4.2.7 Something rotten in the State of Denmark? The ruling of the Højesteret

194. In Dansk Industri the Court of Justice clarified that Union law precludes a national court from relying on the principle of protection of legitimate expectations of a private party that relied on the applicability of a national provision that is incompatible with the prohibition of age discrimination in order to continue to apply that particular provision to the detriment of the discriminated party. Back in Denmark, the Højesteret refused to give effect to the ruling of the Court of Justice.2 On 6 December 2016 the Højesteret delivered its final ruling in the case, in which it holds inter alia3 that the effect that the Court of Justice has awarded to the general principle of the prohibition of age discrimination is not regulated in the Danish Law on Accession.4 The fact that this principle is now codified in Article 21 of the Charter is immaterial to the Højesteret, because the Charter does not expand the competences of the Union and hence cannot modify the effect of general principles of Union law.5 Lastly, the Højesteret states: “The Supreme Court would be acting outside the scope of its powers as a judicial authority if it were to disapply the provision in this situation”.6 From the ruling of the Højesteret it becomes clear that the so-called Mangold-route is inapplicable in Denmark. In an obiter dictum the Højesteret declared that the same applies to all Charter provisions.7 The Højesteret continued to apply the provision in Danish law that is incompatible with the principle prohibiting age discrimination and, as a result, Dansk Industri – as the successor of Ajos – did not have to pay a severance pay to the heirs of Rasmussen.8

195. On a side note: after the Court of Justice’s ruling in Ingeniérforegingen i Danmark the Danish legislature amended the problematic provision in Danish law. However, the amended provision applies only to situations arising after 1 February 2015.9 As a consequence, the claim of Rasmussen falls outside the scope of application of the amended law.