Danish Constitution and the EU
Denmark can transfer sovereignty to international organisations in two different ways. In accordance with Section 20 of the Constitution, powers vested in the authorities of the Realm may be delegated ‘to such extent as shall be provided by statute’.
This must be done by a five-sixths majority of all members of Parliament, i.e. at least 150 of the 179 members of the Danish Parliament must be present and must vote in favour.
If the delegation of the powers is not provided by statute, or if they are not vested in the authorities of the State in accordance with the Constitution, sovereignty can only be transferred by amending the Constitution itself in accordance with Section 88.
The Constitution also has a Section 19, which allows the Government to sign international treaties that do not transfer sovereignty. This only requires the consent of Parliament by an ordinary majority.
The Treaty on the Single European Act was ratified in 1987 by the Government in accordance with Section 19 without formal transfer of sovereignty. All other referendums were conducted in accordance with Article 20, including membership of the original EEC in 1972.
The Supreme Court, surprisingly, accepted an action against the Government for violation of the Constitution by approving the Maastricht Treaty.
The Supreme Court decided that there were limits to the degree of sovereignty which could be delegated in accordance with Article 20, but it was left substantially to the Danish Parliament to determine what those limits were.
The Supreme Court also concluded that there were limits to what the Supreme Court would accept in the matter of decisions from the European Court of Justice.
The Supreme Court wanted to reserve the right to have the last word in the interpretation of the Constitution’s limits in relation to sovereignty delegated. However, the Supreme Court will only examine the limits once the European Court of Justice has given its ruling. Critics maintained that the degree of sovereignty transferred could not be determined, since it was often changed by new decisions and far-reaching judgments.
The Government, under Prime Minister Poul Nyrup Rasmussen, first rejected the idea that a case could be brought against the Government. When leave was granted for the action, the Government argued that the powers delegated were within the ‘extent provided by statute’ laid down in the Constitution, since there was extensive discretion for Parliament to determine that extent.
The Treaty of Nice and the Lisbon Treaty were both passed by the Danish parliament without referendums.
A Court case accepted the government’s interpretation. More than half of all EU laws have now been decided based on Articles in the treaties where no competence has been transferred from Denmark to the EU.