¹ An unofficial translation of the decision can be found on the Internet <http://www.um.dk/udenrigspolitik/europa/domeng>.

² According to several Danish scholars, the formal decision to allow the case to be adjudicated was also a major constitutional breakthrough because for the first time a group of people without a direct legal interest were accorded locus standi to claim that an act was in contravention of the Danish Constitution. This decision by the Supreme Court of August 12, 1996, is reported in 1996 UfR H 1300. For a comment, see Henning Koch, Dommerret, in Grundloven og Menneskerettigheder 326 (Morten Kjaerum et al. eds., 1997).

³ Act No. 281 of Apr. 28, 1993, 1993 Lovtidende 1157.

⁴ See 1998 UfR H 800, 858, 869.

⁵ Id. at H 869, para. 9.1.

⁶ Our translation. The crucial passage of section 20 reads: “Beføjelser, som efter denne grundlov tilkommer rigets myndigheder, kan ved lov i nærmere bestemt omfang overlades til mellemfolkelige myndigheder ….” There are several different English translations of this section. See Henning Koch, Constitutionalization of the Legal Order 17 (National Report, 15th World Congress of Comparative Law, Bristol 1998). The difficulties relate more precisely to “i nærmere bestemt omfang.” Koch proposes the translation “to a specified extent.” See also Hjalte Rasmussen, Denmark’s Maastricht-ratification case: The constitutional dimension, 33 Irish Jurist 77 (1998). Rasmussen proposes the translation “to a more specified extent,” id. at 88. In the unofficial translation of the decision by the Danish Ministry of Foreign Affairs, supra note 1, the Court quotes section 20 of the Danish Constitution as follows:

(1) Powers vested in the authorities of the Realm under this Constitutional Act may, to such extent as shall be provided by statute, be delegated to international authorities set up by mutual agreement with other states for the promotion of international rules of law and co-operation.

(2) For the enactment of a Bill dealing with the above, a majority of five-sixths of the members of the Folketing (Parliament) shall be required. If this majority is not obtained, whereas the majority required for the passing of ordinary Bills is obtained, and if the Government maintains it, the Bill shall be submitted to the electorate for approval or rejection in accordance with the rules for referenda laid down in sect. 42.

Id., para. 9.2.

⁷ Article 308 according to the new enumeration in the Treaty of Amsterdam, Oct. 2, 1997, reprinted in 37 ILM 56, 140 (1998). For the Maastricht Treaty, Feb. 7, 1992, see Treaty on European Union, 1992 O.J. (L 205) 2, reprinted in 31 ILM 247 (1992).

⁸ The question at issue was whether the adoption of Denmark’s Act of Accession to the EC Treaty, as amended by the Maastricht Treaty, was constitutional. Thus, the constitutionality of the practice in relation to Article 235 prior to the amendment of the EC Treaty in 1992/1993 was not at issue in the case. Furthermore, the specific competences of the Community were expanded by the Maastricht Treaty, so that some matters previously dealt with under Article 235 are now expressly addressed by the Treaty.

⁹ It is difficult to amend the Danish Constitution. Section 88 provides:

When the Parliament passes a Bill for the purposes of a new constitutional provision, and the Government wishes to proceed with the matter, writs shall be issued for the election of Members of a new Parliament. If the Bill passes unamended by the Parliament assembling after the election, the Bill shall within six months after its final passing be submitted to the Electors for approval or rejection by direct voting. Rules for this voting shall be laid down by Statute. If a majority of the persons taking part in the voting, and at least 40 percent of the Electorate, has voted in favor of the Bill as passed by the Parliament, and if the Bill receives Royal Assent, it shall form an integral part of the Constitution Act.

Unofficial translation by the Danish Ministry of Foreign Affairs.

¹⁰ See also Paul P. Craig & Grainne De Búrca, EC Law: Text, Cases, and Materials 113–14 (2d ed. 1998).

¹¹ Plaintiffs referred to documents indicating that the Danish Government on several occasions had doubts about whether Article 235 could be used as the legal basis of EC law, but the Government had never acted on those doubts.

¹² 1998 UfR at H 861–62.

¹³ Id. at H 869, para. 9.2.

¹⁴ Id.

¹⁵ Id.

¹⁶ 1998 UfR at H 869, para. 9.3.

¹⁷ 1998 UfR at H 870, para. 9.4.

¹⁸ According to the Court, this interpretation is in accordance with a note from the Danish Government of January 21, 1997, and Opinion 2/94 of March 28, 1996, of the European Court of Justice regarding the Accession of the Community to the European Human Rights Convention, 1996 ECR 1–1759. See 1998 UfR at H 870, para. 9.4.

¹⁹ 1998 UfR at H 871, para. 9.6. See also the “German Maastricht decision,” Oct. 12, 1993, Entscheidungen des Bundesverfassungsgerichts [BVerfGE] [Federal Constitutional Court] 89, 155, translated in 33 ILM 38 (1994), and the case note on this decision by Georg Ress, 88 AJIL 539, 543 (1994).

²⁰ On the question of sovereignty in relation to the Danish Maastricht case, see Ole Spiermann, Hvad kommer efter tyve? En analyse af Højesteretsdommen i “Grundlovssagen,” 1998 UfR B 325.

²¹ On the EC Treaty and democracy in member states, see German Maastricht decision, note 19 supra.

²² 1998 UfR at H 871, para. 9.9.

²³ See Maastricht Treaty, supra note 7, Art. 189 (249 according to new enumeration in the Treaty of Amsterdam, supra note 7, 37 ILM at 128).

²⁴ Case 6/64, Costa v. ENEL, 1963 ECR 1.

²⁵ Case 106/77, Simmenthal, 1978 ECR 629.

²⁶ Both Simmenthal and Costa v. ENEL of course presuppose the principle of direct effect, which was established by the ECJ in Case 26/62, Van Gend en Loos, 1963 ECR 1.

²⁷ See Articles 164 (now 220), 173 (now 230), and 177 (now 234) of the two versions, supra note 7.

²⁸ As the Court stated:

The appellants have pleaded that the jurisdiction of the EC Court of Justice under the Treaty, held against [i.e., together with] the principle of precedence for EC law, implies that Danish courts of law are prevented from enforcing the limits for the transfer of sovereignty which has taken place by the Act of Accession and that this must be taken into consideration when assessing if the demand for specification in sect. 20(1) of the Constitution has been observed.

See 1998 UfR at H 871, para. 9.6.

²⁹ See id. at H 869, para. 9.2.

³⁰ See Georg Ress’s report on the German Maastricht decision, note 19 supra.

³¹ Professor Frowein predicted diis development. See Jochen Abr. Frowein, Das Maastricht-Urteil und die Grenzen der Vetfassungsgerichtsbarkeit, 54 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1, 15 (1994).

³² The two scenarios we depict are not the extreme ones depicted by Phelan as revolt or revolution. See Diarmuid Rossa Phelan, Revolt or Revolution: The Constitutional Boundaries of the European Community (1997). Rather, our account was inspired by Mattias Kumm’s paper Who Is the Final Arbiter of Constitutionality in Europe? (1998), available at <http://www.law.harvard.edu/Programs/JeanMonnet/papers/98/98-10-.html>. In this paper, Kumm describes what he calls the Cassandra scenario and the Pangloss scenario, see id. at 4–5.

³³ See BVerfGE 89, at 175, 88 AJIL at 544.