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6 - Constitutional Identity in Denmark

Extracting Constitutional Identity in the Context of a Restrained Supreme Court and a Strong Legislature

from Part II - Constitutional Identity and Its Member State Law Dimension

Published online by Cambridge University Press:  03 October 2019

Christian Calliess
Affiliation:
Freie Universität Berlin
Gerhard van der Schyff
Affiliation:
Universiteit van Tilburg, The Netherlands
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Summary

Traditionally, Danish case law, academic literature, and other sources do not refer directly to ‘constitutional identity’. However, this absence of the term constitutional identity does not mean that Denmark has none. What it does mean is that it must be extracted from an interpretation of the Constitution, case law, and other sources. Seen in light of the different models of national separation of power in the EU Member States, this chapter challenges the common assumption that constitutional courts and supreme courts are the definers of national constitutional identity in relation to Article 4(2) TEU. In some Member States, the courts are very active in defining constitutional identity, but in others with strong parliaments and more reluctant courts, this is not the case. In order to secure equality between the Member States, we will have to accept that institutions other than courts can be the definers of constitutional identity, depending on the national model for separation of powers.

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Publisher: Cambridge University Press
Print publication year: 2019

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