no-side’s democratic argument, the yes-parties committed themselves to hold new popular votes before any eventual expansion of the opted-in rules but that commitment was largely neglected or outright doubted by the no-campaign. Questioning the credibility of such a commitment is something of a novelty in the traditionally trust- and consensus-based Danish politics, characterized by long-standing cross-party deals. By playing the no trust card, the anti-EU vote successfully tapped into the electorate’s growing mistrust towards the political establishment, but at the same time eroded deep-rooted democratic rules-of-the-game. By playing the no trust card, the anti-EU vote successfully tapped into the electorate’s growing mistrust towards the political establishment, but at the same time eroded deep-rooted democratic rules-of-the-game.
What the no-side positively proposed against the opt-in was simply another special agreement with the EU, similar to those four Denmark already has, this time on Europol. This argument was challenged by legal experts who pointed out that a parallel agreement - if possible at all - would take years to negotiate and wouldn’t even grant equal powers for Denmark. Regardless, the no-side guaranteed continuous membership in Europol, and – as a worst-case scenario – endorsed the option of an eventual later referendum with more limited scope. Ironically, the no-vote rejected the opt-in and proposed to achieve much the same in far more uncertain and complicated ways. Caught in the cross-fire of complicated EU-law arguments, voters remained confused and uninformed.
In conclusion, the no-campaign prevailed because it managed to frame the debate on its own terms. For the yes-vote the referendum was about a simple practical issue that stood in everyone’s interest. It was about a rational decision to utilize Denmark’s special position described in the EU Treaty and thereby ensure access to Europol and other beneficial and easy-to-identify-with legislative acts. But in the no-campaign’s narrative the stake of the vote became the defence of sovereignty and self-determination against a struggling and ever-closing Union. In the end the whole thing boiled down to the Danish People’s Party’s catchy campaign slogan: “More EU? No, thank you!”
As to the future, the referendum, no doubt, has far-reaching impacts. Regarding Europol, the government will now initiate a special agreement with the EU, the prospects of which are impossible to foresee. Denmark’s sustained membership is surely a mutual interest, if for no other reason than Europol’s growing focus on terrorism in the wake of the Paris massacre. On the other hand, a special agreement that involves all member states and has the approval of the EP seems impossible to conclude before Europol becomes a supranational EU agency.
In a wider context, the consequences are even more significant. Not only are the Danish opt-outs cemented again for many years to come but the foundation of Danish EU-policy is also likely to change. Until now, the mainstream pro-EU parties’ broad agreements governed policy towards the Union. The current one adopted last year explicitly states that Denmark’s interests lie with being “as close as possible to the core of the EU”. Boosted by the popular vote, the no-parties can now reasonably claim more influence on policy and their strategic option is quite the contrary to that consensus: a slimmer and less federal EU in full accordance with the UK’s reform demands.
On the other hand pro-EU forces are of course not to be written off. Pro-EU stances continue to dominate in parliamentary politics and interest groups, and do not lag far behind in popular opinion either. But that doesn’t make the challenge of Danish EU politics any easier. What we can expect now is a years’ long process of forging a new EU policy compromise in the midst of a polity fundamentally divided on relations with the EU. Given the considerable distance between the two opposing approaches, that compromise will not be easy to attain.