Comment: An EU referendum without EU citizens?

Almost unnoticeable for every non-Danish speaker, Denmark is going to have a referendum about the transformation of their opt-outs into a ’tilvalgsordning’ (opt-in) regarding its EU membership on Thursday 3 December.

The campaign moves slowly and is accessible for Danish-speakers only. Obviously only Danish citizens will be allowed to vote, so why bother even talking about it?

In fact, the legal security of international, EU and non-EU, citizens, is at play. There is a need for non-Danes to know what the referendum is about and to start a discussion about the impact of the referendum on every citizen, regardless of nationality.

Why is this important?

As a matter of fact, a referendum about an EU matter can’t be an exclusively national concern. The Danish referendum matters for all Danes, all EU citizens, and for international citizens in Denmark, even though it gets very little attention in the European press.

A short glimpse back to the very beginning of the EU shows that the very foundation of it was to prevent war and generate trust through trade. Today, the EU’s internal market is a gain for all of us, making the step to move to another country easier through a single market. Over one million bi-national children have been born by participants in the ERASMUS programme since its beginning, and 16 million people in the EU are living in a bi-national marriage as a result of the free movement.

Around 140,000 of these couples divorce every year. Denmark is the only country in the EU that is not a part of the European civil law agreement (Brussels IIA).

This tendency to multinational family constellations challenges the different national backgrounds and specifically the jurisdictional security of citizens since not every member state is part of the common civil law agreement, and national law can differ remarkably within the EU.

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Around 140,000 of these couples divorce every year. Denmark is the only country in the EU that is not a part of the European civil law agreement (Brussels IIA). This is the cause of critical situations when it comes to separation, children’s rights, and support but also kidnapping. It applies to both families with at least one Danish member and foreigners who having established permanent or habitual residence in Denmark. There is an instant need for a more secure law frame, especially regarding the many children involved.

Why the referendum and why the opt-out?

Denmark is an example of an à la carte member of the EU, meaning that it still has four opt-outs regarding European cooperation. The main incentive for Denmark to become a member state is strongly connected to interests in trade with Britain.

After 12 years of difficult bargains Denmark eventually achieved membership in 1973. Reforms of the European treaties in 2009 changed the forms of possible co-operations and agreements within the EU. This minimizes the options for opt-out members to fully access and participate in EU institutions.

By voting ‘no’ Danes will have to immediately leave the cooperation project Europol. This complicates fighting international crime.

The upcoming Danish referendum covers 22 legal acts in of the ‘area of freedom, security and justice’ and addresses police cooperation (Europol), criminal and civil law as well as cross-border trade. Furthermore, Denmark’s membership will change from an opt-out to an opt-in, meaning that Denmark’s government can decide from case to case if it wants to join the single agreements.

What are the Danish concerns?

A significant part of Danish society is afraid that this referendum will be the last time they will be asked to vote regarding EU matters, if it ends with a majority for a ‘yes’. Prime Minister Lars Løkke Rasmussen, who is pro-yes, sees this argument as a no confidence vote to the democratically elected Danish parliament which will be making those decisions from a ‘yes’ on.

Additionally, the referendum’s content and impact is difficult to understand. Besides, Euroscepticism is a wider phenomenon in Denmark. Danish lack of trust regarding institutions and the deeply anchored aim of consensus is reflected in flat hierarchies and a fear to delegate power – especially outside the country’s borders.

There is a fear of losing sovereignty and impact, but I believe Denmark will gain influence by voting ‘yes’. Fears can be met. This requires a debate. A debate in a language that enables every EU-citizen to be involved so we can mitigate concerns. This referendum is about every single person being related to Denmark, that is, obviously not only Danes.

What does voting ‘no’ mean?

Opponents of voting ‘yes’ are afraid that Denmark will lose sovereignty by transferring power from the Danish national level to the EU. Their solution, mostly regarding Europol, is parallel agreements with other EU countries. It is questionable though, if this will be possible and what the political trade-offs will be. Most importantly, a parallel agreement will never offer the same protection to citizens and companies as a full implementation will. Additionally, it sends a problematic signal to other EU-countries – why does Denmark get special conditions?

Norway is an often-used example as an alternative concept of participating in both Europol and the European Economic Area (EEA). But it is often overlooked, that this also demands the implementation of corresponding law packages – and EEA is nearly as comprehensive as EU rights. This would technically very often lead to copy-paste-solutions implementing EU law into national law – without a referendum.

By voting ‘no’ Danes will have to immediately leave the cooperation project Europol. This complicates fighting international crime. Danes, as acknowledged experts in, say, methods to track and prevent child pornography, will lose the possibility to contribute at the EU level. Like for Norway and Switzerland, the access to the system will be extremely limited.

Achieving a parallel agreement will, if possible, take five years. Most importantly, Denmark will not be a member of Europol in the meantime. In this long period, the level of safety for citizens and the quota of solved cases by the national police will probably shrink noticeably since it will take the Danish police way longer to get the information they applied for. This issue is of big importance in times where crime is happening mostly online and does not know borders.

Despite the technocratic language and system of the referendum and the EU as a whole, this can influence every citizen immediately and can be of great importance to major life decisions like marriage, divorce, children, and custody.

In civil rights cases like custody and kidnapping, they will take way longer to be investigated, since vague international rules (Hague Convention) will apply. Denmark is aware of this problem and therefore tried to reach a parallel agreement in this area, but did not succeed. Therefore it is even more important that Denmark votes ‘yes’!

What does voting ‘yes’ mean?

By voting ‘yes’, Denmark will enter the European arena through the front door and will send a clear signal to the other member states: the times of á la carte membership for Denmark will pass. A ‘yes’ at the referendum would not only make the life of every single Dane more ‘secure and safe’. In fact, it would make the life of every citizen living in or being related to Denmark more secure.

Despite the technocratic language and system of the referendum and the EU as a whole, this can influence every citizen immediately and can be of great importance to major life decisions like marriage, divorce, children, and custody. In a day-to-day context purchasing goods from other EU countries will become more secure regarding goods ordered outside of Denmark. For companies, cross-border activities will become more secure and easy, and a ‘yes’ can therefore be understood as another measure to secure a functioning single market without barriers.

Last but not least, the Danish police can remain a part of Europol, and make Danish and European society secure. The EU is a global actor. Today, EU is answering many of the challenges arising within the area of globalization. Not being a part of acts ensuring security for citizens and business will weaken Denmark in the long run. With a young and engaged discussion, we can make the project EU what it should have been for a long time: generating a more personal relationship with the European community.

universitypost@adm.ku.dk

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