Dialogue Or Disobedience Betwixt The European Courtroom Of Jurist Too The Danish Constitutional Court? The Danish Supreme Courtroom Challenges The Mangold-Principle

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

Following the Court of Justice’s judgment inward Case C-441/14 inward the Ajos-case before this year, the Supreme Court of Kingdom of Denmark has handed downwards its judgment inward the principal proceedings. Despite the fact that the preliminary ruling left the Supreme Court alongside only 2 options; (1) apply national constabulary inward a agency that is consistent alongside the directive or (2) disapply whatever provision of national constabulary that is reverse to European Union constabulary the Danish Supreme Court did neither. The Danish Supreme Court found that an interpretation consistent alongside European Union constabulary was non possible nor could the Supreme Court fix aside national constabulary since the Danish European Union Accession Act did non confer sovereignty to the extent required for the unwritten European Union regulation prohibiting discrimination on the grounds of historic catamenia to take away precedence over national law. If the courts were to fix aside national constabulary they would live acting exterior their constitutional limits to their competences equally judicial power. Thereby the Supreme Court chose a 3rd selection together with fix aside the sentence from the CJEU.

This illustration from the Danish Supreme Court no. 15/2014 deals alongside the range of Directive 2000/78 (the European Union job equality Directive) together with the full general regulation of non-discrimination on grounds of age, adding about other illustration to the ECJ’s Mangold together with Kücükdeveci illustration constabulary (on the requirement for national courts to suspend national constabulary which breaches the regulation of historic catamenia discrimination) nether Danish law.

The CJEU’s ruling inward the Ajos-case has previously been discussed here. Consequently, only the principal conclusions needed to fully empathize the judgment inward the principal proceedings nether Danish constabulary volition live revisited.

The Danish Supreme Court referred the next questions to the CJEU: The outset query was related to the compliance of the national rules implementing the Directive together with the application of the regulation of non-discrimination on grounds of age. The minute query formulated yesteryear the Danish Supreme Court referred to the balancing of rights together with principles, together with volition live cited inward full, since it contributes to the agreement of the judgment from the Danish Supreme Court lastly week:

“Is it consistent alongside European Union constabulary for a Danish courtroom hearing an activity inward which an employee seeks from a private-sector employer payment of a severance allowance which, nether the Danish constabulary described inward query 1, the employer is non leap to pay, fifty-fifty though that is reverse to the full general European Union regulation prohibiting discrimination on grounds of age, to weigh that regulation together with the number of its direct effect against the regulation of legal certainty together with the related regulation of the protection of legitimate expectations and to conclude on that soil that the regulation of legal certainty must take away precedence over the regulation prohibiting discrimination on grounds of age, such that the employer is, inward accordance alongside national law, relieved of its obligation to pay the severance allowance and, inward social club to determine whether such a balancing exercise may live carried out, is it necessary to take away into consideration the fact that the employee may, inward appropriate cases, claim compensation from the Danish State on describe of piece of work concern human relationship of the incompatibility of Danish constabulary alongside European Union law?” (my underlining)

The CJEU openly rejected the solution offered yesteryear the Supreme Court, leaving it for the national courts to residuum the European Union principles against each other, together with gave clear guidance on how the Supreme Court were to settle the case:

“EU constabulary is to live interpreted equally pregnant that a national courtroom adjudicating inward a dispute betwixt private persons falling inside the range of Directive 2000/78 is required, when applying provisions of national law, to translate those provisions inward such a agency that they may live applied inward a agency that is consistent alongside the directive or, if such an interpretation is non possible, to disapply, where necessary, whatever provision of national constabulary that is reverse to the full general regulation prohibiting discrimination on grounds of age. Neither the principles of legal certainty together with the protection of legitimate expectations nor the fact that it is possible for the private someone who considers that he has been wronged yesteryear the application of a provision of national constabulary that is at odds alongside European Union constabulary to bring proceedings to works life the liability of the Member State concerned for breach of European Union constabulary can alter that obligation” (my underlining)

On this soil the hearing before the Supreme Court took house eleven together with fourteen Nov 2016, together with bearing the CJEU’s guidance inward mind, the Supreme Court had to determine whether the private employer could rely on the Danish rules together with non pay severance allowance to the employee.

As emphasized higher upward inward the quotation, the preliminary ruling left the Supreme Court alongside only 2 options; (1) applying national constabulary inward a agency that was consistent alongside the Directive or (2) disapplying whatever provision of national constabulary that was reverse to European Union law. The Danish Supreme Court did neither. The Supreme Court came to the conclusion that the national constitutional reservation had to take away precedence over European Union constabulary according to the European Union Accession Act.

Before entering into the extensive argumentation leading to this controversial conclusion, it is worth considering the circumstances together with the dilemma of the Supreme Court leading to the determination to brand a preliminary reference to the CJEU.

