Shaky foundations

The case of Kücükdeveci (C-555/07), first reported on solicitorsjournal.com on 20 January 2010, may have profound significance, not only in the particular field with which it is concerned (age discrimination), but also in terms of how the direct effect and priority of Community law are understood.

In 1996, when Ms Kücükdeveci was 18, she obtained employment with a German company, Swedex. In 2006, Swedex dismissed her. For the purposes of calculating her notice period under German law, Swedex treated her as having been employed for three years, not ten. That was because under German law the period of employment before the age of 25 was to be disregarded. The effect was to curtail the notice period from four months to two. Proceedings wound their way through the German courts, with Ms Kücükdeveci arguing that the relevant provisions were in breach of the prohibition on age discrimination under EU law and in particular directive 2000/78.

So far as the substance is concerned, the ECJ held that the national legislation was to be analysed by reference to directive 2000/7; it was discriminatory on grounds of age; the discrimination was not justified.

The question of real interest in the judgment is: what is the consequence of that finding? Since Ms Kücükdeveci was employed by a private company, the directive could not be relied on as having horizontal direct effect (see the judgments in Case 152/84 Marshall [1986] ECR 273, which the ECJ has since affirmed on several occasions, and affirmed again). A national court should try to interpret national legislation, if possible, to give effect to Union law (Case C-106/89 Marleasing [1990] ECR I-4135). But that principle offered no foothold in Ms Kücükdeveci's case, because the national court had expressly found that the legislation was so clear and precise as to be incapable of interpretation in conformity with EC law.

One might think, then, that both the direct and the indirect route to giving the directive primacy over national law were cut off, and that the only possible result was for Ms Kücükdeveci to lose her case against Swedex, being left to bring (if she could) a claim for damages against Germany for failure to implement the directive properly.

Different direction

However, the ECJ struck out in a novel direction. It reasoned as follows: (1) the prohibition on discrimination in the directive 'gives expression to, but does not lay down, the principle of equal treatment in employment' and that 'the principle of non-discrimination on grounds of age is a general principle of European law in that it constitutes a specific application of the general principle of equal treatment'; (2) because it was applying a directive which 'gives expression to' such a general principle, the national court must 'provide, within the limits of its jurisdiction, the legal protection which individuals derive from European law'; and (3) accordingly the national court must 'decline to apply' a provision of national law which it considers to be 'incompatible with [the principle of non-discrimination on grounds of age] and which cannot be interpreted in conformity with that principle'. In other words: it must give effect to the directive, over contrary national law, even in a dispute between private persons.

This is hard to make sense of. It seems that the ECJ may be pursuing either of two different lines of reasoning '“ but neither seems orthodox or satisfactory.

The first possibility is that the ECJ considered that the Treaty contains a right not to be discriminated against on grounds of age which is itself directly effective. If that were so, it would be consistent with established case law to give the right horizontal direct effect. But that would normally be thought to apply only to a legal rule whose terms are such that they can be applied without any further legislative elaboration. Even if the principle of non-discrimination on grounds of age is properly treated as a 'general principle' of law, as the ECJ held in Case C-144/04 Mangold [2005] ECR I - 9981 '“ though on questionable grounds '“ it could hardly be said that it rests on any explicit legal formulation that is reasonably capable of independent application.

To treat a general principle of law, not explicitly formulated in the Treaty, as a source of directly effective rights is distinctly unorthodox. It raises significant questions about legal certainty: how are individuals to know what general principles give rise to directly effective rights? When, exactly, did discrimination on grounds of age become a breach of a (directly effective) general principle?

The second possibility is that the ECJ did not intend to give direct effect to thegeneral principle identified in Mangold as such, but considered that the general principle combined with the directive could have such effect. If so, it is in effect treating two sources of law which do not have direct effect as combining to create it. This seems unsatisfactory and unorthodox '“ indeed, on the face of it, inconsistent with Marshall, to which the same analysis, if it was sound, would have applied.

It might be said that the step the ECJ has taken in Kücükdeveci is not much of a step beyond Mangold. But even small steps sometimes require careful justification, especially if they are taken from a foundation which already looks shaky. If the absence of horizontal direct effect for directives is a problem, it seems unlikely that the approach taken in Kücükdeveci is a satisfactory solution.