Who exerts judicial review over the European Court of Justice?

by Rasmus Smith Nielsen, PhD student

The article concludes that the Danish Supreme Court in its judgment UfR 2017.824H (Ajos case) has ruled that 1) an application of the general EU principle prohibiting discrimination on grounds of age in Denmark together with 2) direct effect and horizontal effect of article 21 in the Charter on Fundamental Rights of the European Union and 3) direct effect of law derived from TEU art. 6, section 3, would under e.g. the Danish EU accession law constitute an infringement of art. 88 of the Danish Constitution (amendment of the constitution), and 4) the European Court of Justice has according to the Danish Supreme Court, at least, before 1th December 2009 infringed the treaty (currently TEU and TFEU), cf. e.g. TEU art. 5, section 2, TEU art. 13, section 2, and TFEU art. 352.

1.Introduction

This article is written due to the Danish Supreme Court’s 1) annulment of the general EU principle prohibiting discrimination on grounds of age, 2) the annulment of the horizontal effect (effect between natural and/or legal persons) of article 21 in the Charter on Fundamental Rights of the European Union, and 3) the annulment of the direct effect of law derived from TEU art. 6, section 3, in Denmark in judgment of 6 December 2016 in case 15/2014 (the Ajos case), published in UfR 2017.824H and on the Danish Supreme Courts homepage: www.hoejesteret.dk. The annulment by the Danish Supreme Court of the said EU principle, etc., in Denmark was contrary to the ECJ judgment in case C-441/14, Ajos, e.g. para 22. Therefore, there is a constitutional conflict between the Danish Supreme Court and the ECJ.

The famous French cartoon, Iznogoud, deals with the classical problem of lust for power or lust for theft of legal basis (statutory authority or legal authority). The Grand Vezier Iznogoud’s greatest wish and objective, which he does everything to fulfill or reach with his servant Dilat Larath, is to become Caliph instead of the Caliph or in others words absolute king instead of a subordinate to the absolute king. This is expressed in his catchphrase: I want to be Caliph instead of the Caliph or je veux étre calife á la place du calife.

In democratic societies as all member of the European Union are obliged to be, cf. e.g. TEU art. 2 and 7, one could as a metaphor and in an European present-day context view the Caliph as the people and judges as Grand Veziers. Under such a view, plainly writing, this article examines, if the Danish Supreme Court and/or the ECJ in the specific case, Ajos, act, as if they – in a merely constitutional context – were Iznogoud or want to become absolute king instead of subordinates to the people. This is done from the legal perspective or via the legal reasoning of the Danish Supreme Court with the intention for debate, thoughtfullness and inspiration for a wider audience than e.g. Danish juris doctors (in Danish cand.jur.).

2.The legal problems for judicial review under the Danish Supreme Court’s legal reasoning

This article judicially reviews under the Danish Supreme Court’s legal reasoning in UfR 2017.824H, cf. ECJ case C-441/14, Ajos, whether 1) the application of the general EU principle prohibiting discrimination on grounds of age (public legal policy) will constitute an infringement of the Danish constitution article 88, and whether the ECJ itself has infringed the treaty (TEU and TFEU) via e.g. independent judicial policy-making/public legal policy creating the general EU principle prohibiting discrimination on grounds of age (e.g. ECJ case C-144/04, Mangold) and 2) after 1th December 2009 giving article 21 in the Charter on Fundamental Rights of the European Union direct effect and horizontal effect (effect between natural and/or legal persons in Denmark), and 3) giving law derived from TEU art. 6, section 3, direct effect?

3. The Danish Constitution, The Danish Supreme Court and the European Court of Justice

The Danish Supreme Court and the other Danish courts are subordinate to the Danish Constitution, EU law and written laws, etc., and must oblige thereto, cf. article 64, section 1, 1st sentence of the Danish Constitution.2

The member states of the European Union have under or according to the Treaty (currently TEU and TFEU) with acceded ECJ case law conferred legislative power, executive power and judicial power to the European Union with direct effect in the member countries and, at least, same legal source value as national law (EU law has primacy effect e.g. unless an infringement clearly was intended by the Danish legislative power), cf. article 20 of the Danish Constitution (qualified majority of the Danish parliament or a referendum), cf. the Danish Supreme Court with regard to the content of article 20 in the Danish Constitution in UfR 1998.800H (when to use art 88 or art. 20 of the Danish Constitution), cf. later UfR 2013.1451H (when to use art. 20 or art. 19 of the Danish Constitution). Therefore, the ECJ is part of the Danish legal hierarchy, cf. also TFEU art. 267 (reference for a prelimary ruling).

