Denmark:Infringement of the constitution?
01 September 1996
In 1993 eleven Danish citizens took an action against the Danish state claiming that the transfer of sovereignty through the Act of Accession of 28 April 1993 was a violation of Article 20 of the Danish Constitution. The Treaty they said transferred sovereignty in contravention of this law.
The crucial question is whether the Accession implies handing over legal competence only to a "specific extent" and by implication of a limited nature. In the opinion of the eleven the Maastricht Treaty could only have been signed if the amendment procedure in Article 88 had been effected - this requires two positive votes in parliament with an election inbetween plus a referendum. In 1994 the High Court refused to admit the case claiming that none of the eleven citizens could document how they personally had an actual and direct interest which was being violated.
The issue then passed to the Supreme Court which pronounced, unanimously, on 12 August that the High Court had to hear the case. In making this decision the Supreme Court opened the way for any citizen to assert a violation of their rights on behalf of the population as a whole. The Supreme Court in coming to this decision underlined its role in controlling the Constitution. As no specific interests had been violated the court will, for the first time, conduct a judicial review - comparing an act of parliament with the basic law. The case will now go back to the High Court where any decision can be appealed by the eleven or the State to the Supreme Court. The case has also raised the question whether Denmark needs to have a Constitutional Court like those in Germany and France.
At the political level the case may well influence the ability of the Danish government to sign a new Maastricht Treaty which will come out of the current Intergovernmental Conference in 1997. The Justice Minister claims the case can be dealt with in a year to eighteen months but lawyers estimate it could take 4-5 years given the complexity of the case.
Senior Lecturer in Constitutional Law at Copenhagen University, Henning Koch, calls attention to the fact that "a sliding cessation of sovereignty" has taken place since 1973 when Denmark joined the EU. Over this period there were 400 cases where Danish Ministers, after a mandate from the parliament, had taken part in unanimous decisions in the EU Council of Ministers to extend the use of Article 235 in the Treaty of Rome creating new law-making competencies. This is in contradiction to Article 20 of the Danish Constitution.