Facts

German law does not take into account time employed before the age of 25 in order to calculate service-related minimum notice periods in case of dismissal.

A German court has referred a case to the European Court of Justice‚ asking whether a German law giving younger workers shorter minimum notice periods contravenes the EU Equal Treatment Directive and asking the following questions:

1. is German law incompatible with the Community law prohibition against discrimination on the ground of age;
2. if so, can it be justified on the grounds that employers are recognised as having a commercial interest in flexibility and younger workers are assumed to have greater professional and personal flexibility and mobility; and,
3. in a case by a private individual, can it disapply a statutory provision incompatible with the community law.

The AG's opinion

The Advocate General responded that, in relation to the first and second questions, the relevant provisions of German law conflict with art. 6 of the Directive 2000/78 and cannot be justified by the interest of the employer in having flexibility in hiring young people. In fact, this cannot be considered an aim that could legitimate a lower protection for younger people. In any case, the Advocate General considered the measure inappropriate and disproportionate.

In relation to the third question and the horizontal direct effect of the Directive, particularly in the light of the ECJ’s Mangold judgment, the Advocate General urges the ECJ to reverse its position and to grant horizontal direct effect of the Directive so that private individuals can rely on it directly. The AG alleges that the two corrective mechanisms in EU law, namely (1) the obligation on the part of Member States’ courts to interpret their domestic law in conformity with Directives and (2) the liability of Member States to compensate their subjects for any loss they sustain as a result of non- transposition of a Directive, are not sufficient in discrimination cases to assure an effective application of the EU non-discrimination principle. The Advocate-General proposes that ECJ advise the German court that referred the matter to the ECJ, that the provision of law at issue be declared void and disapplied.

The AG's opinion is available here.

Kücükdeveci -v- Swedex GmbH Case C-555/07