Kara Sears
Denmark is a constitutional monarchy with a democratic government. Its legal system has several common denominators with continental European legal systems, and its membership of the EU means that a large proportion of Danish statutes and regulations are the result of obligations to the European Union. However, despite these ties to continental legal systems, Denmark and its fellow Nordic countries are considered to make up a legal family of their own. Danish law has many common law traits, but it is not considered a Common Law country.
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What You'll Learn
Denmark's legal system has distinctiveness from other countries
The Kingdom of Denmark comprises the territories of Denmark, the Faroe Islands, and Greenland. Denmark has been a member of the European Community (now the EU) since 1973 and its legal system has been significantly influenced by European Community law. A large proportion of Danish statutes and regulations are the result of obligations to the European Union, and many legal matters are regulated directly by EU law.
Denmark's legal system is characterised by extensive bodies of systematic and written law. Private law is dominated by a range of individual statutory acts and, in some areas, by unwritten law guided mainly by precedent and custom. The major sources of law in Denmark include the Constitutional Act, statutory legislation, regulatory statutes, precedent, and customary law. The Danish court system is based on the two-tier principle, which means that the parties to a case generally have the option of appealing the ruling.
The Danish judiciary does not have special courts for administrative, criminal, civil, or constitutional matters. The Supreme Court hears appeals on all matters. Laymen participate in the handling of criminal cases and vote together with the judge in county and high court cases.
The law of Denmark was originally based on regional laws, of which the most important was the Jyske Lov, or the Law of Jutland of 1241. The Danske Lov, or the Danish Code of 1683, promoted unity and was issued by King Christian V. Absolutist governmentality was introduced in 1660, and a lex regia was issued in 1665, constituting the monarchical powers of the King, including his authority to legislate. The Danish Code professionalised the law in the 18th century, with the introduction of a legal university degree at the University of Copenhagen in 1736 and the founding of the Royal and City Court in 1771.
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Danish law and the EU law relationship
Denmark has been a member of the European Community (now the EU) since 1973. Since joining, Denmark's legal system has been significantly influenced by European Community law. A large proportion of Danish statutes and regulations are the result of obligations to the European Union.
Each Member State of the European Union has its own law and legal system. Member State law can comprise both law at the national level (or national law, which is valid anywhere in a certain Member State) and laws that are only applicable in a certain area, region, or city. Member States publish their laws in their official language(s), and it is only legally binding in these languages. Most Member States have a national database of their laws.
From the EU perspective, many laws of the Member States implement EU law. This is particularly the case for national law implementing EU directives. Member States' laws derive from various sources, including the constitution, statutes or legislation (which can be adopted at the national, regional, or local level), and/or regulations by government agencies. Judicial decisions by Member State courts can develop into case law. Traditionally, the law of the Member States is divided into private and public law. Private law or civil law is the area of law in a society that affects the relationships between individuals or groups without the intervention of the state or government. Public law governs the relationship between individuals and the state, its entities and authorities, the powers of the latter, and the relevant procedures. Generally speaking, public law comprises constitutional law, administrative law, and criminal law. Because of the particular nature of criminal law, it can also be regarded as a category in its own right.
In Denmark, major sources of law include the Constitutional Act, statutory legislation, regulatory statutes, precedent, and customary law. Outside the ordinary courts, arbitration is common, especially within construction law. The Danish court system is based on the two-tier principle, which means that the parties to a case generally have the option of appealing the ruling. There are 24 district courts in Denmark, and most cases begin at this level. In special cases, the district court can refer a civil case to the high court if the case has to do with principles of general interest. The high courts are the instances of appeal for the district courts. In most cases, a district court ruling can be appealed to one of the two high courts of Denmark: the Western High Court in Viborg, which handles cases from Jutland, or the Eastern High Court in Copenhagen, which takes on cases from the rest of the country. Though considerable legal power is vested with the judiciary, court practice does not have the same authoritative role as in Common Law countries. This does not prevent the courts from taking an active role in shaping the content of law in many areas, e.g. torts. As sources of law, precedents are used to test the legality of statutes and regulations, to interpret statutes, to provide guidance to discretionary statutory rules, and to develop law in areas not regulated by written law. There are no official reports of courts' decisions in Denmark. Though a database does exist for court decisions, legal, economic, and political obstacles prevent it from being practically usable. Instead, selected cases, primarily from the higher courts, have been published since the early nineteenth century.
