Ms Kücükdeveci worked for Swedex from the age of 18. She was dismissed at age 28 with 10 years' service. 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. Swedex therefore gave her notice of dismissal based on three years' service. Ms Kücükdeveci brought a claim arguing that this was unjustified direct age discrimination. Two questions were referred to the ECJ:

1. Does the German law infringe Community law prohibiting age discrimination? and

2. Can the law be justified?

A third question also required answering if the ECJ found that the German law infringed Community law and was not justifiable. The question was:

3. In legal proceedings between private individuals, must a court of a Member State disapply a statutory provision which is explicitly contrary to Community law?

The AG's opinion

Further information on the Advocate-General’s opinion prior to this case can be found here.

The ECJ decision

To deal with the questions in turn, the ECJ found that the German law constituted a difference in treatment under Article 2(2)(a) as two people who were otherwise identical apart from their age when they started would benefit from different notice periods.

In relation to the second question, the German government stated that the reason the law set the threshold at 25 was because of the outcome of a compromise between; (a) the government of the time, which wanted a uniform extension by three months of the notice period for the dismissal of workers aged over 40, (b) the supporters of a progressive extension of that period for all workers; and, (c) the supporters of a progressive extension of the notice period without taking the period of employment into account, the purpose of the rule being to give employers partial relief from lengthy periods of notice for workers aged under 25.

Furthermore, the German court making the referral to the ECJ also identified that young workers generally possess more social mobility and react more easily and more rapidly to the loss of their jobs. It believed therefore that greater flexibility can be demanded of them and that a shorter notice period for younger workers also facilitates their recruitment by increasing the employer’s flexibility.

The ECJ identified these objectives as falling within Article 6(1) but decided that the law was not an appropriate and necessary measure for achieving these aims and was not therefore justified. The law applied to all employees who joined the business before the age of 25, whatever their age at the time of dismissal. It affects young employees unequally as those who enter employment earlier in life will be affected, whereas those who start later (after having completed academic or vocational training, for example) are not so affected.

This decision meant that the court then had to deal with the more difficult third question identified above.

EU Directives are binding only upon member states and emanations of them (such as government departments). Directives create legal obligations that a state must obey and a private individual can sue if the state breaches them. This is the principle of “direct effect”. Directives are not binding upon private individuals, so are generally not binding in disputes solely between private individuals (as in the present case). National laws must instead be interpreted consistently with a Directive, but if this cannot be done, then national law prevails. This is the principle of “indirect effect”.

The case of Mangold v Helm saw a marked departure from the general rule on indirect effect. The ECJ found in Mangold that that the “general principle of non-discrimination” on the grounds of age is a general principle of EU law and rather than national law prevailing, the general principle should. In the present case, the ECJ was able to clarify what was meant.

When a national law conflicts with a Directive on discrimination, it should be set aside, not because it conflicts with the Directive, but because it is not consistent with the general principle of non discrimination which underlines EU law.

The judgment however reigned in the potential breadth of this general principle. The court said that the scope of the general principle of non discrimination is limited to the scope of the directive that gives effect to it. In essence, the court has therefore managed to find a “back door” to letting some directives have horizontal direct effect.

As a side issue, the ECJ also ruled that a national court does not need to seek a ruling from the ECJ before setting aside a piece of national law. 

The judgment is available here.

Seda Kücükdeveci -v- Swedex GmbH & Co. KG, Case C‑555/07