The European Court of Justice shall only act within the limits of the powers conferred on it in the treaties and in conformity with the procedures and conditions set out in them, cf. TEU art. 5, section 1, 1st sentence, and section 2, TEU art. 13, section 2, cf. TFEU art. 251 – 281, cf. also UfR 1998.800H, para 9.6.

The Danish Supreme Court has in UfR 1998.800H, para 9.5 and 9.7, recognized respectively the method of interpretation, cf. e.g. ECJ case C-22/70, AETR, and ECJ case C-428/02, Fonden Marselisborg Lystbådehavn, and the independent judicial policy-making/public legal policy within the framework of the treaty by the ECJ.

But the Danish Supreme Court has in UfR 1998.800H, para 9.6,3  last sentence, ruled that EU rules and EU principles, which are solely due to or solely based on ECJ case law,4 shall be annulled in Denmark in the extraordinary instance, where it with the necessary certainty can be proved, that they rest on an application of the treaty, which is outside or contrary to the submission of Danish sovereignty according to the Danish EU accession law.

Therefore, there is a conflict of competence between the ECJ and the Danish Supreme Court,5 since the ECJ has ruled that EU law has primacy effect to national constitutional law (e.g. the Danish Constitution), cf. ECJ case C-11/70, Internationale Handellsgesellschaft, para 3, and ECJ case C-399/11, Melloni, para 58, which is contrary to the ruled view of the Danish Supreme Court, cf. UfR 1998.800H, para 9.2 and 9.6. A similar conflict of competence between the ECJ and the European Court of Human Rights, cf. e.g. ECJ case C-84/95, Bosphorus, and ECHR in Bosphorus 30 June 2005, para 149 – 158,6 is now clarified or dealt with via art. 52, section 3, in the Charter on Fundamental Rights of the European Union.

However, this conflict of competence between the ECJ and the Danish Supreme Court does not alter that the ECJ in its application of law is under or confined to the treaty with protocols (TEU and TFEU) within the principle of conferred competences, cf. e.g. TEU art. 5, section 2, TEU art. 13, section 2, and TFEU art. 352, which is presupposed by the ECJ in its case law, cf. e.g. ECJ case C-110/99, Emsland-Stärke, para 56, cf. e.g. Statute of the European Court of Justice art. 24 – 26. This is also the legal view of the ECJ with regard to the other EU institutions, cf. e.g. ECJ case C-376/98, Germany against the Commission (illegal use of TFEU art. 114, cf. TEU art. 5, section 1 and 2).

The legal conception of necessary certainty in the Danish Supreme Court judgment UfR 1998.800, para 9.6, for annulment of EU law in Denmark is not further defined. But an example is that the ECJ under UfR 1998.800H and therewith the Danish Constitution cannot approve a legal custom/customary law that alters the treaty such as the so-called Luxembourg-accords from 1966 (each member state enjoys a veto under vital national interests), already for that reason such a state of law is outside the treaty or contra legem. Another example is that the ECJ cannot regulate the VAT burden/carry out material VAT regulation via e.g. public legal policy (principle of abuse), cf. UfR 1998.800H, para 9.2 (cannot submit competence contrary to the constitution itself without a constitutional amendment) and 9.6, cf. the Danish Constitution art. 43, first indent (no taxation without representation/statutory authority via special separation of powers), cf. e.g. ECJ case C-255/02, Halifax, para 93, cf. ECJ case C-110/99, Emsland-Stärke, para 56, cf. e.g. Statute of the European Court of Justice art. 24 – 26.

4. The ECJ’s application of legal sources to the derivation of the said general EU principle in ECJ case C-441/14, Ajos, e.g. para 22

“Silence in the face of evil is itself evil. God will not hold us guiltless. Not to speak is to speak. Not to act is to act.” 7

The Danish Supreme Court rules in UfR 2017.824H (Ajos case) that the general EU principle prohibiting discrimination on grounds of age was derived from legal sources outside the treaty, and that the said principle was not acceded to or encompassed by the relevant Danish EU accession law. The relevant Danish EU accession law was approved under article 19, section 1 of the Danish Constitution, cf. UfR 2013.1451H (Lisbon Treaty judgment), since no further legislative, executive and judicial competence from 1th December 2009 with direct primacy effect was given to EU under Danish law via the Lisbon Treaty. Already for that reason the application of law via a general principle by the ECJ would require an accession via a different procedure under art. 88 in the Danish Constitution (amendment of the constitution), cf. UfR 1998.800H, para 9.6. If not, the Danish Supreme Court would act outside its conferred competences as judicial power, cf. art. 3, 3th sentence in the Danish Constitution (the ordinary separation of powers) and the principle in UfR 1999.841H (the legislative power infringed the Danish constitution by also becoming the judicial power).

