Mangold - PowerPoint Presentation

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Mangold CaseC-144/04Slide2
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Facts and CaseSlide4
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Position of the National Judge and QuestionsSlide8

There are three basic types of EU legislation: regulations, directives and decisions.

A regulation

is similar to a national

law. It is binding in its entirety.

Directives

set out general rules to be transferred into national law by each country

as they deem appropriate

.

A decision only deals with a particular issue and specifically mentioned persons or organisations.

EU LegislationSlide9

Provisions on implementation (clause 8)

3. Implementation of this agreement shall not constitute valid grounds for reducing the general level of protection afforded to workers in the field of the agreement

Directive 1999/70Slide10

Measures to prevent abuse (clause 5)

1. To

prevent abuse arising from the use of successive fixed-term employment contracts or

relationships….

Member

States…

shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following

measures:

…..

Directive 1999/70Slide11

'The conclusion of a fixed-term employment contract shall not require objective justification if the worker has reached the age of 58 by the time the fixed-term employment relationship begins. A fixed term shall not be permitted where there is a close connection with a previous employment contract of indefinite duration concluded with the same employer. Such close connection shall be presumed to exist where the interval between two employment contracts is less than six months'.

Paragraph 14 (3)

TzBfGSlide12

The points by National Court (1)

The national provision

is contrary to the prohibition of ‘regression’

in Clause 8(3) of Framework Agreement in

that,

on the transposition into national law of Directive 1999/70

, that provision lowered from 60 to 58 the age of persons excluded from

protection…

Such a provision is also contrary to Clause 5 of the Framework AgreementSlide13

Questions by the National Court (1)

(a) Is Clause 8(3) of the Directive 1999/70/EC to be interpreted as prohibiting, when transposed into national law, a reduction of protection following from the lowering of the age limit from 60 to 58?

(b) Is Clause 5(1) of the Directive 1999/70/EC to be interpreted as precluding a provision of national law, such as the provision at issue in this case, which contains none of the three restrictions set out in Clause 5(1)?Slide14

Article 6 Justification of differences of treatment on grounds of age

1. Notwithstanding

Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy,

labour

market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary

.

Such differences of treatment may include, among others

:….

Directive 2000/78Slide15

The points by National Court (2)

It is

uncertain whether rules such as those contained in Paragraph 14(3) of the

TzBfG

are compatible with Article 6 of Directive

2000/78

the period prescribed for transposition of Directive 2000/78 into national law had not yet

expired

Member State may not, during the period prescribed for transposition, adopt measures that may seriously compromise the attainment of the result prescribed by the directive.Slide16

Questions by the National Court (2)

Is Article 6 of Directive 2000/78/EC to be interpreted as precluding a provision of national law, such as the provision at issue in this case, which

authorises

the conclusion of fixed-term employment contracts, without any objective reason, with workers aged 52 or over, contrary to the principle not requiring justification on objective grounds?Slide17

Questions by the National Court (3)

If one of those three questions is answered in the affirmative, must the national court refuse to apply the national provision which is contrary to Community law and apply the general principle of internal law, under which fixed terms of employment are permissible only if they are justified on objective grounds?Slide18

OPINION OF THE ADVOCATE GENERALSlide19

Overview

I. Suggestion that the dispute in the main

proceedings is contrives

II. Directive 1999/70

III. Directive 2000/78

IV. The consequences of the interpretation

adopted by the courtSlide20
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II. Directive 1999/70Slide23

Question 1 (b)

The question is inadmissible

Reasons:

1

. Clause 5 applies where there are

several fixed-term

contracts in

succession

2. 14th Recital, the directive’s purpose: to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationshipsSlide24

Opinion of Advocate General On Question 1 a

Important points:

The chronology of legislative provisions enacted in Germany

The argument by the Commission regarding the admissibility of Question 1 (a)

The explanation by the National CourtSlide25

Question 1 a

The argument of the parties

The explanations from the German

Govnt

:

“The lowering

of the age-limit complained

of was more

than offset by the introduction of new safeguards for fixed-term employees…”Slide26

Question 1 a

The legal nature of the clause:

Non-regression clause: those in recitals and those set out in the body of the directives

It Has binding

legal character according to

the majority

view among legal writers.

