When Danish citizens vote “yes” or “no” in replacing their country's opt-out on EU Justice and Home Affairs with an 'opt-in' model next week, they will have at least two key factors to bear in mind: the importance of domestic sovereignty over legal and security legislation; and the risk of not being formally including in Europol, the EU's international policing and data resource-sharing organization.
Currently, Denmark's membership in the EU is subject to four legal exemptions. One of these, an exemption from participation in legal cooperation at supranational level, is the subject of the December 3rd vote. Put simply, Danes will be deciding whether or not their country will continue to be exempt from legal co-operation, or if it will adopt 22 specific EU legislative acts that will put Denmark more in line with the majority of the other EU states.
In concrete terms, the main consequence for the vote will be Denmark's continued participation in Europol. The intergovernmental nature of EU legislation regarding Europol has, until now, enabled Denmark to participate despite its legal exemption. With EU legislation now becoming supranational, however, Denmark has a decision to make.
A Danish “no” vote would mean that Denmark would not be able to influence policing and sentencing laws passed by the EU. Such laws would, in this instance, not necessarily apply in Denmark, which would not be encompassed by EU law in this area. This would mean that Denmark would, initially at least, be unable to participate in Europol.
If the outcome of the vote is a “yes”, Denmark would remain in Europol and its current policing arrangements would remain unchanged. They would, however, be subject to any future adjustments agreed upon by the EU.
Parties advocating a “no” vote, and thereby less EU influence on Danish legislation, include the left-wing Red-Green Alliance (Enhedslisten) as well as the Eurosceptic Danish People's Party (DF), which, despite its support for Danish participation in Europol, wants Denmark to retain its legal exemption. These parties argue that a “no” vote does not necessarily exclude Denmark from Europol, as the country would then be able to apply for some form of “parallel agreement”, which would allow participation outside of the other legal acts which must be adhered to should the current exemption be dropped.
However, with no precedent existing for such a legislative parallel agreement, and its adoption subject to the agreement of all of the other 27 EU member states, such a solution is far from a reliable one. The risk of Denmark being left entirely out of Europol is therefore a relevant consideration and a core argument of the parties that favour the “yes” vote, which count both the governing Venstre and main opposition party Social Democrats amongst their number.
By voting yes, Denmark will also adopt a number of legal acts relating to, for example, human trafficking, cyber crime and the Schengen agreement. DF's opposition to the latter relates to a previously expressed position advocating the tightening of Danish borders, which Denmark would lose control over.
For the “yes” parties, including those in the conservative bloc in which DF is an influential player, European cooperation on the former two areas is only likely to become more vital in times of increased refugee flow and threats from terrorism.
All of the “yes” parties, meanwhile, with the exception of the environmentally-focused Alternative Party, would prefer Denmark to remain excluded from any legislation on asylum and immigration.
Denmark has previously used its EU opt-out to justify its refusal to participate in the EU's plan to redistribute refugees and Prime Minister Lars Løkke Rasmussen has promised a further referendum should Denmark vote “yes” on December 3rd and then be required at a later time to fall in line with new EU asylum laws.
With just one week to go until the referendum, nearly all opinion polls have shown that Danes are evenly split on the issue.