Denmark’s Supreme Court sets aside CJEU preliminary ruling in employment age discrimination case

The Danish Supreme Court has chosen to set aside a preliminary ruling by the Court of Justice of the European Union (CJEU), which held that the Danish court must either apply domestic law in a manner consistent with EU law or dis-apply any provision of national law which is contrary to EU law regarding alleged age discrimination by a Danish employee. 

However, the Supreme Court did neither when handing down judgment in the main proceedings as to whether a private employer could rely on the Danish rules and refuse to pay a severance allowance. It held that it could not set aside national law because Denmark’s EU Accession Act did not provide a legal basis in a horizontal relationship to give precedence over national law to an unwritten EU principle of non-discrimination on the ground of age. The Danish Supreme Court emphasised that the national constitutional reservation takes precedence over EU law and it cannot interpret Danish law in conformity with the EU law if this is inconsistent with decisions of Danish courts. If it was to do so, the Court stated that it would be acting outside its competence – amending national rules to ensure compliance with EU law would have to be done by an Act of parliament. 

The case is of importance generally as it explores the obligations of national courts when considering questions of EU law that arise in proceedings before it. The decision of the CJEU appears to require national courts to strike down legislation enacted by parliament, where that legislation runs contrary to a Directive. The judgement has particular relevance for member states such as Ireland who adopt a separation of powers model which provides that the sole power for making laws vests in the House of the Oireachtas. 

By way of factual background, a Danish employee, Karsten Rasmussen, was dismissed by his employer, Ajos, in May 2009. As he was employed since 1984, the Danish law on salaried employees provided that he was entitled to a severance allowance of 3 months’ salary. However, Mr. Ramsussen turned 60 by the date of dismissal, and was therefore entitled to his employer’s old-age pension under scheme as he joined the company before the age of 50.  Danish case-law has interpreted this as barring his entitlement to a severance payment. As Mr Rasmussen’s claim for severance pay was upheld at first instance, Ajos appealed to the Supreme Court. Ajos’s argument was that the application of clear and unambiguous rules under Danish law could not be precluded on the basis of a general and unwritten principle of EU law, without jeopardising the principles of legal certainty and legitimate expectation. The general and unwritten principle of EU law at issue here was the principle of non-discrimination on the basis of age, as recognised in the Mangold case.

Click here for analysis of the decision.



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