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

Published date01 March 2017
Date01 March 2017
Competing Supremacies and Clashing
Institutional Rationalities: the Danish
Supreme CourtsDecisionintheAjos Case
and the National Limits of Judicial
Mikael Rask Madsen, Henrik Palmer Olsen and Urška Šadl*
Abstract: On 6 December 201 6, the Supreme Court of Denma rk (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 deed 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 sovereigntismin 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.
On 6 December 2016, the Supreme Court of Denmark (SCDK), which took the European
legal community by surprise. In its decision in the Ajos case,
the SCDK disregarded the
guidelines of the Court of Justice of the European Union (CJEU) which had been set out
in a preliminary ruling earlier in the year.
More notably still, the SCDK used the occasion
to set new boundaries to the applicability of the CJEUs rulings in Denmark. It did so in
two steps:rst, the SCDK delimited the competences of the European Union (EU) through
the lens ofits interpretationof the Danish AccessionAct.
Second, the SCDK delimited its
own power within the Danish Constitution. In regard to the rst point, it concluded that the
* Mikael Rask Madsen is Professor of Law andDirector of iCourts, The Danish National ResearchFounda-
tions Centerof Excellence forInternationalCourts, Faculty ofLaw, University ofCopenhagen. HenrikPalmer
Olsen is Professorof law at iCourts and Vice-Deanof the Faculty of Law, Universityof Copenhagen. Urška
Šadl is Professor of Law, EuropeanUniversity Instituteand Global ResearchFellow at iCourts. This research
is funded by the Danish NationalResearch Foundation Grant no. DNRF105 and conductedunder the aus-
pices of iCourts.
Case no. 15/2014 Dansk Industri (DI) acting for Ajos A/S vs. The estate left by A, availableat http://www. An unofcialand informal transla-
tion is available at ser/Documents/
Case C-441/14 Dansk Industriv. Rasmussen, ECLI:EU:C:2016:278,available at
document/document_print.j sf?
Act of Parliament no. 321 of April 30, 2008, available at https://www.retsinf
European LawJournal, Vol. 23, No. 1-2, August 2017,pp. 140150.
© 2017 John Wiley & Sons Ltd.

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