In the Danish illustration Ole Andersen from 12 Oct 2012 the CJEU found, that the Directive precluded national rules (same national rules equally inward the Ajos-case) regarding payment of severance allowance. Paragraph 2a(3) of the Danish Law on salaried employees held that:

No severance allowance shall live payable, if the employee volition – on termination of the job human relationship – have an erstwhile historic catamenia pension from the employer together with the employee has joined the pension scheme inward query before attaining the historic catamenia of 50 years.

The CJEU found that the Directive must live interpreted equally precluding national legislation pursuant to which workers who are eligible for an old-age pension from their employer nether a pension scheme which they stimulate got joined before attaining the historic catamenia of 50 years cannot, on that solid soil alone, claim a severance allowance aimed at assisting workers alongside to a greater extent than than 12 years of service inward the task inward finding novel employment, together with thereby overruling the national rule. 

In the national proceedings the Western High Court (the illustration was non tried at the Supreme Court) ruled inward favor of the employee against a world authorization equally the employer – a vertical European Union constabulary relationship.

The query before the Supreme Court inward the Ajos-case was if the same approach could live applied inward a horizontal European Union constabulary human relationship betwixt 2 private individuals.

By referring the illustration to the CJEU, the Supreme Court highlighted a give-and-take carried out yesteryear the Advocates-General of the CJEU most the doctrinal soil of horizontal application of full general European Union principles.

Advocate General Kokott had inward her take in to the Ole Andersen-case questioned that the CJEU had relied straight on the full general legal regulation of the prohibition of historic catamenia discrimination, stating that it was for the national courtroom to fix aside whatever provision of national law, which may conflict alongside that prohibition. She found inward paragraph 22 that it appeared:

“to live a makeshift scheme  for the purposes of resolving issues of discrimination inward legal relationships betwixt individuals, inward which Directive 2000/78 is non equally such straight applicable together with cannot thence supervene upon national civil or job law.”

The Advocate General also emphasized that the thought of an in-depth reappraisal together with evidence of the doctrinal soil of the controversial horizontal direct effect of full general legal principles or primal rights betwixt individuals were certainly appealing, but non necessary to resolve the illustration at hand.

Also Advocate General Trstenjak had inward her take in inward the Dominguez-case reservations regarding legal certainty for private individuals together with the take away chances of mixing sources of constabulary equally regard to directives equally secondary constabulary together with full general principles equally primary European Union law.

About the absence of legal certainty for private individuals she emphasized inward paragraph 164, that

“the regulation of legal certainty requires that rules involving negative consequences for individuals should live clear together with precise together with their application predictable for those bailiwick to them. However, equally it volition never live possible for a private private to live sure when an unwritten full general regulation given specific human face yesteryear a directive volition gain credence over written national law at that topographic point would, from his indicate of view, live incertitude equally to the application of national constabulary similar to that experienced where a directive is straight applied inward a human relationship betwixt private individuals”

The Danish Supreme Court raised the same concerns together with yesteryear referring the Ajos-case to the CJEU aimed to detect a solution yesteryear balancing the conflicting principles. By rejecting the solution yesteryear the Danish Supreme Court the CJEU offered no agency out for the Danish Supreme Court, but to plow on a plate together with apply European Union constabulary equally told yesteryear the CJEU if compliance were to live secured.

The Danish Supreme Court did non human activity equally expected; instead, they found their ain agency of solving the job together with securing legal certainty nether Danish law.

The reasoning of The Supreme Court

Interpretation consistent alongside European Union constabulary

The Supreme Court held – inward describe alongside the formulation of its query to the CJEU inward 2014 – that the legal seat nether Danish constabulary was clear, together with that it would non live possible to become far at an interpretation of the national constabulary that was consistent alongside the Directive equally interpreted yesteryear the judgment of the CJEU inward the Ole Andersen-case yesteryear using the methods of interpretation recognized nether Danish law.

Reflecting on the application of the contra legem assessment made yesteryear the Supreme Court it is worth relating it to the harshly formulated paragraph 34 of the CJEU’s Ajos-judgment, where the CJEU stipulated, that:

“the national courtroom [the Danish Supreme Court] cannot validly claim that it is impossible for it to translate the national provision at number inward a agency that is consistent alongside European Union constabulary yesteryear mere argue of the fact that it has consistently interpreted that provision inward a agency that is incompatible alongside European Union law.”

This seems to reverberate a unlike agreement yesteryear the CJEU of the concept of “contra legem”, together with thence the reasoning on that thing is given a potent vocalization inward the Danish Supreme Court’s judgement. The Supreme Court explains inward details that the legal seat nether Danish constabulary was clear together with was non only relying on the interpretation made yesteryear the Supreme Court itself. The seat had been reaffirmed over the years since the Danish Parliament introduced the dominion inward 1971 together with the Parliament kept the same wording of the provision inward the afterwards amendment inward 1996. Consequently, the Supreme Court found that it could non alter the legal seat equally the CJEU suggested yesteryear using the methods of interpretation recognized nether Danish law.

