Kucukdeveci – ECJ and age discrimination – expanding direct effect of directives to horizontal relations

Let me first quote the brilliant ‘Adjudicating Europe’ blog:

“The Court can be criticized (and it should very well be), but nobody can accuse it of being an irrelevant institution in the construction of a European Union. Read in that light, I say: Long live Kücükdeveci. And long live (very long, please) the European Court of Justice.”

Kucukdeveci is an important judgement, and it already caused a true avalanche of blog comments from various sources (see the very comprehensive review of the judgement and all comments on Julien Frisch’s blog).

The ECJ is developing its jurisprudence in the area of age discrimination; jurisprudence which is largely based on Articles 12 and 13 of the EC Treaty, and Directive 2000/78/EC on equal treatment in employment and occupation. Following cases such as Birgit Bartsch v Bosch, Palacios de la Villa, Age Concern England, or Mangold, it now dealt very firmly with discrimination because of ‘young age’ – at the same time breaking more than just one ‘barrier’ - some of them inherent in the very effects of EU law.

 Age discrimination can appear in different shapes and sizes. It is not always about ’ageism’ – which one would normally associate with discriminating people because of their ‘too old’ rather than ‘too young’ age. The German law with which Ms Kucukdeveci had a problem was blatantly refusing to allow people who worked before they reached the age of 25 to calculate this period of employment as part of the period which was the basis for calculating their notice period for dismissal. Ms Kucukdeveci worked for 10 years for her employer (since she was 18), but when she was dismissed she received notice the length of which corresponded to her working only for 3 years. 

While it is clear that the Equal Treatment Directive does allow Member States to establish certain limitations on equality because of age: for instance those relating to minimum hiring age or minimum experience allowed, the German law went slightly too far, as rightly confirmed by the ECJ.

The ECJ condemned the German law as being against the equality principle, and it also confirmed the principle of supremacy of EU law and its implications: the court considering the case was told to set aside the German law and apply the Directive instead. The problem was: the Directive was to be applied between two non-state entities (one individual, one firm) – so in a horizontal relationship!

Kucukvedeci is about so much more than age disrimination. It is also about the effect of directives containing fundamental principles of EU law (here – the concept of non-discrimination on the basis of age, also established by the Charter of Fundamental Rights which by the way the ECJ enforced retrospectively!). As we know, directives do not have horizontal direct effects. Or do they now? Here we are dealing with a Directive establishing a Fundamenal Principle of EU law, and this one WAS HELD TO BE DIRECTLY EFFECTIVE IN A HORIZONTAL SITUATION!

The implications of this judgement in a wider context are bound to be significant. There are, after all, many more Directives which establish Fundamental Rights (the one I can think off right now, as I just finished teaching it, is the Directive 2004/38 on freedom of movement of persons). ‘Adjudicating Europe’ mentioned the Data Protection Directive. Surely there are many more.

Sea-change if there ever was one!

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