Others commentators

, however, regard it as quintessentially politicalSlide27

Question 1 a

The legal nature of the clause:

“a mandatory provision

was intended

, imposing on Member States a full-blown negative obligation

not to

use transposition

as a ground

for reducing the protection already enjoyed by workers under existing national law.”Slide28

Question 1 a

“This

is not

a standstill clause absolutely prohibiting any lowering of the level of protection

that exists

under national law at the time

of implementation

of the directive.” “It is rather, in my opinion, a transparency clause”Slide29

Question 1 a

Implementation:

includes only the first legal instrument or any legislation, including any later ones?

German Government:

only the first implementation (

TzBfG

)

The Advocate General:

Against the interpretation of the German Govnt. Slide30

Question 1 a

“In

the light of all that, and turning

now to the case

in hand, I can say right away

that to

my mind Germany did not violate

Clause 8(3

) by enacting the Hartz Law.”The ground on which the Hartz Law lowered from 58 to 52 the age at which fixed-term contracts may be entered into without restriction was the need to promote the employment of older people in Germany Slide31

Question 1 a

Reasons:

The chronology of legislations, which set age-limits

The report by Government

ComissionSlide32

III. Directive 2000/78Slide33

Question 2

Directive 2000/78/EC:

Article

6: to

determine whether a national

rule such

as Paragraph 14(3) of the

TzBfG

constitutes age-based discrimination would require analysing whether there is a difference of treatment, and, if so, whether it is justified by a legitimate aim and is appropriate and necessary in order to pursue that aimSlide34

Question 2

Before the adoption of Directive 2000/78/EC

The general principle of equality requires that:

“comparable

situations must not be treated differently and

different situations

must not be treated in the

same way

unless such treatment is objectively justified' by the pursuit of a legitimate aim and provided that it 'is appropriate and necessary in order to achieve‘ that aim. ”Slide35

Question 2

The

difference in

treatment based on age is

self evident.

T

here

is an

objective justification, albeit implicit, for that difference.It is more difficult, however, to determine whether that aim has been pursued by appropriate and necessary means.Slide36

Question 2

The age reduction from 55 (from the Report) to 52

Workers

hired on

a fixed-term

basis for the first time

after turning 50

The

national court is right in its view that this goes beyond what is necessary in order to enhance the employability of older workers.Hartz Law applies only until 31 December 2006. The effects?Slide37

Question 2

Answer:

Paragraph

14(3) of the

TzBfG

constitutes full-blown

discrimination

on grounds

of age.Article 6 of Directive 2000/78 and the general principle of nondiscrimination preclude a national rule, such as the provision at issue in this case, which allows persons over the age of 52 to be employed on fixed-term contracts with no restrictions.Slide38
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Incompatability with Community Law

Suggestions by the Advocate General

First suggestion Alternative suggestion

P:

deadline of

transpositon of the

directive not yet

expired

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THE JUDGEMENT OF THE EUROPEAN COURT OF JUSTICESlide43

The Relevant Provisions of Community Law

Directive

1999/70/EC-Framework

Agreement:

Purpose

(clause 1)

Scope (clause 2

)

Measures to prevent abuse (clause 5)Provisions on

implementation

(clause 8

)Slide44

The Relevant Provisions of Community Law

Directive

2000/78/EC:

Recital (8

)

Recital (25

)

Article 1

PurposeArticle 2 Concept of discriminationArticle 6 Justification of differences of treatment on grounds of age

Article 18 Implementation Slide45

Admissibility of the reference for a preliminary ruling

Mr

Helm has publicly argued a case identical to

Mr

Mangold’s

, to the effect that Paragraph

14(3) of the TzBfG is unlawful.Article 234 EC

The

Court

may

, if need

be, examine

the

circumstances in

which the

case was

referred to it by the national court, in

order to

assess

whether it

has jurisdiction.Slide46

Question 1 b

Clause

5(1) of the

Framework Agreement is supposed to

'prevent abuse arising from the use of successive fixed-term employment contracts

..