Denmark has four opt-outs to the Maastricht Treaty. Firstly, Denmark does not participate in European Union citizenship (this provision has been incorporated into the Amsterdam Treaty). Secondly, Denmark does not participate in the European economic and monetary union. Thirdly, Denmark does not take part in supranational decisions and actions in the area of common defense. Fourthly, Denmark does not take part in supranational cooperation in the area of justice and home affairs.
In one case concerning a salaried employee, the relationship between EU law and Danish law was examined. The issue before the Supreme Court concerned whether Ajos, according to the then-applicable provision in section 2a(3) of the Salaried Employees Act, was not required to pay the severance allowance which A, and now his estate, was in principle entitled to according to section 2a(1) of the Act. The decision in this case firstly depended on whether it was possible to interpret the then-applicable rules in the Salaried Employees Act in a way that was consistent with the Employment Directive as interpreted by the EU Court of Justice in the Ole Andersen case, perhaps by applying the rules in the Danish Anti-Discrimination Act (forskelsbehandlingsloven) implementing the Employment Directive. According to the case law of the EU Court of Justice, if this was not possible, the Supreme Court was to consider whether a principle of EU law prohibiting discrimination on the grounds of age may preclude Ajos from relying on the then-applicable provision in section 2a(3) of the Salaried Employees Act. On the issue of whether an interpretation in conformity with EU law was possible, the Supreme Court found that the legal position was clear, and that it would not be possible based on the methods of interpretation recognized in Danish law to arrive at an interpretation of the then-applicable section 2a(3) of the Salaried Employees Act that was consistent with the Employment Directive as interpreted by the judgment of the EU Court of Justice in the Ole Andersen case. The Supreme Court noted in this regard that there was no basis for applying section 1 of the Anti-Discrimination Act over section 2a(3) of the Salaried Employees Act to arrive at an interpretation that was in conformity with the directive. This was thus a 'contra legem' situation, where it was not possible to interpret the then-applicable section 2a(3) of the Salaried Employees Act in conformity with the Employment Directive. On the issue of whether a principle of EU law prohibiting discrimination on the grounds of age may preclude Ajos from relying on the then-applicable section 2a(3), a majority of the Supreme Court stated, among other things, that the implementing act did not provide for letting the unwritten principle prohibiting discrimination on the grounds of age take precedence over the then-applicable section 2a(3) of the Salaried Employees Act in a dispute between private parties. Application of the then-applicable section 2a(3) could not be precluded by Danish courts, and Ajos could thus rely on this provision. Accordingly, the Supreme Court found in favor of the employer. The Danish Maritime and Commercial Court had come to the opposite conclusion.
In terms of asylum, Denmark's legislation on extraterritorial asylum has also been influenced by EU law. In June 2021, Denmark's parliament passed Bill L 226, a legislative amendment allowing for the transfer of asylum seekers to a third country outside the EU for the purposes of both asylum processing and refugee protection in the third country. The amendment provides that transfers must take place under an international agreement between Denmark and the third country and that asylum seekers are to be transferred unless it would be in breach of Denmark's international obligations. Despite the absence of support from traditional partners among EU Member States, the Danish government pursued its vision of extraterritorial processing and initiated a ministerial study of its legal elements under national, EU, and international law. In You may want to see also Denmark's legal system has been significantly influenced by European Community law since it joined the European Community (now the EU) in 1973. Danish law has many common law traits, but it is commonly held that Denmark and its fellow Nordic countries make up a legal family of their own, distinct from Common Law countries. The Danish court system is based on the two-tier principle, which generally allows parties to a case to appeal the ruling. The courts of Denmark are composed of ordinary courts, which include the Supreme Court (Højesteret), three high courts, 24 district courts, and several other divisions and boards. The general structure of the Danish judicial system is inspired by the traditions of continental Europe. The Supreme Court is the highest court in Denmark, and its proceedings are always oral and open to the public. The Supreme Court also handles judicial action against ministers and/or former ministers regarding their dealings as ministers, through a Court of Impeachment of the Realm (Rigsretten). The three high courts are the Western High Court (Vestre Landsret), the Eastern High Court (Østre Landsret), and the High Court of Greenland. The Western and Eastern High Courts are the primary instances of appeal for the district courts, with the Western High Court handling cases from Jutland and the Eastern High Court taking on cases from the rest of the country. The 24 district courts generally serve as the court of first instance for both civil and criminal cases, with the option to appeal to one of the high courts. In special cases, a district court can refer a civil case to a high court if it concerns principles of general interest. Outside the ordinary courts, arbitration is common, especially