Keeping Up Appearances - The Court of Justice and the Effects of EU Directives - Essay Example

? Despite the recent decision in (C-555/07) Kucukdeveci v Swedex GmbH & Co KG and the impact on age discrimination it remains unlikely that horizontal direct effect of directives will be accepted by the ECJ. Critically discuss. Statement of Objectives The case Seda Kucukdeveci v Swedex GmbH & Co KG 1dealt about whether German Civil Code provisions regarding age for employment matters are attuned with “EU’s Employment Equality Directive” or not as EU directive bar prejudice in occupation and employment on the basis of age. In the above case, ECJ was asked to corroborate the following; Whether it is justifiable to give a longer period of notice for those who have put in long years of service? Whether the exclusion of service rendered before attaining the age of 25 is incompatible with EU Directive 2000/78/EC. Whether it is justified for not offering the longer period of notice for younger people as compared with employees with longer service. ECJ was asked to examine whether such practices constitute discrimination barred by the EU Directive. (EADLR 2010:35). Identification of Theoretical Position or Integrated Perspective anchoring In Seda Kucukdeveci, ECJ held that German national laws offer a difference of treatment between employees with the similar length of services , footing on the age of their entry into service.ECJ was of the view that this Germany law impacted young employees badly and hence the court concluded that Germany should ensure the notion of non-discrimination on the footing of age is observed with ,hence the national legislation which differentiates senior employees and junior employees as regards to length notice of severance of service is incompatible with EU Directive. Earlier in many occasions, EU has initiated action against various member nations whose national legislation was not compatible with the “EU Employment Equality Directive 2000/78/EC.” Earlier, EU decided to close the case against Finland and Austria after their initiation and complete and correct implementation of EU rules to fall in compatible with “EU Directive 2000/78/EC.” In Mangold v Helm2, it was acknowledged by ECJ that there prevailed a principle of non-discrimination on the basis of age, which must be construed as a general principle of EU law. (Westlaw 2010:1). ECJ has held that under Article 21 (1) of the Charter, “any prejudice based on ---- age “shall be proscribed.” (Denman 2010:10). Contribution of this essay to the area of law This essay will bring more awareness to all EU nations that there should not be any discrimination on the basis of age. Equal treatment should be given to all employees irrespective of their length of service so that their fundamental rights are safeguarded. Description of research literature citing sources Thus, EU directive 2000/78 says that no discrimination should be shown on the basis of age in employment, and it overrides any national provision in contrary to that principle. (Westlaw 2010:1). ECJ was of the view that German law offered unfavourable treatment to employees who assumed service before the age of 25. Though , the objectives of the German rule belonged to their labour and employment market policy and might be having legitimate goals , the ECJ was of the view that the rule was neither necessary nor appropriate in accomplishing them. (Westlaw 2010:2). Steve Peers (2010) cites the ECJ’s verdict in Bartsch in which it held that the general principle of age discrimination can only be extended where there was an enough association to EU legislation. Luca Paladini (2010) expresses that in Seda Kucukdeveci case and in Detieek3case, the facts happened before entry into force of Lisbon Treaty and hence , these references could corroborate that as per CILFIT (CILFIT Srl vMinistero della Sanita4, ECJ viewed the principle of non-discrimination on the footing of age. Craig and Burca argue that in Mangold, a case which resembles the expansive approach of P v S to the notion of equal treatment in employment, the ECJ held that despite the phase for transposing the Structure of Employment Directive into national law had not concluded, the common standard of equal treatment in EU law barred a national initiative from prejudicing capriciously on the basis of age. (Craig & Paul 2008:411). Seda Kucukdeveci case and other cases on the subject have been an eye opener to many member states in EU. Many member states in EU has adopted the “EU Employment Equality Directive 2000/78/EC” in their national law so as to avoid any conflict in the future. For instance, Norway has no legislation that especially bar age discrimination in employment. However, the Norway government has chosen to follow the particular provisions of the EU directive 2000/78/EC