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

• Published date: 01 March 2017
• Author: Mikael Rask Madsen,Urška Šadl,Henrik Palmer Olsen
• DOI: http://doi.org/10.1111/eulj.12215
• Date: 01 March 2017

Competing Supremacies and Clashing

Institutional Rationalities: the Danish

Supreme Court’sDecisionintheAjos Case

and the National Limits of Judicial

Cooperation

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 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.

1

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,

1

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.

2

More notably still, the SCDK used the occasion

to set new boundaries to the applicability of the CJEU’s rulings in Denmark. It did so in

two steps:first, the SCDK delimited the competences of the European Union (EU) through

the lens ofits interpretationof the Danish AccessionAct.

3

Second, the SCDK delimited its

own power within the Danish Constitution. In regard to the first point, it concluded that the

* Mikael Rask Madsen is Professor of Law andDirector of iCourts, The Danish National ResearchFounda-

tion’s 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.

1

Case no. 15/2014 Dansk Industri (DI) acting for Ajos A/S vs. The estate left by A, availableat http://www.

hoejesteret.dk/hoejesteret/nyheder/Afgorelser/Documents/15-2014.pdf. An unofficialand informal transla-

tion is available at http://www.supremecourt.dk/supremecourt/nyheder/pressemeddelel ser/Documents/

Judgment%2015-2014.pdf.

2

Case C-441/14 Dansk Industriv. Rasmussen, ECLI:EU:C:2016:278,available at http://curia.europa.eu/juris/

document/document_print.j sf?

doclang=EN&text=&pageIndex=0&part=1&mode=lst&docid=176461&occ=first&dir=&cid=394312.

3

Act of Parliament no. 321 of April 30, 2008, available at https://www.retsinf ormation.dk/pdfPrint.aspx?

id=116752.

European LawJournal, Vol. 23, No. 1-2, August 2017,pp. 140–150.

© 2017 John Wiley & Sons Ltd.