in construction law. The Danish Court Administration, formed in 1999, is responsible for administering the justice system and courts, ensuring the separation of the judicial and executive branches of government. You may want to see also Absolutism, or absolutist governmentality, is a political doctrine and practice of unlimited centralised authority and absolute sovereignty, usually vested in a monarch or dictator. The key feature of absolutism is that the ruling power is not subject to checks or challenges by any other agency, be it judicial, legislative, religious, economic, or electoral. Absolutism is often associated with the rise of professional standing armies, bureaucracies, the codification of state laws, and ideologies justifying the monarch's absolute power. The most well-known example of absolutism is absolute monarchy, which reached its peak in Europe during the 16th and 17th centuries, with figures like Louis XIV of France embodying this form of rule. The Danish legal system has unique characteristics that set it apart from other common law countries. While it shares similarities with continental European legal systems, Denmark and its Nordic neighbours are seen as comprising their own distinct legal family. Danish law has evolved with a blend of civil law and common law traits. Major sources of law in Denmark include the Constitutional Act, statutory legislation, regulatory statutes, precedent, and customary law. The country's legal system has been significantly influenced by European Community law since joining the European Community (now the EU) in 1973. Absolutism as a form of government has evolved and declined over time. After reaching its zenith in Europe during the Baroque era, it faced substantial decline following the French Revolution and World War I, giving way to popular sovereignty and new political theories. While absolute monarchy has diminished, elements of absolutist rule can still be observed in modern times, with leaders like Mao Zedong, Kim Jong-Un, and Benito Mussolini exhibiting traits of absolutist governance. The concept of enlightened absolutism is significant in understanding the evolution of absolutist governmentality. Enlightened absolutists, influenced by the Enlightenment, claimed to rule for the well-being of their subjects, and their beliefs about royal power resembled those of regular despots. This form of absolutism, also known as enlightened despotism, marked a transition from pure absolutism to a form of rule where the general well-being became the primary goal. You may want to see also Denmark follows a civil law system. Danish law has many common law traits, but it is not a common-law country. Nordic countries, including Denmark, have legal systems that are significantly different from those of Common Law countries. The Danish court system is based on the two-tier principle, which means that the parties to a case can generally appeal the ruling of one court to a higher instance. Most cases begin at the district court level, and there are 24 district courts in Denmark. Cases can generally be divided into civil and criminal categories. In civil disputes, the court's decision is based on its assessment of the factual circumstances in the case. The parties have the primary responsibility for providing evidence, and there is a burden of proof, meaning that the party making a claim must provide sufficient evidence to support it. In some cases, an expert opinion may be needed to support a party's claim. Danish law is characterised by extensive bodies of systematic and written law. The major sources of law in Denmark include the Constitutional Act, statutory legislation, regulatory statutes, precedent, and customary law. Private law is dominated by a range of individual statutory acts and, in some areas, by unwritten law guided by precedent and custom. The law of Denmark was originally based on regional laws, of which the most important was the Jyske Lov, or the Law of Jutland, from 1241. The Danske Lov, or the Danish Code of 1683, promoted unity. Since Denmark joined the European Community (now the EU) in 1973, its legal system has been significantly influenced by European Community law, and a large proportion of Danish statutes and regulations result from obligations to the European Union. You may want to see also No, Denmark is not a common law country. It is a civil law country with roots in Germanic law, like its Scandinavian neighbours Norway and Sweden. Common law and civil law are two of the most widespread legal systems in the world. Civil law, also known as Roman law, is the most widespread by landmass and population. Common law is employed by the greatest number of people compared to any single civil law system. Civil law is based on codes, whereas common law is based on the decisions in cases by judges. The major sources of law in Denmark include the Constitutional Act, statutory legislation, regulatory statutes, precedent, and customary law. The Funktionærloven, which governs labour law concerning salaried employees, is an example of civil law in Denmark. Other examples include the Ferieloven, which governs vacation time for employees, and the Købeloven, which governs consumer law. Denmark joined the European Community, which later became the EU, in 1973. Since then, its legal system has been significantly influenced by European Community law. Denmark has transferred sovereignty to the EU in various areas, such as immigration and consumer rights, allowing EU laws to be directly applicable in Denmark. However, there is an ongoing debate about the extent of Denmark's obligation to follow EU rules, as the Danish Constitution prohibits granting the EU legislative power in certain areas.Veto Power: Who Can Overturn State Laws?
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