ECJ once again on the principle of non-discrimation on grounds of age

by Koen Nevens

1. In the recent Kücükdeveci-case (C-555/07) the European Court of Justice reaffirmed the existence of the principle of non-discrimination on grounds of age as a general principle of European Union law, and ruled that article 622 of the German Civil code is not in conformity with that principle as given expression by Council Directive n°. 2000/78 establishing a general framework for equal treatment in employment and occupation. The aforementioned article of the German Civil code provides that the length of an employee's periode of notice varies upon the length of employment, and especially states that periods prior to the completion of the employee’s 25th year of age should not be taken into account in calculating the length of employment.

The decision of the ECJ comes as no surprise as Advocate General Bot had already advised the Court that it was difficult to identify a legitimate objective justifying periods of employment completed before the age of 25 not being taken into account. While the Advocate General doubted that the German legislators' aim to grant flexibility to employers (id est alleviating the burden on employers in respect of the dismissal of young workers) could constitute a legitimate objective in itself, the ECJ noted that the article in question is not appropriate for achieving that aim, since it applies to all employees who joined the undertaking before the age of 25, whatever their age at the time of dismissal. In other words, the measure spills over to other workers than young workers.

The Advocate General also disagreed with the German government's view that young workers react more easily and quickly than other workers to the loss of their job. However, the Advocate General acknowledged that "strengthened protection of dismissed workers on the basis of the time they have spent in the undertaking can (...) be regarded as seeking to achieve an employment policy and labour market objective within the meaning of Article 6(1) of Directive 2000/78." The ECJ doesn't express an opinion on the (un)truth of the German government's contention and seems to agree with the Advocate General, but highlights that the extension of the notice period for dismissal according to the employee’s seniority in service is delayed for employees who joined the undertaking before the age of 25, even if the person concerned has a long length of service in the undertaking at the time of dismissal, a lenght of service which might be comparable to that of another employee who joined the undertaking after the age of 25. The Court refuses to accept that two workers with the same lenght of service would be entitled to a different notice period, merely because one was recruited before a certain age and the other was not.

2. In its judgment the ECJ also reaffirms the much criticized Mangold-ruling. In Mangold the Court ruled that it is for the national court, hearing a dispute involving the principle of non-discrimination on grounds of age as given expression in Directive 2000/78, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from European Union law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle. The particularity of the Mangold-case (C-144/04) was that the implementation period for the Directive had not yet lapsed for Germany (see J.H. Jans, "The Effect in National Legal Systems of the Prohibition of Discrimination on Grounds of Age as a General Principle of Community Law" and D. Wyatt, "Horizontal Effect of Fundamental Freedoms and the Right to Equality after Viking and Mangold, and the Implications for Community Competence", both downloadable from ssrn.com, for a discussion of this case) .

The Court adds to that that "(t)he need to ensure the full effectiveness of the principle of non-discrimination on grounds of age, as given expression in Directive 2000/78, means that the national court, faced with a national provision falling within the scope of European Union law which it considers to be incompatible with that principle, and which cannot be interpreted in conformity with that principle, must decline to apply that provision". The German national court had indeed wondered what to do as article 622 of the German civil code leaves no room for an interpretation in conformity with the Directive, while national law apparently does not allow a provision of law to be disapplied, unless that provision has first been declared unconstitutional by the Bundesverfassungsgericht (Federal Constitutional Court).

Finally, the ECJ reiterates the primacy of European Union law and clarifies that a national court does not necessarily need to ask the ECJ for a preliminary ruling before disapplying the national provision that is contrary to European Union law. As the Advocate General noted: "(i)t has been clear since the Simmenthal judgment of 9 March 1978 that national courts, as the courts of general jurisdiction in Community law, must apply Community law in its entirety and protect rights which the latter confers on individuals by setting aside any provision of national law which conflicts with Community law. That duty imposed on national courts to set aside national provisions which impede the full effectiveness of Community rules is in no way subject to making a prior reference to the Court for a preliminary ruling, since such a requirement would, in most cases, transform the possibility of making a reference available to national courts under the second paragraph of Article 234 EC into a general obligation to refer."