Danish ‘Davids’ battle on

Date: 06/03/1997

CASE number B-2131-96, now making its way through the high court for eastern Denmark, is one of those seemingly arcane battles over EU law which leave most ordinary members of the public cold.

But it has captured headlines across the Union, not least because of the images it conjures up of 11 Danish 'Davids' taking on the might of the 'Goliath' state.

The 11 Davids include some unlikely champions of constitutional rights: folk musician Anne Würgler, fisherman's wife Marianne Henriksen and unemployed Yvonne Petersen are among those who have ganged up on no less a figure than the Danish Prime Minister Poul Nyrup Rasmussen, claiming that the country's constitution (grundloven) was breached when it ratified the Maastricht Treaty.

But apart from this imagery, there is little to excite the public's interest in this first ever court case to look into the relationship between the provisions of the Danish constitution and the transfer of national sovereignty to Brussels.

That is part of the reason why media attention has focused not on the complex legal issues involved in the case, but on the key question it raises for the whole of the EU: to put it bluntly, will it delay Danish ratification of the outcome of the present EU treaty negotiations?

Some say yes, others no, and on balance it seems that the most precise answer is that it is hard to say.

What is clear is that the case now going through the high court for eastern Denmark (Østre Landsret) is only the first step in the legal battle. Whatever the verdict of this court, it will be the subject of an appeal to the country's supreme high court (Højesteret).

The reason why it is hard to say exactly how long the case will take is that several minor legal battles between the two sides are still being fought on the sidelines, amid disputes over how many witnesses can be heard, to what extent the complainants can present evidence from the period before the Maastricht Treaty was ratified in Denmark and whether they should be given access to internal government documents.

These procedural issues - which are being discussed in both the high court and the supreme high court - have already caused delays, with the plaintiffs given until today (6 March) to submit their final deposition, raising question marks over whether oral hearings will begin in May as planned.

Experts predict that a final judgement from the supreme high court cannot be expected until the beginning of 1998 at the earliest, and some suggest the case could drag on for years.

Officially, members of the Copenhagen government have so far been unwilling to comment publicly on whether or not it will be possible for Denmark to ratify the new EU treaty which emerges from the current Intergovernmental Conference before the case completes its journey through the courts.

But privately, all believe the government's legal advisers will recommend waiting until it is over.

At the heart of the court case lies Article 20 of the Danish constitution, dating back to 1953, which allows the parliament (Folketing) to hand over sovereignty to international authorities “only to a more specified extent”.

This wording is crucial, but difficult to express clearly in a foreign language. The translation given here is taken from the Common Market Law Review. The French and German versions (dans une mesure définie de manière précise and in näher bestimmtem umfang) express it slightly differently.

It is a cocktail of this key phrase in the Danish constitution, together with the extensive use made by the EU of Article 235 of the Treaty of Rome (which allows for Union action in areas not covered by other treaty provisions) that forms the basis of the plaintiffs' case. They argue that the existence of this catch-all clause means that it can no longer be claimed that the sovereignty transferred from Denmark to the EU is “only to a more specified extent”.

Since Denmark, together with the UK and Ireland, joined the then European Economic Community (EEC) in 1973, Article 235 has been used almost 600 times, according to a study carried out by the Danish anti-Maastricht group JuniBevægelsen. This figure was confirmed in a recent report from the Danish ministry of foreign affairs.

During the Seventies, Article 235 was used to introduce completely new EU policies in, for example, the environmental field, which was then not covered by any specific treaty provisions.

In fact, all Union law relating to the environment was made with the use of Article 235 until the Single European Act entered into force in 1987.

More recently, it has been used as the legal base for the euro and to decide on the EU's response to the American Helms-Burton act targeted at foreign firms with dealings in Cuba.

When Denmark joined the EEC, the outcome of key court cases - such as the 1963 Van Gend & Loos judgement, which declared that EU law was directly applicable, and Costa v Enel in 1964, which stated that EU law was above national law - was already known.

But at the time of Danish accession, there was nevertheless an intense debate about the possible use of Article 235.

The ministry of justice argued it was basically intended to fill the gaps when holes in the treaty were discovered. But from 1973 onwards, it was, in fact, deployed to introduce entirely new policies in the field of culture and research, as well as the environment.

The prime minister's defence lawyers argue that the decision to use Article 235 does not necessarily mean a transfer of sovereignty to Brussels.

They maintain that an EU policy does not have to have its own article to be covered by the treaty, and that introducing programmes in the areas of, for example, culture, does not necessarily mean transferring sovereignty in that area to the EU.

It is not the first time the legality of Denmark's relationship with the Union has been challenged.

When it joined the EEC in 1973, a similar complaint about a breach of Article 20 of the constitution was lodged with the Danish high court. But the case was rejected on the grounds that the person who brought it did not have a legal interest in seeing the matter tested. When the Single European Act came into force in 1987, a second court case was rejected on the same grounds.

It therefore came as something of a surprise when the high court agreed to hear this latest challenge in August last year.

The plaintiffs' case rests on the claim that Denmark was in breach of Article 20 of its own constitution when it ratified the Maastricht Treaty, rather than a challenge to the legal basis of its accession to the Union.

Government lawyers therefore insist that only examples of the use of Article 235 since the treaty entered into force in November 1993 can be cited as evidence in the case.

But the plaintiffs argue that they should be allowed to use evidence dating back to 1973, and are demanding access to relevant internal government documents concerning the article's use.

When all this legal wrangling finally comes to an end, few expect the high court to deem the ratification of the Maastricht Treaty unconstitutional.

But the plaintiffs hope for a ruling from the court which would set limits on future transfers of sovereignty, as happened when the German constitutional court in Karlsruhe delivered its verdict on a challenge to the Maastricht Treaty in October 1993.