1 · INTRODUCTION

1.When the Swedish Supreme Court (Högsta domstolen, SSC) received an answer to its request for a preliminary ruling from the EU Court of Justice (CJEU) in C-30/19 Braathens, it was faced with a problem very similar to that encountered five years earlier by the Danish Supreme Court (DSC) in the (in)famous C-441/14 Ajos case. Like its Danish counterpart, it had been advised that national legislation was contrary to an EU anti-discrimination directive. It had been reassured, as the CJEU had previously reassured the DSC, that directives do not take direct effect in disputes between individuals. Nevertheless, it had been informed, as the Danish court had before it, that the directive in question was merely a specific expression of a general principle of law, and that the latter was capable of producing effects between individuals.s. 215

2.While the problems faced by the two Supreme Courts were similar, the solutions adapted were different. The DSC, as is well known, gave a ruling that caused shock waves through the European legal community, refusing to accede to the supremacy to EU law. The SSC, on the other hand, avoided to take a stand on the relationship between national and EU law, merely observing that the CJEU’s ruling gave rise to ‘questions’, which would be best answered by the legislature. As far as known, this ruling failed to cause a stir even in narrow Swedish legislative circles.s. 216

3.This article argues that, albeit highly dissimilar in terms of controversy, the responses of the Danish and Swedish Supreme Courts are both expressions of an attitude that will be termed judicial passivism. Following Goldner Lang, the article understands judicial passivism as a form of judicial activism, whereby the judiciary takes an ideological position not through overreach but by underreach. More broadly, it argues that this attitude is in line with the approach of Nordic courts more generally in the preliminary reference procedure.s. 216

4.In support of these arguments, the article seeks to pinpoint the way in which Nordic judicial traditions manifest themselves in the Nordic courts’ application of EU law and in particular in their approach to the preliminary reference procedure. Relying on examples of EU law cases referred by Nordic courts, underpinned by findings from systematic empirical data analysis, it describes the characteristic traits of preliminary references from Nordic courts, demonstrating that Nordic courts bolster the position of the national legislatures while minimalising their own agency (section 2). Against this background, the article examines the orders for reference and the final rulings in Ajos and Braathens through the lens of judicial passivism, explaining the difference in approach by reference to the distincition between broad-sense and narrow-sense passivism (section 3). Finally, this attitude is contrasted with arguably less representative cases of judicial proactivity (section 4). The article concludes by a discussion on the effects of judicial passivism on the reception of EU law in the Nordic legal orders (section 5).s. 216