Seminar on EU Discrimination Law

Meeting Report by Dan Wilsher

1. The EC law team at City Law School met to hold a seminar on recent case-law on discrimination from the European Court of Justice. The seminar was led by Nick Hatzis who was just finishing his two year secondment to the chambers of Advocate General Maduro as a referendaire. He has therefore been closely involved in some of the cases under discussion. He assisted in the preparation of the Advocate General’s opinion in C-303/06 Coleman (which was ultimately followed by the full Court).

2. The cases raise interesting issues of both constitutional and substantive law. In constitutional terms the most important decision of the ECJ took place in C-144/04 Mangold which held that the principle of non-discrimination on grounds of age was one of the general principles of the Community law. This broke new ground because before this it had been assumed that only specific secondary legislation relating to age discrimination would generate individual rights under Community law. In Mangold there was such secondary legislation (Dir 2000/78) which set out a general prohibition on discrimination on various grounds (including age).

3. The implementation period for this Directive had not however expired in the case of Mr Mangold. He had been hired as a lawyer on a fixed term contract with the attendant job insecurity this entailed. German law permitted this for workers over age 52 without individual justification (whilst those under 52 were entitled to permanent contracts unless good reasons could be provided). The national law was amended in 2000 to raise that age to 58 as part of implementation of a Framework agreement agreed by the Community (Council Directive 1999/70/EC). Mr Mangold argued that the national law breached EC law by discriminating on grounds of age. Germany argued that the implementation period had not expired and so Community law did not apply. How did the ECJ respond?

– First, the ECJ found that the national law passed during the transposition period for Directive 2000/78 was liable to seriously compromise attainment of the result prescribed by the Directive because it authorised discrimination. (relying upon the Inter-Environment decision). This is hard to understand because the German government would have been able to change national law to comply with the Directive before the relevant expiry date. There could have been transitional protection for workers on fixed contracts at that date.

– Second, the ECJ found that the prohibition on age discrimination was not created by the Directive but rather emerged from ‘various international instruments and in the constitutional traditions common to the Member States.’ With this very brief and opaque comment it said ‘the principle of non-discrimination on grounds of age must thus be regarded as a general principle of Community law.’ Thus the Directive was irrelevant and so was the implementation period.

Community law therefore governed whenever a matter was within the ‘scope’ of community law. The ECJ did not analyse this but rather assumed the national law was within such scope.

The decision was highly controversial for the way that it introduced huge uncertainty into national legal contracts and relationships with only sparse justification and guidance. It was not clear that the Court had really provided a clear legal justification for ruling that age non-discrimination was a general principle of EC law nor the contours of this principle.

4. Subsequent cases have sought to limit without rejecting the ruling in Mangold. The most obvious is C-427/06 Bartsch which concerned a German law that denied a widow’s private pension to the spouse because she was more than 15 years younger than the deceased husband. The law was directed at prevented women marrying older men and claiming full pension rights upon a death soon afterwards. The law discriminated on grounds of age. The spouse made her claim during the period of implementation of the non-discrimination Directive 2000/78 in issue in Mangold. This time however the Court avoided having to apply the general principle of non-discrimination on the basis that the situation did not fall within the scope of EC law. This was because Article 13 of the EC Treaty merely gave a power to pass laws on discrimination but did not in itself bring all discrimination within the scope of EC law (contrast this with Gravier on student fees). The Court held that Mangold really turned upon the fact that the national law there was itself implementing the Framework agreement Directive and so within the scope of EC law.

5. The reasoning in Bartsch suggests that the Court reconsidered the breadth of Mangold and confined the general principle of non-discrimination to situations with a real link to Community law. It remains unclear what this link will be but reliance upon Article 13 EC treaty will not be enough. In practice, Dir 2000/78 will be the primary source of law now because the implementation period has passed. The Mangold principle will therefore be rarely applied in practice.

6. We also discussed some important judgments relating to the Directive itself. Most prominent was C-303/06 Coleman which raised the novel question of whether there was in principle a breach of Art 2(2)(a) of the Directive when a person who was not disabled themselves was harassed at work because they were related to a person who was disabled. The Court ruled that the Directive sought to look at the reasons for discrimination not the person who suffered the harm. Thus where the employment harassed a mother who needed to take time off to care for her child, using derogatory language about the child’s disability, this was direct discrimination for reason of disability. It was in breach of the Directive. This would not however apply to indirect discrimination – where the mother found it harder to care for the disabled child because of long hours that were required of her (and all employees). This was landmark case in extending the range of persons who can sue under the Directive to include family members (not themselves disabled). It would extend to a spouse suffering harassment at work on account of religious opinions of her husband.

7. An important case under the Directive for same sex partners occurred in C-267/06 Maruko where the Court held moved towards providing financial protection for same sex couples. German law on registered partnerships gave status as family members to such couples. Its social security law had also been modified to give surviving partners benefits. Maruko applied for a private pension payable to surviving spouses. This was denied as he was not a spouse. The Court held that it was for the national court to decide if married couples and registered partners were in comparable situations given the developments in German law was gradually moving towards equivalence. If the answer was ‘yes’ to this question, then the Court said this would be direct discrimination on grounds of sexual orientation. This is an important result because it would mean such measures could not be justified by differences between marriage and partnership as would have been possible if the discrimination has been ruled indirect. It is also not obvious that this right. Unmarried heterosexual couples would also not get the pension. They could marry to get it but it is clear that the discrimination that results is not co-terminous with sexual orientation. However the key issue of comparability was left to the national court to resolve.


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