Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/4.2.2.1:4.2.2.1 The prohibition of age discrimination: a general principle of Union law

Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/4.2.2.1

4.2.2.1 The prohibition of age discrimination: a general principle of Union law

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148. Directive 2000/78 has generated a considerable case flow: not only infringement procedures like Commission/Hungary1, but also preliminary procedures on the compatibility of national law with the Directive, like Mangold, ČEZ2, Kücükdeveci, HK Danmark3, Dansk Industri and Abercrombie & Fitch4. The judicial review of the compatibility of national legislation with Union law is conducted on the basis of the proportionality principle. The Court of Justice, or a national court, assesses whether a provision of national law has a legitimate aim, and whether it is appropriate and necessary to achieve that aim.5 The Court of Justice concludes that the particular German provisions are in conflict with Directive 2000/78 which aims at concretising the principle of equal treatment. It is settled case law that in cases between private parties directives cannot be invoked in order to disapply legislation that is incompatible with the particular directive.6 As mentioned above in no. 140, in Mangold the Court introduced a solution in favour of the employee who had been the subject of discrimination on account of age. The Court holds that the source of the principle underlying the prohibition of several forms of discrimination are found in various international instruments and in the constitutional traditions common to the Member States and derives from this that “the principle of non-discrimination on grounds of age must thus be regarded as a general principle of [Union] law”.7 The Court was lamented for its intransparant reasoning: it fails to provide for references to back up its allegation and it turns out that only a few Member States have entrenched the prohibition of age discrimination in their constitutions.8 This does not mean it cannot be a general principle of Union law, but it would have been advisable for the Court to provide a more thorough and convincing reasoning to enhance support for its decision.9

149. In Kücükdeveci the Court of Justice reiterates in a few words that the prohibition of age discrimination constitutes a general principle of Union law. Since it does not elucidate what makes the prohibition of age discrimination a general principle of Union law, the Court of Justice has not countered much of the criticism regarding its role in developing principles of Union law.10 As a consequence, the core question concerning what exactly makes the prohibition of age discrimination a general principle of Union law, as well as the criticism concerning the evaluative approach taken by the Court of Justice in relation to the development of principles retain their standing.11

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