“To be or not to be” in European Police Cooperation

Watch out for an unpleasant surprise from Denmark

On 3 December, Denmark will hold another referendum on EU matters – the eighth plebiscite on EU matters since Denmark joined the EU in 1973. This time around, it is about Justice and Home affairs (JHA).

What timing! – in the midst of a refugee crisis and when Europe is battling to find common (and the right) answers to how to fight terrorism. However, the date was fixed before the dual explosion detonated.

The background to this popular consultation goes back to the Danish No to the Maastricht treaty in 1991 and the following rescue operation involving four opts-outs for Denmark – on the Euro, European defence policy, the notion of European citizenship and EU cooperation on Justice and Home Affairs (the so-called treaty third pillar).

These opt-outs were laid down in a legally binding text under international law – “the Edinburgh decision” – that today is being dusted off as a possible model for the UK’s renegotiation of membership in the absence of any possible treaty revision. Denmark is the best proof that such a text can offer a solid barrier against “ever closer union”. The opt-outs have now lasted for 23 years and kept Denmark outside the most dynamic parts of European integration.

However, the opt-outs are also creating problems for the Danes as European policies are expanding with great speed in these areas – in particular on Justice and Home Affairs (JHA). The UK (and Ireland) had already – back in 1997 in the Amsterdam treaty – obtained an “opt-in” clause that gives them the freedom to “pick and choose” and select the JHA policies they want to join, an option which the UK activated for about two thirds of EU legislation in this area – Ireland even more so.

Denmark has remained alone with an absolute interdiction against joining EU policies in these areas. As long as EU cooperation was inter-governmental in nature Denmark could participate – once a policy becomes a “Community” policy Denmark has to leave and/or decline to take part. In the Lisbon treaty, Denmark fought hard to obtain an opt-in possibility similar to the UK’s and succeeded. Its entry into force, however, required a separate Danish ratification – that is what is now at stake in the upcoming referendum.

The real trigger for the referendum is the prospect that Europol (the European Law Enforcement Office) soon will become a fully-fledged EU Agency under normal Community law, prompting Denmark to leave Europol if there is no change in its status. The same will happen before long with regard to Eurojust (European Public Prosecutors office). Nor will the Danish police have access to the passenger name record (PNR) of airline passengers, which will soon be put on the statute book. The latest terrorist attack has increased the importance of these instruments and the EU’s justice and interior ministers at their emergency meeting last week called for their adoption before the end of the year.

Outsiders may fail to understand why there can be any doubt on how to vote in the referendum, but nothing is that simple in Danish EU politics. The Government and the main political parties advocate a Yes vote – so do industry, trade unions and all major organisations, including the police. But the No campaign – spearheaded by the eurosceptic Danish Peoples Party, which has been very successful in selling the “slippery slope” argument against any change as in “once you transfer sovereignty to the EU you don’t know where it ends” – is gaining ground. The Noes  also pretend that they have solutions – contested by most experts – for keeping Denmark in Europol  even with a No vote.

For the moment, the two sides are running neck-to-neck with a large proportion of Danes still undecided.

These days the Danish referendum is hardly on the radar screen in Brussels or elsewhere. If the Yes side wins, it might not create headlines in the European Press. But that’s far from the case if  the Danish people rejects the proposition.

A Danish No will not be good news for David Cameron in his efforts to keep the UK in the EU. The Conservative Eurosceptics are likely to portray a Danish rejection as another blow to the EU “from a proud independent people”, as they did after the earlier Danish No to Maastricht back in 1991. Even more so since the UK’s transfer of sovereignty in the JHA field has always been viewed with great scepticism from those quarters.

Neither is it good news for Europe if one Member State is on its way out of police cooperation, precisely at a time when recent events call for reinforcing European Integration, and where the alternative – a closer cooperation between a limited number of member states – is popping up in the debate.

Finally, Danish attempts to keep its place in Europol – even in the event of a No – could derail the process of rapidly concluding current negotiations on beefing up Europol’s status and other key policy initiatives. So beware the Danes on the third of December. You have been warned!

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