Can any referendum on the EU today be won in the current political climate? The results of Denmark’s vote on December 3 rd suggest that the task facing the organisers of Britain’s ‘stay-in’ campaign is enormous. The Danes said no to changing their blanket opt-out on all justice and home affairs (JHA) cooperation in the EU to the more nuanced opt-in model adopted by the UK and Ireland. The upshot of the result is that Denmark will be legally prohibited from taking part in any existing or future law within this rapidly growing area of EU cooperation. The alternative position, rejected by the voters, would have allowed the Danish parliament to decide on a case-bycase basis which JHA laws to opt into.
The first casualty of this referendum will be Denmark’s ability to participate in the activities of the EU police cooperation agency Europol, which, perversely, most Danes have in fact expressed approval of.
The ‘no’ faction won because the Danes believe that national sovereignty and European cooperation is a zero-sum game. The idea behind the vote was to empower the parliament, but the formal handing over of sovereignty was deemed to be unacceptable. A powerful ambition behind the novote was to close the country’s borders and shield itself from any negative spillover from the multiple crises afflicting the EU. Some two-thirds of the Danish people believe that border control is efficient in combating cross-border crime.
The Danish vote offers three lessons for other EU member states holding referenda in times of crisis:
Demystify national sovereignty. The aspiration to reconsider the balance of competencies between the EU and its member states is a valid political stance. But what use, exactly, can Denmark make of the sovereignty that it preserves within the field of justice and home affairs when in practice it means that the country cannot participate in any part of the cooperation, even when it is in its national interest? A Danish law-expert compared it to a footballer who declines to play on a team because he may lose his prerogative to play exactly as he wants. In the public’s mind, safeguarding sovereignty has, quite wrongly, become synonymous with maintaining things as they were in a pre-globalised world.
Keep it simple. The yes campaigners should have emphasised trust in the parliament’s administration of the opt-in model and not speculated about the nature of cooperation anno 2025 or individual regulations. Tweets on the regulation establishing a procedure for European orders for payment (in Danish: Betalingspåkravsprocedureforordningen) never trended in Denmark, despite being part of the referendum package.
Know the consequences of a no-vote. While it was clear to most Danes that a yes implied a hand-over of sovereignty to the EU, the consequences of a no-vote were not so clear. This left ample space for the no-side’s ‘guarantees’ that Denmark could obtain more favourable arrangements with the EU than under the opt-in arrangement. Such speculation did not serve to advance an informed debate.
If a referendum campaign leaves voters more confused than they were initially, one can hardly say that it has served as a valuable instrument of democracy. At the same time, once the instrument is used, the voice of the public can and should be heard. In the case of Denmark’s referendum, the outcome should now result in the gradual exclusion of the country from all justice and home affairs cooperation in the EU. The future will not be so black and white, however. Denmark may be able to participate as a third-country signatory to certain specific laws or it may even try to vote again (and would not be the first time). To be in, or to be out, that is still the question in Denmark – and one that even the referendum failed to fully answer.