The same applied with regard to the use of article 21 in the Charter on Fundamental Rights of the European Union after the 1th December 2009 (entry into force of the Lisbon Treaty and the Charter on Fundamental Rights of the European Union), since the Danish EU accession law under article 19, section 1 of the Danish Constitution did not and could not include any direct effect and horizontal effect of the said article 21, and that derivation of law from TEU art. 6, section 3, after the 1th December 2009 does not have direct effect in Denmark, since the Danish EU accession law under article 19, section 1 of the Danish Constitution did not and could not include such a submission of judicial power to the ECJ.

An application of the said general EU principle prohibiting discrimination on grounds of age, etc., in Denmark would, therefore, constitute an infringement of art. 88 of the Danish Constitution, and the ECJ has according to the Danish Supreme Court infringed the treaty (currently TEU and TFEU), at least, before 1th December 2009, cf. e.g. TEU art. 5, section 2, TEU art. 13, section 2, and TFEU art. 352.

5.Conclusion

“Don’t fall apart on my tonight” 8

“Go, tell the Spartans, stranger passing by, that here, obedient to their laws, we lie”9

According to the treaty (TEU and TFEU) the ECJ is under the conferred competences in its application of law and can only lawfully function as judicial power via legal sources within the treaty, cf. also the Danish Supreme Court judgment UfR 1998.800H, para 9.2 and para 9.5 – 9.7.

The Danish Supreme Court rules in UfR 2017.824H (Ajos case) that the general EU principle prohibiting discrimination on grounds of age was derived from legal sources outside the treaty, and that the said principle was not acceded to or encompassed by the relevant Danish accession law. Already for that reason the application of law by the ECJ would require an accession via a different procedure under art. 88 in the Danish Constitution (amendment of the constitution), cf. UfR 1998.800H, para 9.6. If not the Danish Supreme Court would act outside its conferred competences as judicial power, cf. art. 3, 3th sentence in the Danish Constitution (the ordinary separation of powers) and the principle in UfR 1999.841H (the legislative power infringed the Danish Constitution by also becoming the judicial power).

The same applied with regard to the use of article 21 in the Charter on Fundamental Rights of the European Union after the 1th December 2009, since the Danish EU accession law under article 19, section 1 of the Danish Constitution did not and could not include any direct effect and horizontal effect of the said article 21, and that derivation of law from TEU art. 6, section 3, after the 1th December 2009 does not have direct effect in Denmark, since the Danish EU accession law under article 19, section 1 of the Danish Constitution did not and could not include such a submission of judicial power to the ECJ.

An application of the said general EU principle prohibiting discrimination on grounds of age, etc., in Denmark would, therefore, e.g. under the Danish EU accession law constitute an infringement of art. 88 of the Danish Constitution, and the ECJ has according to the Danish Supreme Court, at least, before 1th December 2009 infringed the treaty (currently TEU and TFEU), cf. e.g. TEU art. 5, section 2, TEU art. 13, section 2, and TFEU art. 352.

The Danish Supreme Court has with that legal reasoning obliged to article 64, section 1, 1st sentence of the Danish Constitution in UfR 2017.824H, and is, therefore, subordinate and obedient to the Danish Constitution with the catchphrase: I do not want to be Caliph instead of the Caliph or je ne veux pas étre calife á la place du calife. So between the ECJ and the Danish Supreme Court in the said conflict of competence it is really to be or not to be.

Therefore, the Danish courts do on the above-mentioned legal constitutional basis judicially review the European Court of Justice. One could consider the problem with conflict of competence between the ECJ and national supreme courts to be solved via the treaty as with art. 52, section 3, in the Charter on Fundamental Rights of the European Union.

And hopefully, the said Danish judges do not in a very present-day solely judicial sense end up as the immortal Spartans at Thermopylae.

