Seda Kücükdeveci v Swedex GmbH & Co. KG.
Date: 2010-01-19
20. In the first place, that the Council of the European Union adopted Directive 2000/78 on the basis of Article 13 EC, and the Court has held that that directive does not itself lay down the principle of equal treatment in the field of employment and occupation, which derives from various international instruments and from the constitutional traditions common to the Member States, but has the sole purpose of laying down, in that field, a general framework for combating discrimination on various grounds including age (see Mangold , paragraph 74).
21. In that context, the Court has acknowledged the existence of a principle of non-discrimination on grounds of age which must be regarded as a general principle of European Union law (see, to that effect, Mangold , paragraph 75). Directive 2000/78 gives specific expression to that principle (see, by analogy, Case 43/75 Defrenne  [1976] ECR 455, paragraph 54).
23. For the principle of non-discrimination on grounds of age to apply in a case such as that at issue in the main proceedings, that case must fall within the scope of European Union law.
25. On that date, that directive had the effect of bringing within the scope of European Union law the national legislation at issue in the main proceedings, which concerns a matter governed by that directive, in this case the conditions of dismissal.
28. In the second place, as regards the question whether the legislation at issue in the main proceedings contains a difference of treatment on grounds of age, it should be recalled that under Article 2(1) of Directive 2000/78, for the purposes of that directive, the ‘principle of equal treatment’ means that there is to be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 of the directive. Article 2(2)(a) of the directive states that, for the purposes of Article 2(1), direct discrimination is to be taken to occur where one person is treated less favourably than another person in a comparable situation, on any of the grounds referred to in Article 1 (see Case C‑411/05 Palacios de la Villa  [2007] ECR I‑8531, paragraph 50, and Case C‑388/07 Age Concern England  [2009] ECR I‑0000, paragraph 33).
35. The referring court states that the second sentence of Paragraph 622(2) of the BGB reflects the legislature’s assessment that young workers generally react more easily and more rapidly to the loss of their jobs and greater flexibility can be demanded of them. A shorter notice period for younger workers also facilitates their recruitment by increasing the flexibility of personnel management.
36. Objectives of the kind mentioned by the German Government and the referring court clearly belong to employment and labour market policy within the meaning of Article 6(1) of Directive 2000/78.
38. The Member States enjoy a broad discretion in the choice of the measures capable of achieving their objectives in the field of social and employment policy (see Mangold , paragraph 63, and Palacios de la Villa , paragraph 68).
45. As regards, first, the role of the national court when called on to give judgment in proceedings between individuals in which it is apparent that the national legislation at issue is contrary to European Union law, the Court has held that it is for the national courts to provide the legal protection which individuals derive from the rules of European Union law and to ensure that those rules are fully effective (see, to that effect, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraph 111, and Case C‑268/06 Impact  [2008] ECR I‑2483, paragraph 42).
46. In this respect, where proceedings between individuals are concerned, the Court has consistently held that a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual (see, inter alia, Case 152/84 Marshall  [1986] ECR 723, paragraph 48; Case C‑91/92 Faccini Dori  [1994] ECR I‑3325, paragraph 20; and Pfeiffer and Others , paragraph 108).
47. However, the Member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts (see, inter alia, to that effect, Case 14/83 von Colson and Kamann  [1984] ECR 1891, paragraph 26; Case C‑106/89 Marleasing  [1990] ECR I‑4135, paragraph 8; Faccini Dori , paragraph 26; Case C‑129/96 Inter-Environnement Wallonie  [1997] ECR I‑7411, paragraph 40; Pfeiffer and Others , paragraph 110; and Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others  [2009] ECR I‑0000, paragraph 106).
48. It follows that, in applying national law, the national court called on to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in question, in order to achieve the result pursued by the directive and thereby comply with the third paragraph of Article 288 TFEU (see, to that effect, von Colson and Kamann , paragraph 26; Marleasing , paragraph 8; Faccini Dori , paragraph 26; and Pfeiffer and Others , paragraph 113). The requirement for national law to be interpreted in conformity with European Union law is inherent in the system of the Treaty, since it permits the national court, within the limits of its jurisdiction, to ensure the full effectiveness of European Union law when it determines the dispute before it (see, to that effect, Pfeiffer and Others , paragraph 114).
50. It must be recalled here that, as stated in paragraph 20 above, Directive 2000/78 merely gives expression to, but does not lay down, the principle of equal treatment in employment and occupation, and that the principle of non-discrimination on grounds of age is a general principle of European Union law in that it constitutes a specific application of the general principle of equal treatment (see, to that effect, Mangold , paragraphs 74 to 76).
51. In those circumstances, it for the national court, hearing a dispute involving the principle of non-discrimination on grounds of age as given expression in Directive 2000/78, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from European Union law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle (see, to that effect, Mangold , paragraph 77).
53. The need to ensure the full effectiveness of the principle of non-discrimination on grounds of age, as given expression in Directive 2000/78, means that the national court, faced with a national provision falling within the scope of European Union law which it considers to be incompatible with that principle, and which cannot be interpreted in conformity with that principle, must decline to apply that provision, without being either compelled to make or prevented from making a reference to the Court for a preliminary ruling before doing so.
54. The possibility thus given to the national court by the second paragraph of Article 267 TFEU of asking the Court for a preliminary ruling before disapplying the national provision that is contrary to European Union law cannot, however, be transformed into an obligation because national law does not allow that court to disapply a provision it considers to be contrary to the constitution unless the provision has first been declared unconstitutional by the Constitutional Court. By reason of the principle of the primacy of European Union law, which extends also to the principle of non-discrimination on grounds of age, contrary national legislation which falls within the scope of European Union law must be disapplied (see, to that effect, Mangold , paragraph 77).
55. It follows that the national court, hearing proceedings between individuals, is not obliged but is entitled to make a reference to the Court for a preliminary ruling on the interpretation of the principle of non-discrimination on grounds of age, as given expression by Directive 2000/78, before disapplying a provision of national law which it considers to be contrary to that principle. The optional nature of such a reference is not affected by the conditions of national law under which a court may disapply a national provision which it considers to be contrary to the constitution.