Anti-...WHAT?

You want to hear a good joke? Yes?! Here it comes: "Progress Report"!

The first time that I wrote about this proposal for a new anti-discrimination directive was in August 2008; the proposal itself is from 2 July 2008, the second day of this blog. I've followed up with two more blog posts in December 2008 and in July 2009.

When you look into the progress report linked above, it doesn't seem like there has been any real progress since 2008.

In my first post about the draft directive in August 2008 I said: "Looks like this document will have some way to go."

I admit that I had underestimated the sense of "long way to go" at that time.

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: Humanrights.ie discusses the effects of the Kücükdeveci case on the legal impact of the Charta of Fundamental Rights.

ECJ: European legislation on anti-discrimination precludes national legislation

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UPDATE: See the summary of blog reactions on Kücükdeveci from all over Europe that I have collected.

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In what Adjudicating Europe prescribed as an important ruling on Sunday, the European Court of Justice (ECJ) has today decided in the case of Kücükdeveci that EU legislation on anti-discrimination on the grounds of age precludes any contradictory national legislation.

Here is what the Court decided:

"1. European Union law, more particularly the principle of non-discrimination on grounds of age as given expression by 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 national legislation, such as that at issue in the main proceedings, which provides that periods of employment completed by an employee before reaching the age of 25 are not taken into account in calculating the notice period for dismissal.

2. It is for the national court, hearing proceedings between individuals, to ensure that the principle of non-discrimination on grounds of age, as given expression in Directive 2000/78, is complied with, disapplying if need be any contrary provision of national legislation, independently of whether it makes use of its entitlement, in the cases referred to in the second paragraph of Article 267 TFEU, to ask the Court of Justice of the European Union for a preliminary ruling on the interpretation of that principle."

The German constitutional law blog Verfassungsblog.de, referring to the Adjudicating Europe blog post, had predicted that this ECJ ruling (the case is from Germany) would turn out differently, arguing that the ECJ would not like enter into a conflict with the German Constitutional Court.

Just to remember (a little simplified but valid): In his ruling on the Lisbon Treaty last year, the German Constitutional Court had made clear that it reserves itself the right to have a final word on EU legislation of whatever kind, and the ruling of the ECJ today is a clear attack on these self-proclaimed powers.

The Verfassungsblog today admits that the prediction was wrong and that we might now see an arms race between the two courts.

Looks like legal experts in EU law both on the European and national level will have some fun discussions over the time to come - but for EU citizen Seda Kücükdeveci it means that her rights have been violated and that she thus should get adequate compensation.

Commission staff statistics: The gender gap

I just came across this lovely site with the Commission's staff statistics (via Dan Luca).

The blogger's instinct told to look into the sheets that separated gender and administrative grades, and it was immediately obvious that the institution heavily lobbying for gender equality has a massive gender gap in its upper ranks:

Only 2 out of 37 (5.4%) top administrative ranks (category AD16) in the European Commission are filled with females, and with 49 out of 235 (20.9%) for AD15 or 66 out of 431 (15.3%) for AD14 - these three ranks cover directors and directors-general - the next two ranks do not look very gender-balanced either.

I suppose somebody has some beautiful statistics how much better the situation has become over the last years, and I know that these upper ranks are filled with life-time officials which makes it hard to push for a rapid change, but what about credibility when it comes to the fight for gender equality, e.g. with regard to the new anti-discrimination directive, if the Commission cannot serve as a positive example?

And where are the Swedish Presidency and the European Parliament who should push the Commission on these issues?

The new EU anti-discrimination directive: Arghh!

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In the ongoing procedure around the setting up of an EU Council directive on

"implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation"

the Swedish EU Council presidency has presented drafting suggestions that to me look like both, strengthening and weakening the text.

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In some paragraphs, stronger formulations on what constitutes a case of anti-discriminations are proposed while in other paragraphs the independence of the member states is strengthened or certain cases are excluded from being considered as discrimination.

My "favourite" paragraph is 17h (new), which I would call the "Ireland-paragraph", especially since the Swedish presidency just proposed to include the words "and adoption":

"This Directive does not apply to matters covered by family law including marital status and adoption, and laws on reproductive rights. It is also without prejudice to the secular nature of the State, state institutions or bodies, or education. Moreover, this Directive is without prejudice to the powers of the Member States to organise their social security and health care schemes in such a way as to guarantee their sustainability."

After a short glance through these drafting proposals, I have the feeling that this directive will become a monster full of good intentions but with an infinite number of in-built misunderstandings and shortcomings that will haunt us for years as soon as it is adopted.

If I may say so: It will look like a typical legal document that went through the hands of the member states while letting too many lobbyists have their word to say.

Related articles:

• 14 July 2009: The new EU anti-discrimination directive: Arghh!

Follow-up: New EU anti-discrimination directive

In August, I have reported about the proposed new EU anti-discrimination directive, and the Council has now published a follow-up progress report.

To make a long story short, it still looks as if this document (the new directive) will still have a long way to go:

"For the time being, all delegations have maintained general scrutiny reservations on the proposal. [...] The Commission has meanwhile affirmed its original proposal at this stage and has maintained scrutiny reservations on any changes thereto."

The European Parliament is expected to give its opinion on 29 March 2009, and within the Council a number of issues have been raised by member states that will have to be dealt with:

• the potential financial and administrative burden imposed by the provisions, particularly regarding SMEs and the self-employed; 

• the concept of discrimination by association; 

• the issue of gender mainstreaming and the question of multiple discrimination; 

• national legislation ensuring the secular nature of the state and measures concerning the wearing of religious symbols in schools; and 

• the length of the implementation period(s). 
  

Altogether, there is not much movement in this matter; in contrary, even more questions and reservations seem to appear, which might well prolong the whole process.

New EU anti-discrimination directive

Upon a proposal issued by the Commission in July, the Council of the European Union is discussing a new anti-discrimination directive.

The Commission document titled

"Implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation"

wants to supplement "the existing EC legal framework under which the prohibition of discrimination on grounds of religion or belief, disability, age or sexual orientation applies only to employment, occupation and vocational training." You can find the Commission proposal from page 17 of the linked PDF file.

In a recently published document, the state of discussion in the EU Council is presented comprehensively. However, it is a pity that the positions of individual countries have been erased from the public version. What we know is the following:

All [member states'] delegations have general scrutiny reservations on the proposal at this stage. [Denmark], [France], [Malta] and [Poland] entered parliamentary scrutiny reservations. [Cyprus] entered a linguistic scrutiny reservation.

The proposed directive was also included in the documentation of an extraordinary meeting of the European Parliament Committee on Employment and Social Affairs (website) in July. So the Parliament should also be aware of this policy proposal.

Looks like this document will have some way to go.

Related articles:

• 11 December 2008: Follow-up: New EU anti-discrimination directive
• 14 July 2009: The new EU anti-discrimination directive: Arghh!