4.2.1.4 The case of Dansk Industri

145. In Dansk Industri the Court had another chance to further clarify the cases discussed in the preceding paragraphs. As will be demonstrated it did so only to some extent, but primarily the Court of Justice just confirmed the earlier case law.

Mr Rasmussen was dismissed by Ajos1 at the age of 60. Soon Rasmussen found another paid job. Before he had reached the age of 50, Rasmussen had joined an old-age pension scheme on the basis of which he was entitled to an old-age pension payable by Ajos from his 60th birthday onwards. On the basis of the Danish law on salaried persons, Rasmussen would in principle be entitled to receive from Ajos a severance pay equal to the amount of three months salary.2 However, according to settled Danish case law, this law has to be interpreted as barring the entitlement to a severance pay to persons that are entitled to receive an old-age persion, even when the person does not receive the old-age pension yet because he or she remains active on the labour market.3 As a consequence, Rasmussen did not receive a severance pay because he had reached the age of 60 and therefore was entitled to an old-age pension, although de facto he did not receive that old-age pension yet because he remained active on the labour market.

On behalf of Rasmussen, a Danish trade union brought an action against Ajos, claiming payment of the severance pay. The Sé- og Handelsretten (the Danish Maritime and Commercial Court) upheld the claim and stated that from Ingeniérforegingen i Danmark4it was clear that the interpretation in Danish case law was contrary to Directive 2000/78 and the prohibition of age discrimination.5 Ajos brought an appeal before the Héjesteret (the Danish Supreme Court) and claimed that the approach taken by the Sé- og Handelsretten was contra legem. In addition, Ajos claimed the protection of its legitimate expectations and legal certainty for having relied on settled Danish case law on the interpretation of the Law on salaried employees, on the basis of which Rasmussen was not entitled to a severance pay.6

The Héjesteret wonders whether Directive 2000/78 or the general principle prohibiting age discrimination preclude legislation that deprives an employee of entitlement to a severance fee when that employee is entitled to old-age pension and regardless of the fact that the employee still remains active on the labour market. Further, the Héjesteret wishes to inquire whether under Union law a national court is permitted to balance the principle prohibiting age discrimination against the principle of the protection of legitimate expectations and legal certainty and to arrive at the conclusion that the latter principles take precedence over the former so that the employer is relieved from the obligation to pay a severance pay. Lastly, the Héjesteret asks whether it is relevant, in relation to determining whether such a balancing exercise may be carried out, to take into consideration that the employee may bring an action for State liability to claim compensation from the Member State that applies legislation incompatible with Union law.7

146. In response to the questions the Court of Justice holds that in order for the general principle prohibiting age discrimination to be invoked to disapply national legislation incompatible with it, the case in question must fall within the scope of the prohibition of discrimination laid down by Directive 2000/78.8 Referring to Ingeniérforegingen i Danmark the Court of Justice concludes that the Danish legislation in question falls within the scope of Directive 2000/78 and is indeed incompatible with the general principle prohibiting age discrimination as given concrete expression by that Directive.9 Then the Court recalls that national courts must provide the legal protection that private parties derive from Union law and have to ensure the effectiveness of these provisions.10 National courts must find out whether the relevant national law can be interpreted consistently with Union law.11 The duty of consistent interpretation includes the obligation to change established case law if that case law is based on an interpretation of national law that is incompatible with Union law.12 The Court holds that the Héjesteret can therefore not validly claim that it is impossible to interpret the national legislation at stake in conformity with Union law merely because in Danish case law this legislation has steadily been interpreted in a manner that is incompatible with Union law.13 Even when it turns out to be impossible to interpret national law in conformity with Union law, a national court is obliged to provide effective judicial protection by disapplying any national provision that is incompatible with the principle prohibiting age discrimination as concretised by Directive 2000/78.14 In horizontal proceedings, national courts cannot rely on the principle of the protection of legitimate expectations in order to continue to apply legislation that is incompatible with the principle prohibiting age discrimination.15 The Court argues that allowing national courts to rely on the principle of the protection of legitimate expectations would in practice have the effect of limiting the temporal effects of the Court of Justice’s interpretation.16 It is settled case law that the interpretation of Union law given by the Court of Justice dates back to the time on which the particular rule came into force.17 Consequently, Union law as thus interpreted must be applied even to legal relationships that arose and were established before the ruling following upon the request for interpretation. Only the Court of Justice itself is allowed to restrict the temporal effects of its interpretations of Union law and it does so only in “truly exceptional circumstances”18, namely when there are “overriding considerations of legal certainty”19. Moreover, the Court continues, a private party that has brought proceedings culminating in the Court of Justice interpreting Union law as precluding the national provision at stake, cannot be denied the benefit of that interpretation.20 Hence, the protection of legitimate expectations cannot be relied upon against such a private party.21 Lastly, the possibility for that private party to bring an action against the Member State to claim compensation for damages suffered as a result of the problematic legislation cannot alter the obligation of a national court to interpret national law consistently with Union law or to disapply a national provision that is incompatible with the principle prohibiting age discrimination. Neither can this possibility justify that a national court gives precedence to the principle of protection of legitimate expectations of the private party that has relied on the problematic national provision.22