Sune Klinge, PhD Fellow, Centre for Comparative and European Consitutional Studies, Faculty of Law, University of Copenhagen

The Danish Supreme Court recently issued its judgment in the Ajos case, concerning the scope of the EU employment equality Directive and age discrimination. This decision follows a ruling from the Court of Justice of the European Union (CJEU) that provided two paths for the Danish court: interpret national law in harmony with the Directive or disapply conflicting national provisions. Unexpectedly, the Danish Supreme Court chose a different route. The court decided it couldn’t interpret national law as the CJEU instructed nor could it set aside national law. They argued that the Danish EU Accession Act, which governs the limits of EU law’s authority in Denmark, didn’t grant sufficient power to override national law in this case. Consequently, they ruled against the CJEU’s judgment.

This case centers around Directive 2000/78 and adds to the CJEU’s existing case law on national courts’ obligation to suspend national laws that violate age discrimination principles. The CJEU had already addressed the Ajos case in a preliminary ruling, offering clear guidance to the Danish Supreme Court on how to proceed.

The Danish court had posed two questions to the CJEU. First, they asked about the compatibility of Danish law with the Directive and the principle of non-discrimination based on age. Second, they questioned the balancing of rights and principles in this case, particularly whether a Danish court could prioritize legal certainty over the prohibition of age discrimination, even if it meant denying an employee severance pay.

The CJEU firmly rejected the Danish Supreme Court’s proposed solution of prioritizing legal certainty over EU law. They insisted that when dealing with cases under Directive 2000/78, national courts must either interpret national laws in line with the Directive or disapply any conflicting national provisions. The CJEU emphasized that neither legal certainty nor the potential for the employee to seek compensation from the Danish state for violating EU law could change this obligation.

Despite this clear guidance, the Danish Supreme Court decided that the Danish constitution took precedence over EU law in this case. They argued that their EU Accession Act did not grant the EU the authority to supersede national law in this specific situation.

To understand the Supreme Court’s decision, we need to revisit the context that led them to seek guidance from the CJEU in the first place. In a previous case, Ole Andersen, the CJEU found that a Danish law denying severance pay to employees eligible for an employer-funded pension before age 50 violated the EU Directive. This ruling applied in a case involving a public authority, but the Ajos case involved two private individuals.

The Danish Supreme Court questioned whether the same approach could be used in a case between private individuals, highlighting discussions among CJEU Advocates General about the legal basis for applying general EU principles in such situations. They also expressed concerns about legal certainty for individuals when unwritten EU principles might override written national laws.

The CJEU’s response to the Ajos case didn’t offer the Danish Supreme Court an alternative solution. They were compelled to either apply EU law as instructed or defy the CJEU.

In a controversial move, the Danish Supreme Court chose to uphold Danish law. They argued that interpreting national law as the CJEU demanded would be “contra legem,” meaning it would contradict the clear legal position established by Danish law. The court detailed how the relevant Danish law was consistently interpreted for years and reaffirmed by the Danish Parliament. They argued that changing this interpretation would overstep their judicial authority.

Furthermore, the Danish Supreme Court asserted that they were not empowered to set aside national law, even when it conflicted with an unwritten EU principle like age discrimination. They argued that the Danish EU Accession Act, which defines the limits of EU law’s power in Denmark, did not provide the legal basis for such an action. They meticulously examined the history of Denmark’s EU accession and subsequent amendments, concluding that the CJEU lacked the authority to prioritize an unwritten EU principle over national law in this scenario. They also pointed out that the CJEU, in previous case law like Mangold, did not consider the balance between legal certainty and prohibiting age discrimination.

Ultimately, the Danish Supreme Court ruled that if they were to disregard national law, they would exceed their judicial mandate and infringe upon the separation of powers outlined in the Danish Constitution. They argued that changing the national law in this case would require an act of Parliament.

However, one dissenting judge believed that EU law should have prevailed, arguing that no conflict existed with the Danish EU Accession Act based on previous Supreme Court rulings.

This judgment can be interpreted either as a blatant disregard for the CJEU’s authority or a contribution to the ongoing dialogue between legal systems. Regardless, it undoubtedly adds fuel to the debate on who should determine the limits of EU law’s power within national legal frameworks.

The aftermath of this case promises to be fascinating. The employee at the heart of this case is suing the Danish state for the lost severance pay. Additionally, the European Commission might take action against Denmark for failing to provide legal protection under EU law. The Ajos case will undoubtedly continue to influence the relationship between Denmark and the European Union.

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Please feel free to contact me if you want more information about the case or the related issues from a national Danish perspective. I am doing a PhD project about the horizontal effect of EU law and member state liability from a national Danish perspective. Before I joined Academia I was practicing lawyer at one of the leading law firms in Denmark working extensively with EU law.

Photo credit: wikipedia

Barnard & Peers: chapter 6; chapter 8; chapter 9; chapter 20