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Kücükdeveci v Swedex GmbH & Co KG

European Court of Justice, January 2010

The European Court of Justice said in this very important case that the Framework Employment Directive gives expression to a general non-discrimination principle in European Union law, and can be applied by national courts to override national legislation more than previously thought.

German legislation lays down a minimum period of notice for dismissal, based on period of service. However, years worked before the age of 25 were excluded in calculating the minimum period of notice. The claimant was dismissed aged 28, having been employed since the age of 18. Under the legislation her minimum notice was calculated based on 3 years service rather than 10 years. She argued that this was illegal age discrimination.

Held by the European Court of Justice (Grand Chamber):

The case had to be decided under primary European Union law rather than the Framework Employment Directive as such. The European Court had acknowledged the existence of a principle of non-discrimination on grounds of age which must be regarded as a general principle of European Union law. The Framework Employment Directive gives expression to that principle - the directive does not itself lay down the principle of equal treatment in the field of employment and occupation.

Looking at the directive, the European Court considered that the German legislation in this case constituted unjustified age discrimination which was illegal.

The German court had said that the German law could not be interpreted so as to comply with the directive. Also the directive did not have 'direct effect' because the employer was not a public authority. It might therefore be expected that the German court could not override the German legislation when deciding the case before it.

However, the European Court pointed out again that the directive simply gave expression to a general principle of European Union law. That being so, said the Court, it was

"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 full judgment is available on the European Court website.

My comments

There is every likelihood that the principle of this case will apply to disability discrimination as well as age. (See comment by the Court of Appeal in X v Mid Sussex Citizens Advice Bureau).

The case is very important in that it seems to extend the ability of national courts to - in effect - directly apply the Framework Employment Directive to individuals and private sector companies, where the directive has not been properly implemented by national law.

Directives are not designed to be applied by national courts, but states which are members of the EU are obliged to bring in national legislation to put them into effect. The national court then applies the national legislation. Even so, it has been established before that, where possible, a national court must interpret national law so as to comply with a directive. Here that was not possible because the German statute was clear. Furthermore, it has been established before that a directive which is sufficiently clear can be given "direct effect" against a public authority by the national court - but the employer in this case was private sector. A private person or company may also have a Francovich claim against a state for compensation for failure to implement a directive, but that is different to the question of whether a national court can override a national law in the case before it.

The European Court now seems to be saying that where, as here, the directive is giving effect to a general principle of European Union law, the national court, must if need be, disapply any provision of national legislation so as to give effect to the EU law. This applies even in the case of a private sector employer where national law cannot be re-interpreted. It seems that the national court does this through being bound by and applying primary European Union law, the non-discrimination principle to which the directive gives expression, rather than by applying the directive as a directive.

The European Court said that for the EU law principle of non-discrimation to apply, the case must fall within the scope of European Union law. This case did fall within that scope - from December 2006 when the Framework Employment Directive had to complied with in Germany, the directive had brought the German legislation within the scope of EU law.

The European Court cites the Charter of Fundamental Rights in support of its decision. The Lisbon Treaty made the Charter legally binding from December 2009, but Britain obtained a written guarantee which was intended to mean that the Charter could not alter British labour law. However, this case related to a dismissal that happened before the Charter became legally binding. Also, the Charter was just part of the Court's argument. It seems somewhat unlikely that the written guarantee obtained by Britain about the effect of the Charter would alter the impact of this case in Britain.

This implications of this case and any limitations will doubtless be further worked out in future cases.

There are many blog and other comments online about the case. A brief one with a link to a few more is: Kucukdeveci – ECJ and age discrimination – expanding direct effect of directives to horizontal relations (link to ecjwatch.com).


Framework Employment Directive: Where UK law is inconsistent, what happens?

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Last updated 25th July, 2010