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

Abstract

In its combative Ajos judgement recently rendered by the Danish Supreme Court, 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 CJEU had continued to develop the controversial general principle prohibiting age discrimination. This issue lay at the heart of the dispute and it seems very likely that the Danish Supreme Court felt that the CJEU had been too activist when it originally ‘launched’ this general principle. Indeed, the reasoning of the Danish Supreme Court gives the impression that the CJEU had itself created it out of nowhere. In turn this appeared to be an implicit reference to the widely criticised interpretative approach of the CJEU, resulting in a far-reaching willingness to espouse judicial activism. But in acting as it did, it seems ironic that the Danish Supreme Court itself showed that it too had an activist streak. Thus, both Courts were quite imaginative in trying to mould the central issues as falling within their exclusive 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 the 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. Also, we discuss how if that degree of cooperation were to break down, as has happened in Ajos as a result of the Supreme Court’s failure to follow the preliminary ruling of the CJEU uniformity of application of EU law could be jeopardized.