Susanne Bulicke v Deutsche Büro Service GmbH.
Date: 2010-07-08
24. Article 9 of the Directive states, firstly, that Member States are to ensure that judicial and/or administrative procedures for the enforcement of obligations under the Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them and, secondly, that those obligations of the Member States are without prejudice to national rules relating to time-limits for bringing actions as regards that principle. It follows from that wording that the question of time-limits for initiating a procedure for the enforcement of obligations under the Directive is not governed by European Union law.
25. In accordance with settled case-law, in the absence of European Union rules in the field it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from European Union law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, secondly, that they do not render practically impossible or excessively difficult the exercise of rights conferred by European Union law (principle of effectiveness) (see, in particular, Case C-432/05 Unibet  [2007] ECR I-2271, paragraph 43; Joined Cases C-222/05 to C-225/05 van der Weerd and Others  [2007] ECR I-4233, paragraph 28 and the case-law cited; and Case C‑2/06 Kempter  [2008] ECR I‑411, paragraph 57).
26. The principle of equivalence requires that the national rule in question be applied without distinction, whether the infringement alleged is of European Union law or national law, where the purpose and cause of action a re similar (Case C-326/96 Levez  [1998] ECR I-7835, paragraph 41; Case C‑78/98 Preston and Others  [2000] ECR I‑3201, paragraph 55; and Case C‑63/08 Pontin  [2009] ECR I‑0000, paragraph 45).
27. However, that principle is not to be interpreted as requiring Member States to extend their most favourable rules to all actions, such as the case in the main proceedings, brought in the field of employment law (see, to that effect, Levez , paragraph 42, and Pontin , paragraph 45).
28. In order to establish whether the principle of equivalence has been complied with in the case in the main proceedings, it is for the national court, which alone has direct knowledge of the procedural rules governing actions in the field of employment law, to consider both the purpose and the essential characteristics of allegedly similar domestic actions (see Levez , paragraphs 43; Preston and Others , paragraph 56; and Pontin , paragraph 45).
29. Moreover, every case in which the question arises as to whether a national procedural provision is less favourable than those concerning similar domestic actions must be analysed by the national court by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies ( Levez , paragraph 44; Preston and Others , paragraph 61; and Pontin , paragraph 46).
30. In the light of the information supplied by the national court, it appears that the possibility of obtaining compensation for pecuniary or non-pecuniary damage resulting from breach of the prohibition of discrimination on grounds of race, ethnic origin, religion or belief, disability, age or sexual identity was introduced by the AGG and that, strictly speaking, there were no equivalent procedures before the adoption of that Law.
35. As regards application of the principle of effectiveness, the Court has held that every case in which the question arises as to whether a national procedural provision makes the application of European Union law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies. For those purposes, account must be taken, where appropriate, of the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure (Case C-312/93 Peterbroeck  [1995] ECR I-4599, paragraph 14; Unibet , paragraph 54; Case C‑40/08 Asturcom Telecomunicaciones  [2009] ECR I‑0000, paragraph 39; and Pontin , paragraph 47).
36. It is settled case-law that the laying down of reasonable limitation periods for bringing proceedings satisfies, in principle, the requirement for effectiveness inasmuch as it constitutes an application of the fundamental principle of legal certainty (see Case C‑261/95 Palmisani  [1997] ECR I‑4025, paragraph 28; Preston and Others , paragraph 33; Case C‑255/00 Grundig Italiana  [2002] ECR I‑8003, paragraph 34; and Kempter , paragraph 58). Such time-limits are not liable to render practically impossible or excessively difficult the exercise of rights conferred by European Union law (see Grundig Italiana , paragraph 34; Kempter , paragraph 58; and Pontin , paragraph 48). With that reservation, the Member States remain at liberty to fix longer or shorter limitation periods (Case C‑30/02 Recheio – Cash & Carry  [2004] ECR I‑6051, paragraph 20). As regards limitation periods, the Court has also held that, in respect of national legislation which comes within the scope of Community law, it is for the Member States to establish those periods in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration (see Pontin , paragraph 48).
38. Paragraph 15(4) of the AGG lays down a period of two months for submitting a claim to an employer. As the German Government has explained, it is important for an employer to be informed quickly of a claim and not to be required to retain documents relating to recruitment procedures for an excessive amount of time, having regard to the evidential requirements laid down by the AGG.
39. The fixing of that period at two months would not appear liable to render practically impossible or excessively difficult the exercise of rights conferred by European Union law.
40. With regard to the starting point, it follows from the wording of Paragraph 15(4) of the AGG that, ‘in the case of a job application, … the time-limit commences on receipt of the rejection’ of the job application. In such a situation, there is a risk that employees will have no way of determining whether they have been discriminated against, or, if so, to what extent, within a period of two months from rejection of their application, inter alia because of machinations on the part of the employer, which would make it impossible for them to bring the action provided for in the Directive (see, to that effect, Levez , paragraph 31).
41. However, it follows from both the order for reference and the observations of the German Government that the starting point for the time-limit laid down in Paragraph 15(4) of the AGG is, on a teleological interpretation of that provision, not necessarily receipt of the job application rejection but the point at which the worker has knowledge of the alleged discrimination. In those circumstances, that provision is not liable to render practically impossible or excessively difficult the exercise of rights conferred by European Union law.
42. In the light of those considerations, the answer to the first part of the question is that the primary law of the European Union and Article 9 of the Directive must be interpreted as not precluding a national procedural rule under which a victim of discrimination in recruitment on grounds of age must make a claim against the perpetrator of that discrimination within two months in order to obtain compensation for pecuniary or non-pecuniary damage, provided:
– firstly, that that time-limit is not less favourable than that applicable to similar domestic actions in employment law,
– secondly, that the fixing of the point from which that time-limit starts to run does not render practically impossible or excessively difficult the exercise of rights conferred by the Directive.
It is for the national court to ascertain whether those two conditions are met.
The principle that prohibits a reduction in the level of protection
44. With regard to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) and, in particular, clause 8(3) of that Framework Agreement, under which implementation of the agreement cannot provide the Member States with valid grounds for reducing the general level of protection for workers previously guaranteed in the domestic legal order in the sphere covered by that agreement, the Court has held that reduction of the protection which workers are guaranteed in the sphere of fixed-term employment contracts is not prohibited as such by the Framework Agreement but, in order for that reduction to be caught by the prohibition laid down by clause 8(3) of the agreement, it must, first, be connected to the ‘implementation’ of the Framework Agreement and, second, relate to the ‘general level of protection’ afforded to fixed-term workers (Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others  [2009] ECR I‑3071, paragraph 126, and the case-law cited).