Danish Supreme Court Infringes the EU Treaties by its Ruling in the Ajos Case

This article discusses the rulings of the CJEU1 and the Danish Supreme Court2 in the Ajos-case. This case is about the general principle of prohibition of age discrimination. The dispute concerned two private persons – an employer and an employee – who disagreed on the payment of a severance allowance. The main legal issue in the case is how EU law is to be applied by the national
courts in the context of disputes between private persons. The Ajos-case is a Danish example of the reception of the CJEU’s judgments in Mangold 3 and Kücükdeveci4 in national courts, see these cases and the reception of them by the German Bundesverfassungsgericht below in section 5. In its judgment in the Ajos-case, the CJEU upheld its findings in Mangold and Kücükdeveci. The Danish Supreme Court defied the CJEU and did the opposite of what the CJEU had held it was obliged to do. The structure of this article is as follows: in section 2, we give a short description of the relevant facts and law in the Ajos-case. In section 3, we analyse the roles of the CJEU and the national courts in light of the theories of monism and dualism. Section 4 deals with interpretation. Section 5 looks into supremacy and direct horizontal effect of general principles of EU law, including the Mangold and Kücükdeveci case law and the horizontal effect of the Charter of Fundamental Rights. Section 6 discusses state liability for non-compliance with EU law. Section 7 discusses whether infringement proceedings can and should be taken against Denmark because of the Supreme Court’s ruling. In section 8, we summarise the conclusions which we draw from the analysis undertaken in the previous sections.