Covid-19 and Emergency laws in Denmark
Av doktoranden ANNE METTE FALLENTIN NYBORG, universitetslektor SUNE KLINGE, professor HELLE KRUNKE och professor JENS ELO RYTTER1
The Covid-19 pandemic has been a test for Denmark’s pandemic preparedness planning and raised issues in relation to the Danish Constitution concerning both democracy, rule of law and human rights. In this article, the question is asked how close to the constitutional edge the Danish response to Covid-19 has come.
1 Emergency law in general in Denmark
1.1 Constitutional necessity
Unlike many other Western European constitutions, the Danish constitution does not have a general constitutional provision or regime on constitutional necessity or state of emergency. The Constitution contains only one special Section on state of emergency namely Section 23, which allows the government to issue provisional Acts if it is not possible to convene Parliament. Such provisional Acts may not violate the Constitution and they must be submitted for Parliament’s approval or rejection as soon as Parliament is able to convene again.
Exceptional (and unconstitutional) measures can be enacted without formally proclaiming a state of emergency under the concept of constitutional necessity. Constitutional necessity is widely recognized as an unwritten part of the Danish constitution and is established in constitutional scholarship and in case law from legal proceedings during the German occupation of Denmark under World War II.2 The most frequently used definition in legal theory on constitutional emergency is “a very serious threat to the state and its institutions”.3 A situation would have to meet this threshold to justify derogations from the Constitution.
1 This project has received support and funding from the European Union (EU) Horizon2020 project DEMOS, grant No 822590. There are overlaps between this article and Klinge, S., Krunke, H., Nyborg, A.F. and Rytter, J.E., Covid-19 and Constitutional law in Denmark, in COVID-19 and Constitutional Law: E-book by The International Association of Constitutional Law (IACL) and the Institute of Legal Research of Mexico’s National University, Serna, J. M., Krunke, H. & Nguyen Duy, I. (red.). Instituto de Investigaciones Jurídicas, of Mexico’s National University. However, this article contains deeper and more unfolded analyses of specific Covid19 related legal problems. 2 Ugeskrift for Retsvæsen 1940, pages 1095 et seq., Ugeskrift for Retsvæsen 1941, pages 1070 et seq., Ugeskrift for Retsvæsen 1945, pages 570 et seq. 3 Sørensen, Max: ”Statsforfatningsret” (1969), pages 36–40; Zahle, Henrik: ”Dansk forfatningsret. 3” (2003), page 286; Rytter, Jens Elo: ”individets Grundlæggende Rettigheder” (2019), page 123; Christensen, Jens, Jensen, Jørgen & Jensen, Michael: ”Dansk statsret” (2020) page 34.