The European Court of Justice (ECJ) has been characterized as a powerful institution, marked by ‘judicial activism’ (Dawson et al., 2013) and increasingly engaged with the field of fundamental rights. Processes of judicialization of politics, strengthening the power of the courts and the importance of judicial processes over political ones, have become ever more visible. Gender equality was a topic that was subject to the activism of the ECJ from early on.
At the national level, the interpretations of the ECJ in relation to policies and legislation clashes with the legal traditions in some member states. This is the case of Denmark (and the other Nordic countries) which is characterized by legal positivism, and courts are considered to be neutral in their interpretation of the motivations of the legal acts and the work of the legislators. Thus controversies over judicial review, for instance in cases regarding immigration and social rights, have proliferated.
This paper analyzes how differences in legal traditions affect the reference to the ECJ by national courts and governments. We focus on Danish governments’ strategies towards the ECJ within the field of gender equality policies. Historically the ECJ played a crucial role in the Europeanization of gender equality policies, for instance as concerns equal pay. The paper asks how, when and with which results Danish governments have tried to influence ECJ case law by submitting opinions on prejudicial cases, and how and to which degree case law of the ECJ is implemented in Danish legislation. The paper focuses on the framing of the arguments in the opinions and the development of governmental strategies in order to identify shifts in the use of the court over time, thus leading to a discussion of the overall balance between the political system and the courts, i.e. processes of judicialization.
