Adjudicating Europe

The Court of Justice in Kücükdeveci (para 21) has clearly confirmed its decision in Mangold (para 75). Indeed, it made clear that the existence of a principle of non-discrimination on grounds of age must be regarded as a general principle of European Union law. This ruling will certainly upset – which is per se perhaps a good thing – the followers of Roman Herzog (see “Stop the European Court of Justice”, 8 September 2008, Centrum für Europäische Politik). In this article published some days before C-427/06 Bartsch , one could read inter alia that the attitude of the Court of Justice was arrogant, that both labour market policy and social policy are still core competences of the Member States, that EU directives do not apply to Member States directly, but first have to be transposed by the national legislative, and that the ban on age discrimination is based on an adventurous construction since only 2 Member States (Finland and Portugal) have such a type of constitutional provision. The general principle of EU law was therefore fabricated and there was no common value or principle.

Points taken….but that was without considering the enormous impact of the EU Charter of Fundamental Rights. In the paragraph 22 of Kücükdeveci, the Court of Justice states that “[i]t should also be noted that Article 6(1) TEU provides that the Charter of Fundamental Rights of the European Union is to have the same legal value as the Treaties. Under Article 21(1) of the Charter, ‘[a]ny discrimination based on … age … shall be prohibited”. It is true that this paragraph does not give any reason as to the scope ratione temporis of the EUCFR. And it will be criticized for this without any doubts. Yet this paragraph constitutes the missing stone of the Mangold ruling and thus brings an additional (late) key argument regarding this polemical decision. With Kücükdeveci, the EUCFR appears clearly as a superior norm of EU law and the most important source of inspiration when it comes to general principles of EU law. In passing, this situation where the EUCFR backs up a principle will be atypical in the Lisbon Treaty era since the binding EUCFR should be used as the starting point.

The consequences of Kücükdeveci are huge. One of my favorites is that it results in an extension of the scope of EU law by expanding the reach of the general principles. In light of AG Sharpston in Bartsch (para 69), we had three situations in which a national measure may fall within the scope of EU law leading to the application of general principles 1) a situation of implementation of EU law (Wachauf scenario); 2) a situation of derogations under EU law (ERT scenario); 3) and a specific substantive rule of EU law which is applicable to the situation (Karner scenario).  We have now the Kücükdeveci scenario in which a national horizontal situation fall within the scope of EU law when a non-implemented Directive contains a general principle/ EU fundamental rights. This is very far-reaching…. Kücükdeveci will be both hated and glorified….Kücükdeveci should be read in light of Audiolux (see Pescatorius post on this blog)….Kücükdeveci brings hope…Many thanks to the Court of Justice for this courageous decision!

Cartesio