Nadine Zeibig
Europe has long been considered an international community based on solidarity and peace; more recently the financial and economic crisis as well as measures/decisions taken by EU institutions have led to reduced confidence in Europe and in particular in a social Europe. It can be read in newspapers and specialist publications that the EU Commission and ECJ rulings are a licence for social dumping (Fritz Scharf 2008) or that “social Europe is not taking place” (Höpner 2008). ECJ rulings have also been the subject of substantial criticism in the member states; examples include “Usurpation instead of delegation – How the ECJ radicalises internal market integration and why political control is required” (Höpner 2012), “Is the ECJ weakening trade unions?” (Vorbau 2010) and “Scandalous judgements that jeopardise peace in Europe” (Sommer 2008). In particular, the ECJ rulings in 2007 and 2008 in the cases Viking, Laval, Rüffert and Commission versus Luxembourg clearly demonstrate that especially in the area of collective labour law the ECJ gives priority to fundamental economic freedoms over fundamental social rights.
ECJ rulings on questions of age discrimination are also seen critically in Germany. Numerous age-related statutory, collectively bargained and employment contract provisions exist in Germany that are linked to the establishment, design and termination of employment contracts. These include, for example, age-related salaries, age-related periods of notice, special protection against dismissal for older workers and graduated holiday entitlement according to age. Several of these age-related rules, which for years were seen as socially acceptable and proportionate, have been classified by the ECJ as inadmissible age discrimination since the European antidiscrimination directives came into force, because the Directive 2000/78/EC and Art. 21 EU Charter of Fundamental Rights prohibit age discrimination.
ECJ rulings are inconsistent regarding questions of age discrimination, so that the negotiation and creation of age-related provisions lack legal certainty in terms of assessing the lawfulness of these rules (for details see Zeibig, WSI-Mitteilungen 5/2013). They are also frequently less rigorous than for questions of discrimination on grounds other than age. Unlike Art. 6 of Directive 2000/78/EC, which merely demands that objectives must be legitimate to justify age-related unequal treatment, the ECJ generally only permits social policy objectives, i.e. objectives from the realms of employment policy, labour market and vocational training (e.g. to promote job creation, intergenerational equity) to be classed as a legitimate aim within the meaning of Art. 6 of Directive (C-447/09; C-159/10; C-388/07). In questions concerning the admissibility of automatic termination of employment relationships on reaching the statutory retirement ages, the ECJ bases some decisions about the issue of proportionality on whether the pension obtained was for an appropriate amount (C-411/05). In other decisions the amount of pension to be paid was irrelevant despite a disproportionately low pension (C-45/09) while in yet further rulings it was sufficient for proportionality that a pension covered basic needs (C-141/11). The partial lack of rigour by the ECJ on the justification of unequal treatment based on age is shown by the fact that on a number of occasions it ruled that the necessity and proportionality of “compulsory retirement regulations” were already given if they were “not unreasonable” with respect to achieving the objectives pursued (C-45/09).
The ECJ Mangold ruling relating to Germany (C-144/04) adopted in 2005 was also strongly criticised. Here the ECJ ruled that Section 14 III of the Act on Part-Time Work and Fixed-Term Contracts (TzBfG) (old version), which provided for fixed term employment contracts of up to five years without objective justification for older workers, is contrary to European law even though the deadline to transpose Directive 2000/78/EC, which regulates the ban on discrimination, had not yet expired for Germany at that time. The ECJ elevated the principle of the ban on age discrimination in this ruling to a general principle of EU law, which then enabled it to declare that the German law was contravening European law. Many believe that, in the process of interpreting the law, the ECJ unfairly usurped legislative powers and was not entitled to do so; ultimately the Federal Constitutional Court in Germany ruled that the ECJ had not overstepped its competencies (BVerfG 2 BvR 2661/06). The ECJ made a similar ruling in the Kücükdeveci case related to Germany, ruling that Section 622 of the German Civil Code (BGB), which states that employment with a company before the age of 25 shall not be taken into consideration when calculating periods of notice, is incompatible with EU law. Whilst the obligations arising from the Directive governing the ban on age discrimination applied to member states, the primary legal principle of age discrimination also applied between private individuals, and therefore also between employer and employee, according to the ECJ (C-555/07).
With reference to the question of possible age discrimination, the ECJ had to make a decision, also regarding Germany, on the issue of the admissibility of automatic termination of employment on workers reaching certain ages. For reasons of intergenerational equity, the ECJ deems national agreements which provide for the automatic ending of employment on reaching the statutory retirement age to fundamentally comply with European law (C-159/10; C-45/09). It also viewed regulations which provide for dismissal by the employer irrespective of the wish of the employee when the latter reaches the statutory retirement age to be permissible (C-388/07; C-141/11). The ECJ also deemed fixing the maximum age for appointing civil servants in the fire service to just 30 years to be compatible with European law; the requirement for full physical fitness for intermediate technical occupations in the fire service necessitated a restriction of this kind (C-229/08). By contrast, the Federal Office of Public Health (BAG) viewed the standard maximum age limit of 32 years and 364 days for the appointment of pilots trained in other airlines to constitute a breach of the ban on age discrimination on the grounds of inadmissible disadvantaging of older people (BAG 7 ABR 98/09).
The ECJ also had to rule on numerous other cases of possible age discrimination. For example, the ECJ classified the salary regulations applied in Germany in the collective agreement for salaried federal employees (BAT) up to the end of 2005 to be inadmissible age discrimination against younger workers, because the amount of salaries was primarily based on age and not sufficiently on professional experience (C-297/10). In a Danish referral procedure, regulations that exclude workers close to retirement age from redundancy payments irrespective of their wish to continue working were classified by the ECJ as inadmissible discrimination against older workers (C-499/08).
These reports indicate the scope of ECJ rulings. Fundamental critics of ECJ jurisdiction take the view that the only way to escape the influence of ECJ jurisdiction is not to follow the ECJ rulings (Scharpf 2008). According to the opinion represented here, the impact of ECJ jurisdiction is ambivalent. In many areas, especially concerning individual labour law, it strengthens workers’ (protection) rights, thereby making a substantial contribution to a social Europe; however in other areas, especially in the area of collective labour law, it sometimes produces dubious rulings that are not in the interests of workers and the parties to collective agreements. Not following the ECJ or giving up and leaving the EU cannot be the solution, despite some problematic rulings. Rather, the aim must be to campaign for a social Europe. In future it will also be essential for the legitimisation of the ECJ that it does not engage in the inadmissible further development of law, does not prioritise fundamental economic freedoms over fundamental social rights, shows due regard for national specificities, uses objective grounds as a basis for restricting workers’ rights and adequately considers existing discretionary powers of the collective bargaining parties when establishing collective labour agreements. Otherwise a stop must be put to it.
This article is part of the EU Social Dimension expert sourcing project jointly organised by SEJ, the ETUC, IG Metall, the Hans Böckler Stiftung, the Friedrich-Ebert-Stiftung and Lasaire.