pertaining anti-discrimination legislation and an act had been passed by Norwegian Parliament, and hence the directive had been introduced in Norway's law in line with the EU’s agenda. (OCDE 2004:85). How this adds to current research Albors and Llorens were of the view that the verdict in Kucukdeveci case shows that the ECJ will continue in its contention that directives cannot create horizontal direct impacts even if the outcomes of the case produce the opposite conclusion. Unlike Mangold, in the Kucukdeveci case, the cut-off date for implementation of directive had now run out, and Germany had enforced the directive –although wrongly. Thus, the Court first re-confirmed that it cannot generate horizontal direct effects. Nonetheless, this was not achievable as German legislation was unequivocal and hence not possible to have a reading in tune with the directive. Hence, it ruled that contradictory national law must to be disapplied. (Albors-Llorens 2010:2). In Kucukdeveci case, ECJ permitted the appellant to rely on the appropriate proviso of the EU directive since that provision contained one of the basic standards of EC law: the ban of prejudice on the footing of age. This was the ground why that EU provision had become horizontally directly effective. When national law has no provision to safeguard the interest of the appellant, then the EC law should intervene. Finally, the appellant was permitted to rely on a provision of the Directive in proceedings to safeguard his interest from the defendant. (Kaczorowska 2008: 325). As far as the impact on age discrimination is concerned, it remains unlikely that horizontal direct effect of directives will be accepted by the ECJ in future cases, as all the member nations had implemented the EU directive 2000/78/EC in their national law as of now as EU had initiated legal actions for not adhering to the above directive against some member nations and this had compelled them to implement the directive in their national laws. It is to be noted that EU decided to close the case against Finland and Austria after their initiation their complete and correct implementation of EU rules to fall in compatible with “EU Directive 2000/78/EC.” The Kucukdeveci verdict exhibits that Mangold is very much active. It confirms that it is not relevant that the final date for introduction of a directive has not run out, that the directive has not been introduced within the deadline, or that it has not been introduced correctly. Thus, the doctrine of non-discrimination on the footing of age given expression by an EU directive can still be applicable in legal actions between private parties to prohibit differing national legislation, and it can be realistically anticipated that similar finding will apply when other normal doctrines are at stake. This approach evidently augments the efficacy of EU directives, but it is at conflict with the verdict that there exists no horizontal direct impact for directives. Firstly, it results in the infliction of duties on private parties and secondly, it ushers additional legal vagueness by adhering by adding of another sidestepping mechanism – this time with a very poignant potential – available to any appellant who is unable to depend upon the direct impacts of directives. To encourage efficacy might be welcome but to act that the doctrine of non-horizontal impact of directives still persists when it has been so seriously smashed appears flawed.(Albors-Llorens 2010:2). List of References Albors, Albertina & Llorens. (2010). Keeping Up Appearances. The Court of Justice and the Effects of EU Directives. [online] available from < www.westlaw.uk> [accessed 27 January 2010] Craig, Paul P & Burca, Grainne De. (2008). EU Text, Cases and Materials. Oxford: Oxford University Press Denman, Daniel. (2010). The Charter of Fundamental Rights [online] available from < www.westlaw.uk> [accessed 27 January 2010] EADLR. (2010). Seda Kucukdeveci v Swedex GmbH & Co KG. European Anti-Discrimination Law Review Issue 9, 35-39 Kaczorowska, Alina. (2008). European Union Law. London: Taylor & Francis Organisacion de Cooperacion y Desarrollo Economisco. (OCDE). (2004). Norway. Manila: OECD Publishing Paladani, Luca. (2010). Kucukdeveci v Swedex GmbH & Co KG (C-555/07): court reaffirms primacy of EU law. [online] available from < www.westlaw.uk> [accessed 27 January 2010] Peers, Steve. (2010). Non-Regression Clauses: the Fig Leaf has fallen. [online] available from [accessed 27 January 2010] West law. (2010). EU Focus: Case Comment: Seda Kucukdeveci v Swedex GmbH & Co KG [online] available from < www.westlaw.uk> [accessed 27 January 2010] Whittle Richard & Bell Mark. (2002). Between Social Policy and Union Citizenship: the Framework Directive on Equal Treatment in Employment. European Law Review Vol 27(6) 677-691 Read More