4 · THE POTENTIAL OF JUDICIAL PROACTIVITY

1.The picture of Nordic legal culture pained above is by necessity crude and perhaps also unfairly focused on what may be perceived as its shortcomings. Counterpoints can and should be offered. Fulfilling the double purpose of providing a more nuanced picture and demonstrating how a more harmonious integration of EU law within the Nordic legal orders may occur, this section will briefly examine an example of judicial creativity in the SSC.s. 226

2.In Fransson, the CJEU declared the Swedish practice of pursuing criminal charges in cases of fiscal offences where a tax surcharge had already been levied to be contrary to Article 50 CFR, leading the SSC to follow suit by reversing its previous case law. Predictably, this gave rise to numerous applications for relief from individuals having been previously subject to double sanctions. Considering whether it would be possible to reopen cases already finally decided in breach of Article 50 CFR, the SSC observed that, according to settled case law and established interpretation of the relevant national provision, the conditions for reopening were not met. Under either of the passivism approaches discussed in the previous subsection, this would have been the end of the matter. While the confrontative stance of Ajos would perhaps have been (more) difficult to defend in a vertical relationship, the Braathens approach of leaving to the legislature to provide for adequate relief would certainly have been available. Nevertheless, the SSC took a different course of action, stating that since it was a question of safeguarding rights guaranteed under European law, there may be reason to ‘modify, amend, or set aside’ national law. On this basis, the Court held that reopening of final decisions in some cases must be possible, notwithstanding the conditions laid down in national law. This would be the case especially where reopening would be necessary to stop an ongoing fundamental rights violation, or else where the rights violation had been of a particularly serious character and the reopening of the case appeared a considerably more appropriate form of compensation than other available options. In the case at hand, the Court found the criteria to be fulfilled, citing the fundamental nature of the ne bis in idem principle as well as the social stigma associated with a criminal conviction.s. 226

3.It is possible to find similar examples of proactive and systematic approaches in the other Nordic Member States. In Lady & Kid, which concerned an appeal against a lower court’s decision to refer questions to the CJEU for a preliminary ruling, the DSC observed that, according to the CJEU’s Cartesio case law, it was not prevented from hearing the appeal, but its ruling would not be binding on the lower court. It found this ‘difficult to reconcile’ with the Danish legal order, under which decisions made on appeal were as a rule binding on the lower court. Instead of creating a narrow exception to accommodate Cartesio, however, the DSC took a broader systematic outlook and ruled that appeals against decisions to request preliminary rulings would not be permissible at all. Mention may also be made of a 2018 judgment of the Supreme Court (Korkein oikeus) of Finland (FSC). The case concerned discrimination on the basis of obesity, which the FSC – having considered the CJEU’s case law on the definition of disability as a discrimination ground – classified as falling under the discrimination ground of health and therefore outside the scope of EU law. Nevertheless, the FSC observed that the case law of the CJEU could nevertheless be relevant as interpretation data for the national Equality Act, in order to ensure the a uniform meaning to the provisions governed by EU law, such as the burden of proof. It then proceeded to refer to judgments of the CJEU in its assessment of the justifications offered by the defendant.s. 227

4.This proactive approach in which the national courts using a creative balancing approach resolve problems themselves and in a generally applicable fashion rather than awaiting legislative intervention, is clearly different from the two cases discussed in the previous section. The prevalence of this kind of ‘soft’ europeanisation is hard to properly gauge, as it may also occur without explicit references to EU law. The rulings demonstrate the potential, (even) within the Nordic legal culture, of courts defining the impact of EU law within the Member States constructively and proactively in a way that integrates EU and national law in a systemic fashion. It remains to be seen whether this is a road that the Nordic courts will keep travelling down.s. 228