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Germany's age law ruled incompatible with EU Directives

By Leo Gasteen

The European Court of Justice (ECJ) has ruled that European Union law, more particularly the principle of non-discrimination on grounds of age as given expression by Directive 2000/78, precludes national legislation. As such, a German law which provides that periods of employment completed by an employee before reaching the age of 25 are not taken into account in calculating the notice period for dismissal, was deemed discriminatory and must be dis-applied by the national courts. 

The ruling comes after a request from the Higher Labour Court, Düsseldorf, who asked that the ECJ to clarify the compatibility of such a law on dismissal with European Union law, and the consequences of any incompatibility.

Under German employment law, the notice periods which an employer must comply with in the case of dismissal increase progressively according to the length of the employment relationship. However, periods of employment completed by an employee before reaching the age of 25 are not taken into account for calculating the period.

The ECJ found that the law on dismissal contains a difference of treatment based on age. The rule gives less favourable treatment to employees who have entered the employer’s service before the age of 25. It thus introduces a difference of treatment between persons with the same length of service, depending on the age at which they joined the undertaking.

It was further noted that as the dismissal of Ms Kücükdeveci took place after the date on which Germany had to transpose the directive into national law, the directive had the effect of bringing the German rule on dismissal within the scope of European Union law.

The ECJ concluded that the national court must ensure that the principle of non-discrimination on grounds of age as given expression in Directive 2000/78 is complied with, disapplying if need be any contrary provision of national legislation, independently of whether it makes use of its entitlement to ask the Court for a preliminary ruling on the interpretation of that principle.

Background

Ms Kücükdeveci had been employed by Swedex since the age of 18. At the age of 28, she was dismissed by that company, with one month’s notice. The company calculated the notice period as if she had three years’ length of service, although she had worked for it for ten years: in accordance with the German legislation, no account was taken of the periods of employment completed before Ms Kücükdeveci was 25. 

Consequently, she brought proceedings to challenge her dismissal, claiming that the legislation constituted discrimination on grounds of age, prohibited by European Union law. In her view, the notice period should have been four months, corresponding to ten years’ service.

European Court of Justice - Justice and Application - Full Text


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