4.2.8.4 Consequences of a substantive compatibility review for law of national origin

210. Obviously, when a provision of national law survives a substantive compatibility review against the general principle of the prohibition of age discrimination in conjunction with Directive 2000/78 or its implementation measures the particular provision is applicable and has full effect.1 In such cases the legal consequences of the legal relationship between private parties remain unaffected – at least insofar as they already complied with the specific provision.

However, as was discussed a number of times already, when a legislative provision of national origin falling within the scope of the Directive is incompatible with the prohibition of age discrimination, the consequence is that the respective provision should be disapplied.2 In any case, in the Netherlands3 and Germany4, the disapplication of a legislative provision after a substantive compatibility review against Union law does not equate to the nullity or invalidity of a legislative provision. In that context, the question arises whether the obligation to set the provision aside rests only upon the courts that have to deal specifically with the case in which the provision was reviewed, or whether the obligation has erga omnes effect.

211. At Union level, it has been held that in view of the principle of legal certainty only the court that has to deliver a ruling in a specific case has to disapply the specific provision.5 In principle, in the Netherlands and in Germany the consequences of a substantive compatibility review have effect only inter partes. Courts dealing with other cases relating to the specific provision have to carry out a substantive compatibility review themselves – either upon request of one of the parties to the case or, potentially, of their own motion.6 Although the obligation to disapply the conflicting provision thus does not apply erga omnes, every other court that carries out the next substantive compatibility review of the same provision is likely to arrive at the same conclusion and therefore to disapply the provision. Hence, from the first substantive compatibility review of the specific provision onwards national courts can conclude that the Member State that enacted the particular provision has not complied with its obligations under Union law. As a result, by virtue of the outcome of the first compatibility review the national legislature may be encouraged to take action in order to toe the line and modify its legislation or, so to say, to clean up the legislation by removing the provision in question. In new cases, other national courts are likely to refer to the first judgment in which the particular provision was deemed to be incompatible with Union law, or to carry out an identical compatibility review.