The Hesitant European? The Constitutional Foundation of Denmark’s EU Membership and Its Material Reality

Abstract

The establishment of a supranational legal order in Europe and powerful European courts like the European Court of Human Rights (ECtHR) in Strasbourg and the Court of Justice of the European Union (CJEU) in Luxembourg, constitutes a rather dramatic challenge to the Danish legal and political tradition. In Denmark, the Parliament has the upper hand compared to other branches of government and is regarded as the ultimate symbol of democracy. Similar to other Nordic countries, Denmark has no tradition of judicial review and few national politicians, judges or civil servants have over the years questioned this state of affairs despite the process of European integration. Denmark has similarly been regarded as a bastion of Scandinavian legal positivism where statutes and political decision-making together with judicial self-restraint on part of the national judiciary are absolutely central. In this light the European constitutional development has been close to a revolution and profoundly challenged the Danish majoritarian tradition. The article digs into the Danish dilemmas, Denmark’s legal and democratic tradition, its EU opt-outs and not least its hesitant acceptance of the supremacy of European law.

Keywords: European law and integration, Danish constitutional law, European Court of Justice, Scandinavian legal positivism, Danish opt-outs of the EU, European constitutionalism, Sovereignty