Focus moves to Schengen as Danes go back to court again

Date: 09/10/1997

By Ole Ryborg

AS THE legal battle over Denmark's ratification of the Maastricht Treaty approaches its climax, the Copenhagen government could be about to become embroiled in a second constitutional court case over Europe.

This latest case centres on whether Denmark's decision to sign up to the Schengen accord on free movement was lawful.

The challenge is being mounted by a group describing itself as the guardians of the Danish constitution, 'Grundlovsv¾rn 1997', which announced late last month that it had moved to take the Danish Prime Minister Poul Nyrup Rasmussen to court for an alleged breach of the Danish constitution.

The accord, which aims to abolish checks on the frontiers between members of the Schengen zone, was ratified by the Danish parliament (Folketinget) just before its summer break.

The test of its legality has some similarities to the case already making its way through the Danish courts challenging the Copenhagen government's decision to ratify Maastricht after a second referendum produced a vote in favour of the treaty.

The government won the first round of that legal battle, which has now moved to the supreme high court for a hearing later this month.

As in the Maastricht case, the challenge to the Schengen accord is being brought not by an individual, but by a group of plaintiffs. They have even chosen the same Danish law firm - Harlang, Koch & Christensen - to deal with the matter.

But otherwise the two cases are completely separate.

In theory, both concern the same paragraph in the country's constitution which allows Denmark to transfer sovereignty 'only to a limited extent' to international organisations.

But while the plaintiffs in the Maastricht case argue that the transfer of sovereignty sanctioned by ratification of the treaty was not within a well- defined limit, the Schengen case centres on the relationship between Denmark and one other member state.

The plaintiffs in this instance claim that Denmark did not transfer sovereignty to an international organisation when it ratified the Schengen Convention but to a single country - Germany - by agreeing to allow German police to carry out 'hot pursuits' of suspects on Danish soil.

Under the Schengen agreement, the Danish government has given German police permission to follow suspects into Denmark, although they cannot go more than 25 kilometres into the country's territory. But the plaintiffs claim that the accord has given German police a right to keep suspects under observation throughout Denmark.

“The Schengen case is less complicated than the Maastricht case. It concerns the question of whether you can transfer sovereignty to another state,” said Henrik Karl Nielsen, lawyer for the nine plaintiffs in the Schengen hearing.

It is not yet clear whether the high court for West Denmark, Vestre Landsret, will accept the case. Government lawyers will have a chance to present their arguments before the court makes a decision on whether to proceed.