The Legal Contexts of European Union - Essay Example

?Legal Contexts Introduction: Under normal circumstances, European Union (EU) laws gain precedence over national laws and could be enforced in certain situations when national laws are silent, or in conflict with the EU laws. A similar situation has arisen in Seda Kucukdeveci v Swedex GmbH & Co. KG Case C-555/07 which invoked the provisions of EC Directive 2000/78/EC that upholds non discrimination in matters of age in employment issues and prescribes equal treatment across all age groups in employment and occupation matters. Issues: A working lady by the name of Seda Kucukdeveci has been employed by Swedex GmbH since 4th June 1996, when she was just 18 years of age. The company terminated her services on 19 December 2006, providing her with a notice period up to 31 January 2007, calculating the period of service as 3 years, that is the computation period commencing from the time she was 25 years of age. The company ignored her pleas that she was serving the company for period of 10 years that is, since December 2006, and thus her notice period should have been four months and not over one month as provided to her in her termination notice. Aggrieved, the petitioner took up this matter with Labour Court on the grounds that the subject clause in German Civil Code (BGB) which denies credit for the period below 25th year of service validity was void and “Paragraph 622(2) of the BGB is a measure which discriminates on grounds of age, contrary to European Union law, and must be disapplied.”1 Laws: There were two main questions that need to be answered in this case. The first question would be in terms of whether national legislation such as that at issue, under which periods of employment completed by the employee before reaching the age of 25, which was not taken into consideration in calculating notice period for dismissal, constitutes a difference of treatment on grounds of age prohibited by European Union law, with special reference to EC Directive 2000/78/EC. The second question was whether it was fair on the part of the employers to allow just a base date computation of notice period in the event of termination of services of employees, thus drawing a line of discrimination, or distinction between older employees who would have higher notice period as compared to younger employees who had just lower notice periods, that is which begun from the base age of 25 years. The main contention in the reckoning would be “Thus in the case of two employees each with 20 years’ seniority in service, the one who joined the undertaking at the age of 18 will be entitled to a notice period of five months, whereas the period will be seven months for the one who joined at the age of 25. … the situation of Ms Kucukdeveci shows – may, despite several years’ seniority in service in the undertaking, be excluded from benefiting from the progressive extension of notice periods in the case of dismissal according to the length of the employment relationship, from which older workers of comparable seniority will, by contrast, be able to benefit.” 2 Prima facie, there does seem to be a case of discrimination favouring older employees who have joined work after the age of 25 years who would thus be entitled to a longer notice period as discriminated with younger employees who had started work at less than 25 years, say as apprentices, trainees or probationers. In their case, the work put on by them when they were less than 25 years does not seem to gain the favour of the management in terms of its corresponding effect on notice period. This kind of discrimination, apparently has been discussed under the provisions of EC Directive 2000/78/EC which considers employment and working environment including pay and dismissal issues, and also exhorts for equal and non discriminative rules without any kind of prejudices based on age, gender, colour, sexual preferences or religion and is applicable with equal force both in the public and private sectors for paid as well as well as nonpaid work. The preponderance of EU Directives over national or domestic laws are important, especially in this context, since this law relating to 25 years being the baseline year had been drawn up way back in 1928 in order to address prevailing issues as to seniority and length of service in employment matters. In its current context, it does seen that this rule is much extinct and very much out of place in current 21st century commercial practices. Moreover, it is seen in this case scenario that an individual has been placed in discrimination over other colleagues in the matter of notice period on the only premise that she had begun duties before she was 25 years of age. Perhaps at that time, it would not have struck her, nor the management that this would be a bone of contention at a later time. Moreover, when the period below 25 years is not taken into account, in real terms, it encourages the fact that people would star their work careers only by the age of 25 years and not before it, which is indeed a fatal flaw that does need to be repealed without any kind of hesitation or vacillation. Moreover, it is seen in this case that the ruling of the lower Courts staying the order is also in direct confrontation of the ideals of the EC Directives, especially that of ECD 2000/78/EC which directly deals with issues of this kind. There could be counter arguments in this case too, in terms of the fact that national laws need to be honoured and that industry or enterprise specific laws could bring in laws that are specific to the needs of the business and the way it should be carried out. It would be rather injudicious for European Parliament to interfere or encroach a matter of national policy or industry practices, much less provide solutions for this kind of vexatious issues that seem to defy solutions on their own. But the fact remains that violation of human rights and the enforcement of obnoxious laws to suit individual business is not a state or national issue – rather it is a global issue which needs to be addressed in an international forum. Besides, the countries in whose soil such flagrant violations of basic employment laws have taken place are themselves prominent members of the European Commission and the laws could be enforced on them, just as it could be enforced on any other Member State. Conclusions: Under these circumstances, it was held that was indeed within the ambit of National Courts to provide the legal cloak that evolves from EU laws and to ensure the unambiguous enforcement of such laws. Revoking, if need be any aspect of provisions of national laws that are against such principles. Besides, it would now become necessary for the European Courts to offer its ruling on such a matter that comes very much within the ambit of its Directives and do accordingly. Bibliography Seda Kucukdeveci & Swedex GmbH, Case C-555/07, “Europa” [2007] accessed 23 Mach 2010 Read More