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

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.