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 December 6, 2016, the Supreme Court of Denmark (SCDK) 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 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 of its interpretation of the Danish Accession Act. Second, the SCDK delimited its own power within the Danish Constitution. In regard to the first point, it concluded that the judge-made principles of EU law developed after the latest amendments of the Accession Act, such as the general principle of non-discrimination on grounds of age, were not binding. This conclusion was consequential since the case at hand concerned such a principle developed by the CJEU after an amendment. With regard to the second step, the SCDK argued that it would in fact exceed its own judicial mandate within the Danish constitutional framework if it interpreted a national law, which violated the principle in question, in conformity with EU-law in a dispute between private parties, or dis-apply it. The decision has spurred great controversy. Critiques have noted that the SCDK’s attempt to push through a different and new institutional order rests on a misconception of EU law that is entirely inadequate for regulating the contemporary and future Danish-European legal interaction.