DEN-1999-2-005
a)  Denmark / b)  Supreme Court / c) / d)  19-02-1999 / e)  I 295/1998 / f) / g) / h)  Ugeskrift for Retsvæsen, 1999, 841; CODICES (Danish).
 
Keywords of the systematic thesaurus:
 
 
Constitutional Justice - Decisions - Types - Finding of constitutionality or unconstitutionality.
Constitutional Justice - Decisions - Types - Annulment.
Sources - Hierarchy - Hierarchy as between national sources - The Constitution and other sources of domestic law.
General Principles - Separation of powers.
Institutions - Legislative bodies - Relations with judicial bodies.
Institutions - Judicial bodies - Jurisdiction.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts.
 
Keywords of the alphabetical index:
 
Grant, state / School, private.
 
Headnotes:
 
An Amending Act depriving some specifically mentioned schools of a State grant that they had been entitled to receive previously was found to be contrary to the principle of the separation of powers laid down in § 3 of the Constitution.
 
Summary:
 
In March 1996 the Minister of Education and Science moved an amendment on, inter alia, the Private Independent Schools Act. The Minister's proposals were primarily aimed at clarifying in the Acts the extent to which the schools receiving State grants should be self-governing. The proposals included provisions on the impartiality of the members of the board of directors as well as accountants, and provisions on the terms on which the schools could enter into, inter alia, tenancy agreements and real estate dealings. Additionally, rules on the administration of the school funds, and rules on the withholding, withdrawal, and reclaiming of State grants were laid down.
 
The Minister of Education and Science had serious doubts as to whether the schools connected to a union of private schools, Tvind, would use the State grant for purposes that the Danish Parliament and the Government wished to encourage. Consequently, the Minister moved an amendment (§ 7 of the Amendment Act) under which Tvind schools were specified as being deprived of the State grant as from 31 December 1996. The serious doubts of the Minister originated from investigations carried out by the Ministry of Education and Science and the Public Auditor which "now gave full insight into the schools' illegal practices and reprehensible conditions".A majority in the Danish Parliament joined the Minister of Education and Science in his general mistrust of the schools' willingness to administer State grants in accordance with the law and consequently passed the proposed provision in § 7.
 
A private school connected to Tvind and covered by the Private Independent Schools Act brought an action against the Ministry of Education and Science claiming that § 7 of the Amendment Act should be declared invalid. The High Court found in favour of the Ministry of Education and Science but the Supreme Court unanimously (agreeing with the private school) found § 7 invalid because it contravened § 3, third sentence, of the Danish Constitution: "Judicial authority shall be vested in the courts of justice." The Supreme Court held that such an interference by means of a legislative Act denying the schools access to judicial review of the right to receive State grants was in fact a final decision in a specific legal dispute. Such a decision does not lie within the jurisdiction of the legislature but falls under the jurisdiction of the judiciary in accordance with the principle of due process of law.
 
Supplementary information:
 
Apart from questions of compensation in relation to expropriation the Supreme Court in this judgment, for the first time since it was founded, found a Parliamentary Act unconstitutional.
 
Languages:
 
Danish.