Competing Supremacies and Clashing Institutional Rationalities: the Danish Supreme Court's Decision in the Ajos Case and the National Limits of Judicial Cooperation

Abstract

On 6 December 2016, the Supreme Court of Denmark (SCDK) ruled on the grounds of Ajos case. The ruling concerned the scope of the principle of non‐discrimination on the grounds of age and whether a national court could weigh the principle of non‐discrimination on grounds of age against the principles of legal controversy, as the protection of legitimate expectations. The ruling has caused a great deal of controversy as the SCDK defied clear guidelines from the Court of Justice of the European Union (CJEU) in the ruling. Moreover, the case has been seen by some as an example of a new ‘sovereigntism’ in Danish law that is at odds with the project of European integration through law. This article explains the case from both an EU law and Danish constitutional law perspective. It concludes by providing a set of explanations of the new course of the SCDK in its relationship with the EU.

Backlash against international courts: explaining the forms and patterns of resistance to international courts

“…While Britain contemplated leaving Strasbourg and the ECtHR, yet ended up leaving Brussels and the EU, a number of countries had already left the Inter-American Court of Human Rights (IACtHR), including Trinidad and Tobago and Venezuela. Moreover, the IACtHR witnessed resistance from domestic courts (Huneeus, 2011) – a phenomenon also well known to EU law, both historically (Alter, 2001) and currently (Dyevre, 2016; Komárek, 2012; Madsen et al ., 2017). In the Eurasian region, the newly established Court of Justice of the Eurasian Economic Union (EAEU) represented in reality a step back compared to its predecessor, which could adjudicate cases brought by the regional Commission, and rule on preliminary references and issue advisory opinions when asked by national courts (Kembayev, 2016).…”

Resistance Against the Court of Justice of the European Union

“…This case is noteworthy because, unlike in the Czech case, it was the Supreme Court itself that sent the original reference. 11 While the facts of the case were unremarkable, the Supreme Court decided to interpret the applicability of CJEU doctrines in Denmark through the lens of the Danish Accession Act (Madsen, Olsen, & Sadl, 2017). It held that all judicial innovations that took place after the most recent amendments to the Accession Act would not be legally binding on Danish courts.…”

Resistance against the Court of Justice of the European Union

“…This case is noteworthy because, unlike in the Czech case, it was the Supreme Court itself that sent the original reference. 11 While the facts of the case were unremarkable, the Supreme Court decided to interpret the applicability of CJEU doctrines in Denmark through the lens of the Danish Accession Act (Madsen et al, 2017).…”