Yesterday, the Danes voted no in their latest EU referendum on whether or not to change the current situation, where Denmark is not participating in the Justice and Home Affairs (JHA) cooperation in the EU. It was rejected!
But let’s start with a little bit of background. A referendum on the ‘justice-opt-out’ has been planned for a while now. The opt-out, along with 3 others, was created as a response to the Danes initially rejecting the Maastricht Treaty in 1992. However, the justice opt-out became much more relevant with the Lisbon Treaty, in which the JHA pillar is set to move to the supranational level, a level at which the Danes legally can’t participate while their opt-out is active. So consequentially, six pro-EU parties agreed to take the matter to the ballots and negotiated for an ‘opt-in’ solution, which includes that the Danish Parliament would be able to choose which JHA policies to negotiate about and join on a case-by-case basis. They identified 22 justice policies (including Europol) that Denmark would have joined immediately, and guaranteed they would hold another referendum in case they wanted to join a common asylum framework in the future.
Confused? So were the Danes. The debate leading up to yesterday’s vote was arguably more about explaining the content of the complicated proposal, and the outcome is more a reflection of rising Euroscepticism and dissatisfaction with the established political parties, rather than a response to the actual content of the referendum. Despite the fact that the Danes are one of the most pro-EU countries in Europe, the “Yes” parties failed to make the population understand why an ever closer Union is needed in order to preserve EU benefits Danes are already enjoying. But combined with the EU being perceived – not only by Danes – to be in complete disarray (particularly its justice framework) over the ongoing refugee crisis and its consequences, the referendum was never going to be as safe as the “Yes” campaign had hoped.
Now, why do we care about the Danes voting to continue their status quo? While the referendum has gone more or less unnoticed in Brussels with the Brussels bubble waking up to Copenhagen’s intentions only in the past week, and a lack of comments from any EU official on the referendum, it is rather difficult to predict. Still, we can and should start thinking about what implications it will have for other, more high-profile EU topics.
For one, there is Europol! The parallel-agreement Denmark will likely have to negotiate on Europol will certainly be interesting to follow. No other EU member state has a similar agreement on any policy so essential to the functioning of a borderless Europe, and the result will likely help us understand what a potential two-speed Europe could effectively look like. The model could even set a precedent for how potential future opt-outs by Eurosceptic member states are handled. Most importantly, however, the Danish the vote comes at a time where people are expecting more integration on the justice front, not less, in particular amid talks of a “European FBI” and increased information-sharing is demanded for security reasons. Thus the Danish “No” could arguably not have come at a worse time.
The Danish government needs a solution to being left out of Europol fast in order to show that they haven’t completely lost the ability to act in the European arena. However, their European partners might feel less urgency; on the one hand, no one wants to be seen to be heavy-handed with the Danes or to not be respecting democracy. On the other hand, there is little appetite for rewarding bad behavior, so the other capitalso are likely to “hurry up slowly” during the negotiations. The content and pace of the negotiations will however not be decided by the Danes and their partners’ ability to come to a compromise, but rather will be decided by the impact it may have on much more important issues and debates, such as Brexit. After all, whether the Danes decide to move from a small reluctant player in JHA to not playing at all is unlikely to matter much for the rest of EU, nor indeed for the essential progress on key security challenges.
From a Brussels perspective, there is an important link between yesterday’s referendum and the British referendum, as the Danish “No” is likely to be picked up by the British “out” advocates. Former Labour Europe Minister Denis MacShane predicts that out voices will “praise the freedom loving Danes who dare say no to more European integration”. Furthermore, the “out” side will be very interested in Brussels’ response to the Danish vote. If Brussels gives the Danes a custom solution that is perceived to benefit Denmark, it is very likely that the British “out” campaigns will use it to show to the British public that a national can in fact easily reap the benefits of the EU while opting out in parts of the Union. Hence for those decision-makers who would like to avoid a Brexit, it is essential to convince their electorate of why the European Union has to be ever closer, whilst also making sure the debate doesn’t stray from discussion about the concrete benefits of staying in the EU and into vague and Eurosceptic territory – something that the Danish politicians seemed to have failed to do.
The trouble for Brits, however, is the Danes might just have made it a lot more difficult for them…
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