Thursday 11 February 2010

Kücükdeveci - A European case

If you believe the comments of bloggers from all over Europe, the Kücükdeveci case (C-555/07) in front of the European Court of Justice might have been both, another milestone in the legal primacy of EU law over national law and a precedent for the importance of the Charta of Fundamental Rights after the ratification of the Lisbon Treaty.

The case in itself is already a European case with a lot of European topics:

Seda Kücükdeveci, a German citizen (apparently a (Turkish) immigration background) in her twenties has been dismissed (youth unemployment) by a company that calls itself a European supplier (internal market) of communication materials. She has been going to court because she claims that the conditions of her dismissal were discriminatory (anti-discrimination).

Funny enough, the discrimination did not come on grounds of her gender or her immigrant background, but based on her age, based on the fact that she was younger than 26.

According to German law, her employer was right, according to EU law, the conditions were discriminatory, so the EU court found that:
"[T]he principle of non-discrimination on grounds of age as given expression by Directive 2000/78, must be interpreted as precluding national legislation"
and the judges went even further and became more clear:
"By reason of the principle of the primacy of European Union law, which extends also to the principle of non-discrimination on grounds of age, contrary national legislation which falls within the scope of European Union law must be disapplied"
But the case is not only a European case because it involves the EU court and European legal principles, it is also dealt with by European and national bloggers from different member states.

The main players are the bloggers from Adjudicating Europe who did not only pre-warn readers that an important ruling was about to come up - which prompted a direct reaction by the German Verfassungsblog - but they also follow-up with a brilliant series of articles discussing the effects as well as the pros and cons of the ruling:

Blogger Eurostein concludes in his article "Mangold II":
"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."
Pescatories, referring to the fact that the Court used the Charta of Fundamental Rights for his reasoning although the case is pre-Lisbon underlines in his article "Making History, Making Law":
"[T]he 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.
and he ends his post with the bold statement
Long live Kücükdeveci. And long live (very long, please) the European Court of Justice.
And in the third post of the series titled "In Defence of Paragraph 22", Cartesio also underlines the new importance of the Charta of Fundamental Rights in the EU's legal system:
"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…"
The bloggers from EU Law (Typepad), who link to the three articles mentioned above, summarise the ruling, starting from the conclusion that
"The Court of Justice has handed down a major judgment on the horizontal direct effect of directives."
and also Bulgarian euroblogger Viharg in his blog EU Law (Wordpress) finds that
"[t]his is really interesting, because the ECJ actually says that any directive can “give expression” to a general principle of EU law, and thus have horizontal direct effect."
(there is also a Bulgarian version of the article)
At the bloggers of The European Journal, Margarida took the time to write an extensive article about the case, highlighting that
"[t]his is another example of the ECJ expanding the scope of EU law.

In this case, a Directive giving expression to a general principle of EU law, prohibition of discrimination on the grounds of age, applies to a national horizontal situation binding not only the Member States but also individuals and due to the primacy doctrine national courts must not apply the national provision contrary to the general principle as expressed in the directive.

Hence, the provisions of directives expressing general principles of European Union law have full direct effect, even in horizontal situations.
As I have noted short after the ruling was published some weeks ago, Verfassungsblog predicted that this ruling will cause an "arms race" between the German Constitutional Court and the European Court of Justice. The seriousness of this argument is taken up by the Kartellblog, checking how the case of Kücükdeveci could effect cartel adjudication.

Other German blogs, like Das letzte Wort have critically noted that Kücükdeveci is another example of the idiosyncratic jurisprudence of the EU court. Michael Rahe in his blog also seems to be mildly critical, putting the case into the context of the rather negative perception of the Mangold II case.

But the case has not only been noticed by eurobloggers and German bloggers, but also received notice in the Dutch Belgian Sociaalrecht Blog as well as in the Romanian Antidiscriminare Blog. The Eurosceptic UK blogger The Boiling Frog doesn't "hold much hope" that the German Constitutional Court will be able to withstand the European court's powers. And the discussions at Adjudicating Europe and European Union Law summarised earlier are even noted in the Hungarian blog Jogvélemény.

French blog Combats pour les droit de l'homme also published a short article on the case, and in a post by the Journal du Marché Intérieur there is an interesting comment by Romain who challenges all those who see this case as an example of "direct effect" of EU law, claiming that it is "just" an example of the primacy of EU law:
"De mon point de vue, cet arrêt reconnaitrait plutôt l'invocabilité d'exclusion d'un directive dans un litige entre particuliers. Il n'est absolument pas certain qu'il soit question ici d'effet direct. Le principal apport serait alors que la Cour généralise l'hypothèse posée dans son arrêt Unilever s'agissant de "l'effet procédural" des directives. Il s'agirait alors d'une preuve supplémentaire de la distinction entre effet direct et invocabilité..."
So we have European and national blog reactions (plus the comments to all these posts) from more than eight countries on a case that is European in content and European in scope - a strong example of an emerging European public sphere and the existence of a European blogosphere as well!

Update: Magdalena from ECJ Watch published an article on Kücükdeveci this evening and, as many others, she shares the view that this case is exceptional:
"Kucukvedeci is about so much more than age disrimination. It is also about the effect of directives containing fundamental principles of EU law [...]. As we know, directives do not have horizontal direct effects. Or do they now? Here we are dealing with a Directive establishing a Fundamenal Principle of EU law, and this one WAS HELD TO BE DIRECTLY EFFECTIVE IN A HORIZONTAL SITUATION!"
That was more than explicit...!

Update 2: The Blog aproximativ juridic continues the debate, putting Kücükdeveci and the idea of direct effect into the Romanian legal context.

Update 3: Via @vihargg I found this comment on the case in the German Law Journal.

Update 4: discusses the effects of the Kücükdeveci case on the legal impact of the Charta of Fundamental Rights.


TheBoilingFrog said...

Thanks for the link Julien

Julien Frisch said...

You're welcome - thanks for blogging about the topic!

K. Nevens said...

One small comment unrelated to the case as such: Sociaalrecht Blog is not a Dutch blog, but a Belgian blog (in Dutch/Flemish).

Julien Frisch said...


Corrected... :-)