Case C14404 Facts and Case Position of the National Judge and Questions There are three basic types of EU legislation regulations directives and decisions A regulation is similar to a national ID: 581939
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Slide1
Mangold CaseC-144/04Slide2Slide3
Facts and CaseSlide4Slide5Slide6Slide7
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 courtSlide20Slide21Slide22
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.Slide38Slide39Slide40
Incompatability with Community Law
Suggestions by the Advocate General
First suggestion Alternative suggestion
P:
deadline of
transpositon of the
directive not yet
expired
Slide41Slide42
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 LawSlide56Slide57Slide58Slide59Slide60Slide61Slide62
Conclusion and reflections