Adjudicating Europe

I have read the Kücükdeveci judgment with great interest. I am happy for Ms Kücükdeveci. She has won her case. However, I am not sure about the reasoning of the Court. If my reading of the decision is correct, then the Court has laid down the following new rule of EU law:

“When a directive gives expression to a general principle of EU law, such as prohibition of discrimination on the grounds of age, it is relieved of its legal nature of a directive. Consequently this kind of directive does not bind the Member States only, but applies also between the individuals. National courts shall disapply any conflicting national provision that runs contrary to the general principle of EU law as expressed in the directive.”

This new rule is grounded in the following logical premises:

1. Prohibition of discrimination on the grounds of age is a general principle of EU Law (Mangold).
2. General principles of EU Law are – in effect – directly applicable (Mangold).
3. Directive 2000/78 only gives expression to one of such general principles.
4. Directive incorporating a general principle is not a directive properly so called and therefore can engender horizontal direct effect.

I believe that logical coherence of this argumentative structure is deficient already on the first premise. In the words of AG Mazak in Palacios de la Villa Par. 97: “In the light of the foregoing considerations I do not regard as particularly compelling the conclusion drawn in Mangold as to the existence of a general principle of non-discrimination on grounds of age.”

The problems accentuate on the second premise. To explain why, I will again simply rely on AG Mazak in Palacios de la Villa (Par. 133-138):

“[…] The Court did not therefore accept that Directive 2000/78 has horizontal direct effect; rather, it bypassed the lack of it by ascribing direct effect to the corresponding general principle of law.

In adopting that approach the Court set foot on a very slippery slope, not only with regard to the question whether such a general principle of law on the non-discrimination on grounds of age exists, but also with regard to the way it applied that principle.

I do not maintain that general principles of law would, as a general rule, fall short of the substantive requirements for direct effect (to be unconditional and sufficiently precise). My point is that the concept of general principle relates to a particular form of rule rather than to a particular content: it describes a source of law which may embrace rules of widely varying content and degree of completeness, ranging from interpretative maxims to fully fledged norms like fundamental rights or the highly developed body of Community principles of sound administration and procedure.

Accordingly, the function of general principles varies, too, depending both on the principle in question and the actual context in which it is used. General principles can, for instance, serve as interpretative criteria, as a direct yardstick by which to gauge the lawfulness of Community acts or even to found an enforceable claim to a particular legal remedy in Community law.

It should be observed, however, that as a rule, in a context such as the circumstances of the present case, where a directive has been adopted, such an act of secondary Community law may be interpreted in the light of the general principles underlying it and measured against those principles. Thus general principles of law – referred to by the Court on the basis of Article 220 EC as part of primary Community law – are given expression and effect through specific Community legislation. That is in fact the approach followed by the Court in Caballero to which it made reference in Mangold. In that case, too, the general principle of equality and non-discrimination is not applied autonomously, but as a means of interpreting Council Directive 80/987/EEC.

A problematic situation could arise, however, if this concept were to be turned practically upside down by allowing a general principle of Community law which, as in the present case, may be considered to be expressed in specific Community legislation, a degree of emancipation such that it can be invoked instead or independently of that legislation. 

Not only would such an approach raise serious concerns in relation to legal certainty, it would also call into question the distribution of competence between the Community and the Member States, and the attribution of powers under the Treaty in general. It should be recalled in this connection that Article 13 EC expressly reserved to the Council the power, acting in accordance with the procedure provided for under that article, to take appropriate action to combat, inter alia, discrimination on grounds of age – which it has chosen to do by means of a directive. In my view the limitations which this specific Community act entails, notably with regard to horizontal direct effect, should not therefore be undermined by recourse to a general principle.” (emphasis added).

The controversies spurred by the Mangold decision are well known. I am afraid Kücükdeveci is Mangold II: an even bolder, but simultaneously also more porously argued decision. At least for me this is not the right way of redefining the very fundamentals of EU law. Just wait and see.

Eurostein