The parties confirmed at the hearing, the contract is

the

one and only

contract

In

those circumstances, interpretation of Clause 5(1) of the Framework

Agreement

is

obviously irrelevant to the outcome of the dispute

before the national court

and, accordingly

, there is no need to answer Question 1(b).Slide47

Question 1 a

The National court asks the question regarding

TzBfG

, but the case concerns the

Hartz

Law

The argument of

Mr

Mangold and the German GovernmentImplementation cannot be a valid ground.The answer of the court to the questionSlide48

The Answer

1. On a proper construction of Clause 8(3) of the Framework Agreement

on fixed-term

contracts concluded on 18 March 1999, put into effect

by Council

Directive 1999/70/EC of 28 June 1999 concerning the

framework agreement

on

fixed-term work concluded by ETUC, UNICE and CEEP, domestic legislation

such as that at issue in the main proceedings,

which for

reasons connected with the need to

encourage employment and irrespective

of the implementation of

that agreement

, has lowered the

age above

which

fixed-term contracts

of employment may be

concluded without

restrictions, is not contrary to that provision.Slide49

Question 2 & 3

As is clear from the documents sent to the Court by the national court, the

purpose of that legislation

is plainly to promote the vocational integration of

unemployed older

workers, in so far as they encounter considerable difficulties in finding work

.

The legitimacy of such a

public-interest objective cannot reasonably be thrown in doubt

, as indeed the Commission itself has admitted.Slide50

Question 2 & 3

The objective must be justified “objectively and reasonably”

Moreover, the means used to achieve the objective must be “appropriate and necessary”

In this respect the Member States

unarguably enjoy

broad discretion in their

choice of

the measures capable of attaining their objectives

in the

field of social

and employment

policySlide51

Question 2 & 3

All workers who have reached the age of 52 fall under application of the national legislation

Therefore, these people are in danger of being excluded from the benefit of stable employment

The principle of proportionality was not followed, thus the national legislation cannot be justified under Article 6 (1) of Directive 2000/78Slide52

Question 2 & 3

The issue of the deadline of the transposition

R1: the MS must refrain from taking any measures liable seriously to compromise the achievement of the result prescribed by the directive

R2: The MS shall report on the progress they are making towards implementation of the directive

R3: People like

Mr

Mangold

will still be falling within the national provision, when the deadline comes for transposition comes to an endSlide53

Question 2 & 3

In the second place and above all,

Directive 2000/78

does not itself lay down

the principle

of equal treatment in the field of employment

and occupation

the source

of the actual principle underlying the prohibition of those forms of discrimination is found in various international instruments and in the constitutional traditions common

to the

Member States.Slide54

The Answer

2. Community law and, more particularly, Article 6(1) of Council

Directive 2000/78/EC

of 27 November 2000 establishing a general framework

for equal

treatment in employment and occupation must be interpreted

as precluding

a provision of domestic law such as that at issue in the

main proceedings which authorises

,

without restriction

, unless there is a

close connection

with an

earlier contract

of employment of indefinite

duration concluded

with

the same

employer, the conclusion of fixed-term

contracts of employment

once the worker has reached the age of 52

.

It is the responsibility of the national court to guarantee the

full effectiveness

of the general principle of non-discrimination

in respect of age

, setting aside any provision of national law which may conflict

with Community

law, even where the

period prescribed

for transposition of

that directive

has not yet expired.Slide55

Impact on National LawSlide56
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Conclusion and reflections