Judicial dialogue à la Nordique: Predominant passivism and sporadic proactivism in the preliminary reference procedure

Traditionally loyal to the legislature, Nordic courts are well known for keeping a low profile. This culture has largely withstood, albeit not unshaken, the introduction of European law into the domestic legal orders. Comparing the well-known ruling of the Danish Supreme Court in Ajos to the less controversial decision delivered by the Swedish Supreme Court under similar circumstances in Braathens, this article argues that both rulings can be understood as expressions of judicial passivism – a form of judicial activism characterised by underreach or excessive conservatism. The article further demonstrates that passivism is well in line with the Nordic courts’ attitude to the preliminary reference procedure more generally, where they tend to bolster the position of the national legislatures while minimalising their own agency. Examples of a more proactive approach can however be found in the case law of the supreme courts of all three Nordic Member States. As the judicial culture is slowly changing, such cases may become more prevalent.