Thursday 21 January 2010

ECJ Ruling Challenges Supremacy of German Constitutional Court

I'm a bit late to this, but I've just spotted this ruling by the EU Court of Justice on Tuesday. It involves the case of a 28-year-old German woman, who claimed age discrimination on the basis that her employer refused to take account of all her years of service to calculate her redundancy notice period.

Seda Kücükdeveci had been working for Swedex GmbH since she was 18 and she was made redundant in 2006. Under German law, her employer needs only to take into account the number of years she had been with the company since aged 25; thus they gave her one rather than four months’ notice.

The ECJ ruled that this was discrimination on grounds of age at the workplace, and was against EU law:

On those grounds, the Court (Grand Chamber) hereby rules:

1. European Union law, more particularly the principle of non-discrimination on grounds of age as given expression by Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that periods of employment completed by an employee before reaching the age of 25 are not taken into account in calculating the notice period for dismissal.

2. It is for the national court, hearing proceedings between individuals, to ensure that the principle of non-discrimination on grounds of age, as given expression in Directive 2000/78, is complied with, disapplying if need be any contrary provision of national legislation, independently of whether it makes use of its entitlement, in the cases referred to in the second paragraph of Article 267 TFEU, to ask the Court of Justice of the European Union for a preliminary ruling on the interpretation of that principle.

What's interesting to note is that this is a direct challenge to the German Constitutional Court's self proclaimed supremacy, that it established in a ruling before Germany's ratification of the Lisbon Treaty:
“The peoples of the member-states are the holders of the constituent power. The Basic Law does not permit the special bodies of the legislative, executive and judicial power to dispose of the essential elements of the constitution.”
By ruling that, essentially, directives can have a horizontal effect - they can be relied upon in a suit between citizens - the ECJ has issued a challenge by directly using the anti-discrimination directive in an employer-employee relationship, thus by-passing German industrial law.

It will be interesting to see the Constitutional Court's response. It will also be interesting to see Cameron's response (should he win the GE) when he, undoubtedly, faces a similar challenge despite his rhetoric regarding a sovereignty bill.

I don't hold out much hope.

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