Deference to the Administration in Judicial Review in Denmark

In a doctoral thesis from 1969, ”Øvrighedsmyndighedens grænser” [The Limits of Administrative Power], Ole Krarup argued against the distinction between free discretion and legal requirements. The distinction has, however, been withheld by the Danish Supreme Court in a number of cases.

Or obvious unfairness.

Sørensen “Kan domstolene efterprøve forvaltningens skønsmæssige afgørelser” [Can the courts review the discretionary decisions of the administration], published in The Danish Weekly Law Report 1950B. pp. 273 ff.

A General clause can be seen as a statutory provision, which is structured such that its legal effects occur when certain generally formulated conditions are met. Such a legal formulation is usually due to the desire to allow a judicial area to develop in harmony with the patterns of trade that unfold in the area in question. General clauses are therefore used most often in areas with voluntary industry regulation or administrative practice, or where there is a possibility that practices can be clarified due to frequent litigation. Garde and Hansen-Jensen compares the principle of manifest wrong decision making to the General Clause in art. 36 of the Danish Act on Contracts which states that a contract may be set aside by the court if it is unreasonable or against common trade practice to invoke the law, cf. The Lawyer (in Danish Juristen) 2009, p. 66.

See The Danish Weekly Law Report 1999 pp. 614.

Published in The Danish Weekly Law Report 1995 pp. 495 ff.

Published in The Danish Weekly Law Report 2006 pp. 681 ff.