In these times of fear of the new President of the United States of America a new decision from the Danish Supreme Court, Højesteret, hardly made it to the newspapers. Not that Danish judgements usually are spectacular, but the decision 15/2014 of 6th December 2016 (http://domstol.fe1.tangora.com/page31478.aspx?recordid31478=1318) is actually a game changer: A majority of judges from the Danish Supreme Court concludes that legal principles evolved from the dynamic decision-making of the ECJ after 2008 cannot overrule written Danish law. Furthermore, the Supreme Court states that legal principles within the EU, which are based on International conventions and constitutional provisions from EU member states, have not been incorporated by the Danish accession law in 2008 and, thus, are not directly applicable in Danish law and by Danish courts.

In this particular case, the question was whether or not the EU-principle of prohibition of discrimination based on age would prevail, or whether a Danish provision leaving an employee, who was entitled to a private pension plan from the employer and had entered the pension plan before turning 50, without the normal and regular severance pay when leaving his/her job. In the case at hand, the Danish law of employment directly stated that an employer could abstain from paying such contribution.

The case was referred to the European Court of Justice, which concluded that the Danish provision was violating the prohibition of discrimination due to age, and that national courts were obliged not to apply national provisions violating said principle. The referring court was, thus, instructed – in case no concordant interpretation of the Danish provision was possible – not to apply the Danish law.

In this respect the eight judges of the Danish Supreme Court conclude that the ECJ is competent to interpret EU-law. Whether or not EU-law is applicable in Danish law, however, depends according to the judges on the Danish accession law to the European Union from 2008.

In this case, the Danish judges conclude that the prohibition of discrimination due to age is a legal principle, which is based on International conventions and common legal constitution traditions in the EU-member states. The concrete legal principle has no fundament in the Treaties forming the European Union. A situation, in which a EU-principle should have direct binding effect in a private inter-partes dispute, was not foreseen in the Danish accession law. In view of this, the eight judges conclude that, such a EU-principle is not applicable in an inter partes dispute in Denmark.

It is worth mentioning that the majority of judges stick so close to the wording of the Danish accession law from 2008. From this, one could deduct that principles developed before 2005 were applicable, while EU-principles developed by the ECJ after 2008 – especially based on the Charter of Fundamental Rights of the European Union that entered into force in 2009 – would have no so-called Drittwirkung and thus was not applicable inter partes.

It will be interesting to see and read the reactions on this judgement, since it puts a huge question mark behind one of the core principles of EU-law, mainly developed by the case law of the ECJ: the supremacy of EU-law when confronted with national law. In Denmark, the Supreme Court at least said that this supremacy could only apply to legislation based on the treaties of the European Union.