Memo

Denmark’s opt-out within the EU is obsolete

Dansk politi og retsforbehold. Billede fra www.politi.dk

Summary The Danish government should hold a referendum on the Danish opt-out within the EU as early as autumn 2014. It is likely that those in favour of abolishing the opt-out or replacing it with a customised opt-in agreement would win the referendum under the right conditions, despite a current opinion poll showing that the naysayers are in the strongest position to win.

The prospect of Denmark being forced to leave the European police cooperation in early 2015 puts politicians under pressure to resolve the matter. This cannot wait until the next parliamentary election. A so-called parallel agreement is not a realistic alternative because it could end up excluding the Danish police from Europol for several years.

If the referendum were to focus on combating crime, those in favour will be the frontrunners. But the referendum risks being dominated by the immigration policy instead. If the government enters into a broad European political agreement before the referendum that ensures Denmark a limited opt-out of the immigration policy, it will increase the likelihood of a yes-vote, Think Tank EUROPA estimates in this report.

Main conclusion
  • The Danish opt-out within the EU will force Denmark out of Europol in early 2015. This will diminish the Danish police force’s opportunities to combat organised crime and will relegate it to the European second division.
  • It is doubtful that Denmark will be able to secure a parallel agreement that allows it to stay in Europol. Even if it can, it would put the Danish police in jeopardy of waiting outside for several years until the agreement is processed and approved. This is therefore a very uncertain model.
  • Today, the opt-out covers a long range of other areas that are important to Denmark. One example is the area of civil law, in which Denmark was able to reach a parallel agreement on the bankruptcy regulation which strengthens businesses’ legal rights in the case of bankruptcy. Another example is the parallel agreement on the so-called Brussels II Regulation, which helps with the settlement of family disputes in which more than one country is involved. It is critical to abolish the opt-out.
  • It is urgent to find a solution, as, in addition to Europol, a number of intergovernmental elements of the judicial cooperation Denmark has participated in have now been made national as a result of the Lisbon Treaty. Therefore, the government should hold a referendum on the opt-out as early as autumn 2014.
  • Denmark would have a better political reputation and be in a better position in the other EU countries if it abolished its opt-out entirely through a referendum. The next best solution is for the government to hold a referendum and establish a clearly defined opt-in in the EU, which would mean that Denmark could opt-out of selected areas of the legislative cooperation.
  • In principle, it is important to have a referendum because the Edinburgh referendum in 1993 was largely based on guesswork about what Europol and the legislative cooperation would become in reality. Europol never became a European FBI under German rule, as its opponents at the time feared. Denmark also risks losing the benefits it gained in many other aspects of the judicial field through the cooperation.
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