March 16th, 2013

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I was part of a group of citizens who brought a lawsuit against the former prime minister, Anders Fogh Rasmussen, and the former foreign minister Per Stig Møller. The question we brought before the court was whether the most recent EU treaty (the Treaty of Lisbon) amounted to a loss of sovereignty to the EU. Had that been the case, Article 20 of the constitution, requiring a referendum if such a measure does not pass parliament with a five sixths supermajority, would have applied. Instead, parliament ratified the treaty by simple majority. This is something that should concern all of us.

The Supreme Court handed down its decision on February 20, nearly five years after it began. We lost.

Superficial lawmakers and the media have since used the court’s decision to support their argument that we did not surrender sovereignty. Without saying it directly, they paint us as a group of incompetent grumps. For the majority in parliament who voted for the treaty, the decision provides them with the fig leaf they need to be able to claim that the process was legitimate – even though nothing could be further from the truth.

The Treaty of Lisbon changes the voting procedure in the Council of Ministers, and in the case of about 60 policy areas it requires that decisions need only a qualified majority to pass, not unanimity, as was previously the case. These areas include energy, services, employment, environment, climate, social affairs, healthcare policy and transport. Since the change from unanimity to qualified majority means countries lose their de facto veto right, and Denmark could find itself being forced to accept policies it didn’t vote for, it goes without saying that we, in practice, have handed over our independence in a number of areas.

In its decision, the Supreme Court chose, in classic fashion, to adopt a formal interpretation of Article 20, concluding that the policy areas in question had   been handed over to the EU. (Which is true, but only in treaties that give countries the right to veto proposals.)

Continuing, the Supreme Court found that sovereignty has not been transferred to the EU in any new policy areas. The only change was in voting procedure. While that may not violate the letter of Article 20, the court could have found that it violated it in spirit.

I won’t criticise the court for its ruling. The consequences of finding in our favour would have been immense. The same thought must have run through the minds of the judges in the Supreme Court since in their decision they took the unusual step of issuing a warning that a government has the obligation to prevent further losses of sovereignty as a result of the Lisbon Treaty, unless the conditions of Article 20 are fulfilled. Such a statement hardly instils a sense of confidence in the government’s ability to work within the bounds of the constitution.

Finally, in its conclusion the Supreme Court underscored that it is still a matter for Danish courts to decide whether the Lisbon Treaty’s decree that EU regulations take precedence over national law amounts to a transfer of sovereignty.

Okay then, Supreme Court, we accept your decision, even if we don’t like it, but we say thanks for drawing a line in the sand when it comes to sovereignty.

During previous EU referendums, pro-EU groups argued that we could vote for approval in good conscience, since we retained our veto right in key areas. Our right was untouchable. Now, though, our veto is gone, taken away by a simple majority of parliament and a court ruling that Article 20 did not apply. If people voting in previous EU referendums had known their veto right wasn’t so untouchable after all, they might have voted differently.

It only adds insult to injury if you consider that Rasmussen promised to hold a referendum on the EU constitution. Such a vote never materialised, his argument being that the EU constitution had been replaced by the Lisbon Treaty, even though, despite a few cosmetic changes, the two were the same.

My personal opinion, when it comes right down to it, is that lawmakers who support giving more power to the EU should be more honest about the extent of their proposals. The best way to show respect for Danish sovereignty and our democratic system is to govern by the motto “rather one referendum too many than one too few”.

The author is a member of the People’s Movement Against the EU.