Denmark: Constitution case lost - PM acquitted"
01 March 1998
In 1993 eleven Danish citizens took legal action against the Danish state personified by the Prime Minister, Mr Poul Nyrup Rasmussen. They claimed that the government, by signing the Maastricht Treaty on 28 April 1993, had violated article 20 of the Danish Constitution which restricts the transfer of national sovereignty.
The central question was whether the signing of the Maastricht Treaty implied handing over legal competence to the European Union and thereby "hollowing out" the Danish Constitution. In 1994 the High Court rejected the case claiming that none of the eleven citizens could document how they personally had an interest that would be violated be joining the Maastricht Treaty.
The case the went to the Supreme Court which stated, unanimously, on 12 August 1996 that the High Court had to hear the case. This ruling opened the way for any citizen to assert a violation of their rights on behalf of the population as a whole (see Statewatch, vol 6 no 5).
The issue of whether the Constitution has been violated goes back a long way. Opponents of Denmark joining the Rome Treaty - which a majority supported in a 1972 referendum - held the position that it also violated the Constitution. Shortly before the 1992 referendum on the Maastricht Treaty 41 prominent jurists (lawyers) expressed their worries in a letter to the parliament saying that the Treaty could lead to a violation of the Constitution.
The eleven citizens and their lawyers met enormous barriers in their challenge. The government refused to hand over the necessary documents concerning the EEC-administration covering a period of about 20 years. It claimed that the papers were secret and the High Court refused to order the government to hand them over. A case within the case was taken against the High Court to challenge this decision but with no success. The eleven lost that case in March 1997. However the Supreme Court overruled the decision of the High Court and ordered the Prime Minister to hand over a huge number of "secret" documents.
Over the last five years the Constitution Case, as it was popularly named, has raised a lot of questions. If the eleven won what would it mean for Danish membership on the European Union? And what would become of the referendum on the Amsterdam Treaty due to take place on 28 May 1998?
The final proceedings in the Supreme Court took place at the beginning of March and lasted 11 days. The Court ruled and published their decision on 6 April. Not surprisingly a unanimous Supreme Court backed the PM. The ruling stated that the question of the legal borders in the Constitution rely to a large degree on considerations of a political character.
However the full judgement also contained important "victories" for the eleven. Firstly, the eleven citizens had the right to take out a constitutional case. Secondly, the Supreme Court states that parliament has to take a view on whether the government decision to participate further in the development of the European Union requires additional democratic controls. Several politicians and legal experts believe that the case will probably lead to more openness by government towards parliament committees and to more control of the activities of government representatives in the EU and to a higher degree of scrutiny in the future when the limits of national sovereignty are approached.