1. The method of judicial review with one or multiple legal problems with partial conclusions and an overall conclusion is congruent with the method of judicial review in e.g. UfR 1998.800H (Maastricht case), U.2017.824H (Ajos case) and under TFEU art. 267, cf. e.g. ECJ case C-441/14, Ajos. 
2. See for legal inspiration with regard to the role of judges in former Czech President and author Václav Havel in The Power of The Powerless (1978), Charter 77, former Polish president Lech Walesa in A Way of Hope, 1990, the dissenting opinions of US Supreme Court President John Roberts and US Supreme Court judge Antonin Scalia in US Supreme Court’s judgment Obergefell v Hodges, US Supreme Court President John Roberts’ opinion in US Supreme Court’s judgment Horne v United States Department of Agriculture (clause 28 in Magna Charta – originalism in US constitutional law), dean at the University of Oslo Hans Petter Graver, Judges Against Justice – On Judges When the Rule of Law is Under Attack, Springer, and former High Court President (Western High Court) Bjarne Christensen, § 2, The ideas behind the structure of the judiciary, attorney Pernille Backhausen and others (eds.), The Procedure (Proceduren), 1th edition, DJØF Publishing, 2009.
3. See also the judgment published in UfR 1998.800H, para 9.4, third last section (terminal date in UfR 1998.800H for the judicial review of the application of TFEU art. 352 to the 1st January 1993).
4. It is not judicially reviewed by this author, from which legal sources the unwritten EU law is derived (the legal basis, i.e. statutory authority or legal authority), but the said EU law are maybe derived from the coherence of the treaty or treaties, cf. for a similar application of law in Denmark on a non-constitutional level in the judgment published UfR 1953.523/2H. Such legal methodology is very close to a doctrine of implied powers. Another possibility for legal basis in the said instances (including lack of) is the application of the legal source practical arguments outside the treaty, and from there derive the ability to create public legal policy. 
5. See for similar instances within Danish in U.1999.841H (the legislative power infringed the Danish Constitution) and in TfS 2015, 282 (the executive power and the judicial power infringed the Danish Constitution). See for somewhat similar constitutional conflict in ECJ case C-399/09, Landtová, and the Czech Constitutional Court’s decision Pl. ÚS 5/12.
6. See for the earlier conflicting state of law between ECJ and ECHR in TC Hartley, The Foundations of European Community Law, sixth edition, Oxford, 2007, p. 141 – 143. See for a similar problem of national Danish constitutional character in UfR 1999.1798H (the application of ECHR art. 11 for interpretation of the art. 79 in the Danish Constitution), which is due to an error in the written legal reasoning of the Danish Supreme Court or a misreading thereof, for which reason the said applied legal reasoning is not applicable law, cf. also e.g. art. 88 of the Danish Constitution, former Danish Supreme Court President Niels Pontoppidan in Weekendavisen den 28. juni 1996 (Danish newspaper), supreme court judge Jens Peter Christensen in an article (U.2013B.15) with the explanation: ”as a judge, one is often surprised, how a few words in a legal reasoning is understood”. However, this explanation is maybe in principle in its probable disguise of an error, in which he did not take part, similar to that of the otherwise very critical former Swedish supreme court judge Göran Lambertz in his book from 2015 ”Quickologi”. See also with regard to the question of the said error or misreading of a Danish Supreme Court judgment at professor Jens Elo Rytter in The Individual’s Basic Rights, 1st edition, 2013, Karnov Group, p. 97f (mentions another Danish Supreme Court judgment) and public hearing in the Danish Parliament the 11th October 2017 concerning case law from ECHR, cf. also video recording thereof at www.ft.dk. See also this author’s articles at www.ssrn.com and in TfS and SpO with proved thousands of wrong decisions and/or infringements of the Danish Constitution under Danish law already with regard to the application of legal sources or requirements by law for legal reasoning. Little has so far been done in this regard.
7. Dietrich Boenhoeffer, German priest, who e.g. lived in the Weimar Republic from 1930-1933 under the use of solely practice/practical arguments or provisional law as legal sources/law.
8. Bob Dylan, Don’t fall apart on my tonight, Infidels. Listen also to e.g. Bob Dylan, Tight Connection to My Heart (Has anybody seen my love), Empire Burlesque.
9. Epitaph on the Cenotaph of Thermopylae, recorded by Herodotus. See also for immortal heroes in the book Hell in a Very Small Place by Bernard B. Fall.

 

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