Facts

Mr Rasmussen was dismissed by Ajos, his employer, upon reaching 60 years of age. Danish law provides that, in most circumstances, a dismissed employee is entitled to a severance payment. However, Mr Rasmussen was not entitled to such a severance payment as he had joined a pension scheme run by his employer and had joined this scheme prior to reaching the age of 50. The legislation specifically precluded individuals in this situation.

Mr Rasmussen brought proceedings in order to claim a severance payment, arguing that the Danish law breached the unwritten general principle of EU law prohibiting age discrimination. As his employer was a private company, he was not able to argue that it breached the Framework Directive 2000/78/EC; the Framework Directive only has direct effect against, and is enforceable against, entities of the state.

During the course of proceedings, Mr Rasmussen died. His estate continued with the claim.

The national court referred to the case of Ingeniørforeningen i Danmark v Region Syddanmark (a case involving a public employer that was an entity of the state), where the Danish law had been found to breach the unwritten general principle, and found in favour of Mr Rasmussen.

Ajos appealed to the ECJ, arguing that the Danish law on severance payments could not be precluded on the basis of the unwritten general principle of EU law prohibiting age discrimination without risking the principles of legitimate expectations and legal certainty.

The ECJ was asked to consider whether the unwritten general principle of EU law prohibiting age discrimination affords greater protection than the Framework Directive 2000/78/EC. If the Framework Directive 2000/78/EC does not afford greater protection, the ECJ was asked to consider whether the unwritten general principle of EU law prohibiting age discrimination can be applied to disputes between individuals and private employers.

A further question arose for the ECJ to consider: can a national court weigh the unwritten principle of EU law prohibiting age discrimination against the principles of legal certainty, and conclude that legal certainty can take precedence?

Decision

The ECJ held that Framework Directive 2000/78/EC does not itself lay down the general principle of EU law prohibiting age discrimination, but simply gives concrete expression to that principle in relation to employment and occupation. The ECJ said that the scope of the protection given by the Framework Directive does not go further than that offered by the unwritten general principle.

But the ECJ also added that the unwritten general principle would not apply in a situation where the Framework Directive 2000/78/EC would not also apply. On the one hand the ECJ appears to be saying that the general principle is broader than the Framework Directive and that the Framework Directive falls within it, but on the other than there is no practical difference between the two.

The ECJ went on to say that the unwritten general principle of EU law prohibiting age discrimination is applicable to disputes between individuals and private employers.

Following this, the ECJ then looked at whether a national court can balance principles of legal certainty with the general principle of EU law prohibiting age discrimination. The ECJ held that it could not. When faced with a national law that conflicts with the Framework Directive 2000/78/EC, a national court must interpret the law in a way that is consistent with the Directive (although it does not need to give direct effect to the Directive). If a consistent interpretation is not possible, the national court must disapply and declare as invalid the elements of national law that conflict with the unwritten general principle of EU law prohibiting age discrimination. Neither the principles of legal certainty nor the protection of legitimate expectations can alter that obligation of the national court.

The judgment is available here.

Dansk Industri (DI) v Estate of Karsten Eigil Rasmussen, case C-441/14, 19 April 2016