Therefore, the Supreme Court found that it would live “contra legem” to translate the national constabulary inward conformity alongside the Directive since the national legal seat was clear. In this reasoning the Supreme Court together with the nine judges acted unanimously.

The full general regulation of non-discrimination on grounds of age

In the minute purpose of the judgement’s reasoning the bulk of 8 out of the nine judges came to the conclusion that the Supreme Court could non fix aside national constabulary since the Danish European Union Accession Act did non confer sovereignty to the extent required for the unwritten European Union regulation prohibiting discrimination on the grounds of historic catamenia to take away precedence over national law.

The reasoning focuses on the lack of legal soil inward the Danish European Union Accession Act which is the Act that sets the limits of the conferred sovereignty to the European Union inward describe alongside paragraph twenty of the Danish Constitution.

The Supreme Court went on to perform an in-depth analysis of the preparatory works of the Accession Act (travaux préparatoire) leading to Kingdom of Denmark joining the European Union inward 1972 together with the subsequent amendments to the Accession Act.

The Supreme Court found that the Danish Parliament did non explicitly refer to the Mangold together with Kücükdeveci illustration constabulary inward the preparatory works to the Lisbon Accession Act amendment. On this soil the Supreme Court arrived at the conclusion, that the CJEU did non stimulate got the competence or legal soil to give precedence to the unwritten regulation prohibiting discrimination on grounds of historic catamenia inward a illustration where this was reverse to national law.

Reflecting farther on the Mangold illustration of 2005, the Supreme Court also noted that the CJEU inward the Mangold illustration constabulary did non residuum the legal certainty together with the protection of legitimate expectations against the prohibition of discrimination on grounds of age. It is non clear if the Supreme Court finds that the resultant inward the Mangold illustration would stimulate got been unlike if the CJEU had reflected on this balancing. By revisiting the finding inward the CJEU’s Ajos illustration 1 could brand the argument, that it would non stimulate got changed the result. 

The facts of the illustration – the dismissal of the employee - were before the Lisbon treaty entered into forcefulness the 1 Dec 2009. Consequently, the Supreme Court stressed that the application of whatever Charter provision since it was non legally binding together with thereby disregarded the declaration that the employee could rely on the Charter provisions.

After terminal that the Danish Accession Act does non supply legal soil inward a horizontal human relationship to give precedence to an unwritten European Union constabulary regulation the Supreme Court adds:  

“If the Supreme Court inward a province of affairs similar this were to fix aside national constabulary the Court would live acting exterior their limits to their competences equally judicial power.” (Translation made yesteryear the author)

And thereby, non only referring to the Accession Act together with sovereignty but also to the separation of mightiness inward the Danish Constitution department iii equally it would require an human activity of parliament to better the national rules together with reassure compliance alongside European Union law.

In the terminate it should live noted that 1 approximate found that the European Union constabulary should take away precedence over national law, together with that at that topographic point was no conflict alongside the Danish European Union Accession Act next the Supreme Courts judgments inward the Maastricht together with Lisbon cases on sovereignty. The minority approximate voted to follow the directions made yesteryear the CJEU.

Reflection together with follow-up litigation

Last week’s sentence from The Danish Supreme Court tin definitely live seen equally disobedience equally the CJEU’s guidance inward the Ajos-case was rattling precise together with gave the Supreme Court only 2 options, but the Supreme Court pick out a third. Or it tin live seen equally contributing to the combat most the dialogue betwixt the courts; it depends on the eyes of the beholder.

It sure enough adds a chapter to give-and-take on where the contra legem evidence is best performed; inward the national constabulary regimes or yesteryear the CJEU together with it sets out the limits of the Danish Supreme Courts constitutional mandate inward social club to reassure compliance alongside European Union law.

The probable aftermath of the illustration is also fascinating since the employee has brought an activity against the Danish nation claiming that the nation is liable for the loss of severance pay. The liability illustration has been suspended on the determination from the Supreme Court.

Another possible outcome could live follow-up litigation from the European Union Commission yesteryear launching infringement proceedings against Kingdom of Denmark equally a Member State on the lack of effective legal protection nether article xix TEU or the duty of sincere cooperation nether article four (3) TEU. In whatever illustration the Ajos-case volition live revisited together with stimulate got a major demeanour upon on the human relationship betwixt the European Union together with Denmark.

---ooOoo---

Please experience costless to contact me if you lot desire to a greater extent than data most the illustration or the related issues from a national Danish perspective. I am doing a PhD projection most the horizontal effect of European Union constabulary together with fellow member nation liability from a national Danish perspective. Before I joined Academia I was practicing lawyer at 1 of the leading constabulary firms inward Kingdom of Denmark working extensively alongside European Union law.

Photo credit: wikipedia

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

Share this post