Explaining paradigm shifts in Danish anti-discrimination law
| Author | Jeffrey Miller |
| Published date | 01 August 2019 |
| DOI | 10.1177/1023263X19863240 |
| Date | 01 August 2019 |
| Subject Matter | Articles |
Article
Explaining paradigm shifts in
Danish anti-discrimination law
Jeffrey Miller*
Abstract
The past three decades have witnessed dramatic transformations in Danish anti-discrimination
law. Multiple methodologies—from semi-structured interviews and contemporary newspaper
articles to empirical analyses of new datasets—are employed to elucidate how and why these
shifts occurred. The analysis focuses on the agency of a small group of well-funded and
sophisticated legal actors, who first harnessed the power of the preliminary reference procedure
to advance gender discrimination claims in the 1980s and 1990s. This strategy was repeated—
successfully—when Denmark adopted disability rights legislation for the first time in the 2000s.
The present article builds—and offers a fresh perspective—on existing literature that investi-
gates where, why and how Member State courts engage with EU law and the preliminary ref-
erence procedure.
Keywords
Danish Law, disability rights, equality law, European Union law, preliminary reference procedure
1. Introduction
The past three decades have witnessed dramatic transformations in Danish anti-discrimination law.
In the field of gender anti-discrimination, there has been a marked shift from an informal, hier-
archical collective bargaining system to a new paradigm that takes EU law, Danish law, and
recourse to the Court of Justice of the European Union (CJEU) much more seriously. In the area
of disability rights law, Danish courts and tribunals have shifted from a rights-sceptical to a rights-
affirming jurisprudence in a remarkably brief period of time. This article seeks to explain why and
how these changes have occurred, and more generally, to contribute to a growing body of literature
from political science, sociology and law that examines the conditions under which Member State
* PhD Candidate in Law, European University Institute, Florence, Italy
Corresponding author:
Jeffrey Miller, European University Institute, Villa Salviati, Via Bolognese 156, 50139 Firenze, Italy.
E-mail: Jeffrey.Miller@eui.eu
Maastricht Journal of European and
Comparative Law
2019, Vol. 26(4) 540–557
ªThe Author(s) 2019
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DOI: 10.1177/1023263X19863240
maastrichtjournal.sagepub.com
MJ
MJ
courts refer questions to the CJEU pursuant to Article 267 of the Treaty on the Functioning of the
European Union (TFEU).
1
In this article, I argue that the transformations in Danish anti-discrimination law that we observe
today are part of a broader movement that started with trade union-sponsored litigation in the late
1980s. At that time, trade unions successfully led the charge for preliminary references to the
CJEU in the field of equal pay for men and women. In 2013, trade unions repeated their strategy to
support disabled workers, and in doing so, again significantly altered Danish anti-discrimination
jurisprudence.
To use the terminology of social science, Danfoss,
2
a seminal gender discrimination case on
equal pay, and Ring/Werge,
3
the leading CJEU judgment on disability discrimination, constitute
critical junctures in the trajectory of Danish anti-discrimination law.
4
Mahoney defines critical junctures as: ‘choice points when a particular option is adopted among
two or more alternatives’.
5
He continues:
In many cases, critical junctures are moments of relative structural indeterminism when willful actors
shape outcomes in a more voluntaristic fashion than normal circumstances permit (...) these choices
demonstrate the power of agency by revealing how long-term development patterns can hinge on
distant actor decisions of the past.
6
HK Danmark (hereafter ‘HK’), a Danish trade union, is a paradigmatic example of Mahoney’s
‘willful actor’—a stakeholder with the desire and ability to change the rules of the game. Maho-
ney’s ‘moment[s] of relative structural indeterminism’ are closely linked to periods during which
the transposition of EU directives disrupted traditional patterns of legal behaviour. The first
notable moment occurred in the late 1980’s when, pursuant to its obligations under Directive
1. Some of the best-known works in the field include:K.J. Alter, Establishing the Supremacy of European Law: The
Making of an International Rule of Law in Europe. (Oxford University Press, 2010); A.-M. Burley and W. Mattli,
‘Europe Before the Court’, 47 International Organization (1993), p. 41–76; A. S. Sweet and T.L. Brunell, The Judicial
Construction of Europe (Oxford University Press, 2004); J.H.H. Weiler, ‘The Transformation of Europe’, 100 Yale Law
Review (1991), p. 2403–2483. For research on Denmark specifically, see J.E. Rytter and M. Wind, ‘In Need of Jur-
istocracy? The Silence of Denmark in the Development of European Legal Norms’, 9 International Journal of Con-
stitutional Law (2011), p. 470-504; M. Wind, ‘The Nordics, the EU and the Reluctance towards Supranational Judicial
Review’, 48 Journal of Common Market Studies (2010), p. 1039-1063; M. Wind et al., ‘The Uneven Legal Push for
Europe: Questioning Variation When National Courts Go to Europe’, 10 European Union Politics (2009), p. 63-88; A.
Follesdal and M. Wind, ‘Nordic Reluctance towards Judicial Review under Siege’, 27 Nordisk Tidsskrift for Men-
neskerettigheter (2009), p. 131-141; A. Atanasova and J. Miller, ‘Collective Actors and EU Anti-Discrimination Law in
Denmark’, in E. Muir (ed.), How EU law shapes opportunities for preliminary references on fundamental rights:
discrimination, data protection and asylum (EUI Law Working Paper, 2017/17).
2. Case C-109/88 Handels- og Kontorfunktionærernes Forbund I Danmark v. Dansk Arbejdsgiverforening, acting on
behalf of Danfoss, EU:C:1989:383 (Danfoss).
3. Joined Cases C-335/1 and C-337/11 HK Danmark, acting on behalf of Jette Ring v. Dansk almennyttigt Boligselskaband
and HK Danmark, acting on behalf of Lone Skouboe Werge v. Dansk Arbejdsgiverforening, acting on behalf of Pro
Display A/S, EU:C:2013:222 (Ring/Werge).
4. Critical juncture research focuses on ‘‘‘distal historical causation’’: events and developments in the distant past, gen-
erally concentrated in a relatively short period, that have a crucial impact on outcomes later in time.’ See G. Capoccia,
‘Critical Junctures’, in O. Fioretos (ed.), The Oxford Handbook of Historical Institutionalism (Oxford, 2016), p. 89.
5. J. Mahoney, The Legacies of Liberalism: Path Dependence and Political Regimes in Central America (JHU Press,
2001), p. 6; see also J. Mahoney, ‘Path Dependence in Historical Sociology’, 29 Theory and Society (2000), p. 507-548.
6. J. Mahoney, The Legacies of Liberalism,p.7.
Miller 541
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