Giovanni Zaccaroni, Ph.D (University of Bologna), Junior lawyer FratiniVergano 

The Court of Justice, in the recent DI case, further defined the differences in applying rights derived from Directive 2000/78/EC, which prohibits employment discrimination based on religion, disability, sexual orientation, and age, and the general principle of non-discrimination based on age in employment matters.

This builds upon previous landmark cases like Mangold and Kucukdeveci. In these cases, the Court addressed the obligation to prevent age discrimination in employment when challenged by national laws. The Court examined if non-discrimination obligations under EU secondary legislation apply to disputes between private parties. Established case law, like the Marshall and Dominguez cases, demonstrates that directives are not applicable in these situations (horizontal direct effect) as they impose obligations on states, not individuals. The Court, in Mangold and Kucukdeveci, addressed this by stating that the principle of non-discrimination applies to horizontal litigation. In other instances, as in Deckmyn, the Court directed the national court to interpret national law in harmony with EU law to ensure consistent application.

This, however, contradicts the notion that general principles should only have interpretative value according to international law doctrine and not confer rights. How is this feasible if the directive doesn’t apply, and the rationale is to provide Member States leeway in implementing EU law? How can a clear separation be made between uniformly interpreting EU law, applying directives, and implementing the non-discrimination principle? The answer prompts two considerations.

Ensuring Consistent Interpretation of Non-Discrimination Obligations

The first pertains to consistently interpreting non-discrimination obligations outlined in the Treaties and the practical effect of those provisions. This ensures that Member States don’t exploit limitations on EU law application to circumvent their obligations, as seen in the Dansk Industry case. In this instance, national law did not provide compensation for early termination to a worker eligible for retirement (aged 60) at the time of termination.

The national court questioned if invoking the non-discrimination principle was appropriate over applying national legislation since the principle’s scope might be as broad as the directive’s. The Court and the Advocate General agreed that the directive wasn’t directly applicable due to the involvement of private parties. However, they emphasized the national court’s duty to interpret national law consistently with the directive. As existing legislation explicitly denied compensation to workers eligible for retirement pensions, adhering to EU law in this case was impossible. The Court stated that when aligning national law with EU law isn’t feasible, national courts, without seeking permission from the Court of Justice, should rely on the age-based non-discrimination principle to disapply discriminatory national provisions.

This judgment marks a significant step as the Court explicitly differentiates between applying uniform interpretation and invoking general principles. While prior cases like Mangold and Kucukdeveci invoked the general principle, suggesting a similarity in scope and force between the directive and the principle, this led to inconsistencies with the Marshall and Dominguez case law.

However, the DI judgment establishes that the non-discrimination principle is applicable when the directive isn’t, granting it a subsidiary direct effect. While this theoretical concept was previously debated among legal scholars, the Court’s reasoning now clarifies that even when the directive establishing non-discrimination isn’t applicable, the principle itself can be applied.

The Significance of the Non-Discrimination Principle

The rationale behind this application highlights the second crucial aspect of the case. The Court, in the AMS case, explicitly recognized the age-based non-discrimination principle as a justiciable rule, unlike the principle of collective action in Article 27 of the EU Charter of Fundamental Rights.

This raises the question of why the non-discrimination principle holds such weight that it applies even when other principles don’t have the same privilege. Furthermore, why is this done in a manner that empowers the Court of Justice to compel national courts to disapply national provisions, even when EU legislation (the Directive) aims to provide Member States with discretion?

The answer lies in the importance of the non-discrimination principle, rooted in equality principles enshrined in various national constitutions. Its significance in the European Union’s integration process elevates it beyond a general principle (which is already significant) to a structural and fundamental principle guiding all EU actions. Considering this, it’s plausible to foresee how international agreements the EU is negotiating, such as TTIP or the EU-Turkey Joint Statement on migration, could be challenged in the Court. For instance, provisions allowing mutual recognition or presuming compliance with EU-US standards in service or worker mobility, or those favoring specific migrant categories, could face scrutiny.

In these situations, not just the Court of Justice, but every EU national court, has the power to disapply discriminatory EU or national provisions. This might seem evident to EU law experts but is less clear at the national level, as many courts hesitate to exercise what is effectively “diffuse constitutional review” – ensuring national and EU legislation align with a principle at the apex of the legal hierarchy.

Concluding Thoughts

By interpreting the concept of general principles, the Court of Justice has equipped national courts with a powerful tool. This grants individual judges the authority to uphold the unwritten EU constitution. However, for legal professionals rooted in codification, questions remain: Should equal importance be given to all discrimination grounds listed in the Charter (over 14) and the Treaty (Article 19 TFEU)? This is complex, and for those who value consistency in the Court’s reasoning, it suggests a current disparity in applying the equality principle within the EU.

Barnard & Peers: chapter 9, chapter 20

Photo credit: blog.hireinitiatives.com