4.2.1.2 The case of Kücükdeveci

141. Ms Kücükdeveci worked for Swedex since she was 18. Ten years later, Swedex dismissed Kücükdeveci taking into account, in accordance with §622 II 2 BGB, a term of notice (Kündigungsfrist) of only one month. In the relevant German legislative provision the period before the employee turned 25 did, however, not play a role in the calculation of the term of notice.1 Like in Mangold, the relevant German legislation falls within the scope of Directive 2000/78. However, different to the facts in Mangold, when the facts giving rise to the Kücükdeveci case took place, the implementation period of Directive 2000/78 had expired.2 With the reference for a preliminary ruling by the Landesarbeitsgericht Düsseldorf the Court of Justice was given the chance to confirm, to elaborate or to depart from its highly criticised Mangold judgment. Indeed, the Court confirms that “it is the general principle of European Union law prohibiting all discrimination on grounds of age, as given expression in Directive 2000/78, which must be the basis of the examination of whether European Union law precludes national legislation such as that at issue in the main proceedings”.3

142. The Court of Justice applies basically the same proportionality test to the particular German provision as it did in Mangold, and concludes that this provision is in conflict with the general principle prohibiting age discrimination.4 However, although it again carried out the substantive compatibility review itself, the Court emphasised that it is for the national courts to carry out the compatibility review and to set aside, if need be, any provision of national origin that is deemed incompatible with the principle prohibiting age discrimination.5 The Court clarified that it is not required that national courts make a reference for a preliminary ruling before they are permitted to set aside a provision of national origin which is held to be contrary to Union law.6 Consequently, whenever a national court is of the opinion that a legislative provision of national origin falling within the scope of Union law7 is incompatible with provisions or principles of Union law against which national provisions can be reviewed, and holds that there is no possibility to interpret the particular provision consistently with Union law, that court is obliged to set aside the provision at issue and, in addition, to assess the implications of that manoeuvre.8