TY - JOUR

T1 - Activist Infighting among Courts and Breakdown of Mutual Trust? The Danish Supreme Court, the CJEU, and the Ajos Case

AU - Neergaard, Ulla

AU - Sørensen, Karsten Engsig

PY - 2017

Y1 - 2017

N2 - In its combative Ajos judgment recently rendered by the Danish SupremeCourt, the court openly and controversially challenged the authority of the CJEU.By the same token, in the preliminary ruling by the CJEU preceding it, the CJEUhad continued to develop the controversial general principle prohibiting agediscrimination. This issue lay at the heart of the dispute and it seems very likelythat the Danish Supreme Court felt that the CJEU had been too activist when itoriginally ‘launched’ this general principle. Indeed, the reasoning of the DanishSupreme Court gives the impression that the CJEU had itself created it out ofnowhere. In turn this appeared to be an implicit reference to the widely criticizedinterpretative approach of the CJEU, resulting in a far-reaching willingness toespouse judicial activism. But in acting as it did, it seems ironic that the DanishSupreme Court itself showed that it too had an activist streak. Thus, both Courtswere quite imaginative in trying to mould the central issues as falling within theirexclusive jurisdiction. As a consequence of the judgments, parts of EU law are not, it appears, fully part of Danish law, but unfortunately the full implications and therefore the remedy are far from certain. While both judgments appear to reflect a lack of mutual trust between the two courts, they also expose a range of highly significant issues of wide importance. To understand both what went wrong in the judicial dialogue and the wider issues at stake, in this article the judgments are analysed in depth and placed into their wider context. Among other matters, we have considered how the courts should strike a sensitive balance, which has to exist in the relationship between the national courts and the CJEU, requiring mutual trust or, at the least, judicial comity in accordance with the hierarchy of norms established by virtue of EU law.

AB - In its combative Ajos judgment recently rendered by the Danish SupremeCourt, the court openly and controversially challenged the authority of the CJEU.By the same token, in the preliminary ruling by the CJEU preceding it, the CJEUhad continued to develop the controversial general principle prohibiting agediscrimination. This issue lay at the heart of the dispute and it seems very likelythat the Danish Supreme Court felt that the CJEU had been too activist when itoriginally ‘launched’ this general principle. Indeed, the reasoning of the DanishSupreme Court gives the impression that the CJEU had itself created it out ofnowhere. In turn this appeared to be an implicit reference to the widely criticizedinterpretative approach of the CJEU, resulting in a far-reaching willingness toespouse judicial activism. But in acting as it did, it seems ironic that the DanishSupreme Court itself showed that it too had an activist streak. Thus, both Courtswere quite imaginative in trying to mould the central issues as falling within theirexclusive jurisdiction. As a consequence of the judgments, parts of EU law are not, it appears, fully part of Danish law, but unfortunately the full implications and therefore the remedy are far from certain. While both judgments appear to reflect a lack of mutual trust between the two courts, they also expose a range of highly significant issues of wide importance. To understand both what went wrong in the judicial dialogue and the wider issues at stake, in this article the judgments are analysed in depth and placed into their wider context. Among other matters, we have considered how the courts should strike a sensitive balance, which has to exist in the relationship between the national courts and the CJEU, requiring mutual trust or, at the least, judicial comity in accordance with the hierarchy of norms established by virtue of EU law.

UR - https://academic.oup.com/yel/article/doi/10.1093/yel/yex008/4596663?guestAccessKey=fb949231-db51-4e6d-957f-20fa2adb72a6

U2 - 10.1093/yel/yex008

DO - 10.1093/yel/yex008

M3 - Journal article

SP - 1

EP - 39

JO - Yearbook of European Law

JF - Yearbook of European Law

SN - 0263-3264

ER -