Adjudicating Europe

Kücükdeveci is a groundbreaking decision.

For the first time, direct effect has given way to the principle of primacy as the cornerstone of EU Law. The relevant applicative criterion is not the concrete content of the provision nor its ability to confer rights in a direct and precise manner. As stated in paragraphs 50 and 51, the relevant criterion for application is primacy:

“50      It must be recalled here that, as stated in paragraph 20 above, Directive 2000/78 merely gives expression to, but does not lay down, the principle of equal treatment in employment and occupation, and that the principle of non-discrimination on grounds of age is a general principle of European Union law in that it constitutes a specific application of the general principle of equal treatment (see, to that effect, Mangold, paragraphs 74 to 76).

51      In those circumstances it for the national court, hearing a dispute involving the principle of non-discrimination on grounds of age as given expression in Directive 2000/78, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from European Union law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle (see, to that effect, Mangold, paragraph 77).”

A new category of rule has thus emerged in EU Law: Directives laying down general principles of European Union law. These provisions have full direct effect as a result of the principle they are expressing in writing, even in relationships between private parties. In Mangold and Kücükdeveci the principle was non-discrimination on the grounds of age. This rule should from now on extend to all the equality Directives (particularly the sex equality Directives, a form of discrimination openly banned in the Treaty for many years). Also, if fundamental rights are “principles of Union law”, the Kücükdeveci rationale should also extend to all Directives implementing any of the rights enshrined in the Charter (see, for example, the data protection Directive, also applicable in horizontal relationships). As for private law principles of Union law (certainly the ones most exposed to conflicts inter privatos), the Court appears to be more cautious: in Audiolux it openly denied that the principle of protection of minority shareholders was an autonomous principle of Union law on its own right. However, legitimate expectations is such a principle: could it be derived from it a general private law principle of good faith?

Kücükdeveci must be read in the light of Audiolux, a five-judge chamber judgment of huge importance. It should be remembered that the Court explained there, in a pedagogic way that intended to confer legitimacy to its case-law, how principles are formed in Union law. For that purpose, the Court refused to acknowledge the existence of private law principles on the sole grounds of soft law. Therefore, a clear message was sent: deciphering private law principles of Union law is not an easy task. Any principle will simply not do.

However, it will be hard for the Court to sustain this case-law only within the terrain of Directives laying down principles. Eventually, the line will stop drawing a frontier and shall eventually spill-over to all Directives. That is why the judgment is so important: it is the first building block in the construction of a genuine integrated legal order, made up of Union and national law, with a sole uniting criterion: primacy. Koen Lenaerts and Tim Corthaut already explored this evolution in their celebrated European Law Review article (Koen Lenaerts and Tim Corthaut, “Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law’,” (2006) 31 EL Rev 287), and it seems to be no coincidence that Lenaerts himself is sitting in Kücükdeveci. If he had anything to do with the final result of the judgment, European Union law certainly owes him a tribute.

The other impressive aspect of Kücükdeveci has to do with the Charter. In paragraph 22, the Court has given the Charter retroactive effects, taking it all the way back to the time when the relevant facts of the case took place. There has been a loud reaction to this point, but some counter-arguments should be made (just in case the Court has NOT wanted to give such effects to the Charter): maybe the Court is sending a message to the referring judge in case the effects of the original facts are still alive and thus a response can be given today, in the light of the Law as it stands today, to legal relationships as they now appear. Another reading of paragraph 22 is that the Court has simply reinforced its legitimacy by claiming that the infamous principle of non-discrimination on the grounds of age has been laid down in this new Charter. If that is the case, there is no retroaction of the Charter, but simply an assertion claiming the Court’s legitimate right to develop principles as derived from the constitutional traditions of Member States. And the Charter is the best expression of the said traditions when it comes to fundamental rights.

But maybe not. Maybe something has changed. Maybe the Court has interpreted that Lisbon has reinforced its authority in a way that it has never enjoyed in the past. After all, a Charter of fundamental rights is not the ordinary type of thing you run into every day. Maybe the Charter is a momentous text that has given the Court the will and drive to legitimize its decision-making process and reinforce thus its judgments. And if so, the Court can not afford to simply look towards the future. In that circumstance, the Court MUST apply the Charter even when the cases are coming from the distant (and not so distant) past. This is the type of application that most Constitutional Courts do shortly after being created, in the first years of development of their jurisdiction in the interpretation of the Constitution: fundamental rights cannot be disregarded, no matter when the relevant facts took place.

Taking a quick guess, I will stick to this last option.

Once again, the Court is integrating through Law. The political process reacted to the entry into force of Lisbon with the usual mediocrity: who is the real President of the European Council, the Spanish premiere or van Rompuy? how many Commissioners elect will the Parliament manage to kill? If the President of the European Council is a man, should the High Commissioner be a woman?

Huge dilemmas for the future of Europe, indeed.

When politics become irrelevant and only focus on irrelevant matters, the Court has proved again that it is up to the task that politicians are obviously not up to. Kücükdeveci should be read in that light, as another effort from the Court in pushing the process, in making it go further, in a gradual and discrete fashion but armed with the weapons of the Law.

The Court can be criticized (and it should very well be), but nobody can accuse it of being an irrelevant institution in the construction of a European Union.

Read in that light, I say:

Long live Kücükdeveci.

And long live (very long, please) the European Court of Justice.

- Pescatorius