The EU directive covering age discrimination cannot be relied on to challenge a domestic law where the act complained of pre-dated the deadline for implementing the directive and the measure attacked was not introduced to implement an EU law.
Mr Bartsch worked for BSH in Germany. He died in May 2004. Under the terms of BSH’s occupational pension scheme a survivor’s pension was not payable to a surviving spouses who was more than 15 years younger than the former employee.
Mrs Bartsch was 21 years younger than her husband and, therefore, not eligible for a survivor’s pension. Mrs Bartsch brought a claim of age discrimination.
Her claim was rejected by the ECJ as the German laws implementing the EU directive which outlawed age discrimination were not in force in 2004 and the deadline for implementing them had not passed.
The ECJ distinguished this case from the Mangold case (see below) because the German measure which was successfully challenged in Mangold had been specifically introduced to implement EU law.
This decision effectively limits greatly the potential impact of the Mangold decision.
Birgit Bartsch v Bosch and Siemens Hausgerate Altersfursorge GmbH, ECJ C427/06