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The Politics of Constitutional Identity and its Legal Frame—-the Ultra Vires Decision of the German Federal Constitutional Court

Published online by Cambridge University Press:  06 March 2019

Matthias Mahlmann

Extract

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Since the ECJ handed down the Mangold v. Rüdiger Helm (Mangold) decision in 2005, scholars have provided sometimes quite far reaching and sharp critiques of the decision and of what they took to be its consequences for European Union law. The decision concerned several questions, but the core issue was the applicability of (then) Community (now European Union) age-based anti-discrimination law in the case of a fixed-term employment contract. The contract at issue was based on a law that allowed fixed-term contracts without demanding objective reasons justifying the limitation of the period of employment beyond the age of 52. The law is enmeshed in the political problem of including people older than 52 in the workforce without depriving them of secure working conditions. The legal issue was complicated by the fact that the transposition time of the relevant directive 2000/78/EC including the prohibition of discrimination on the ground of age had not yet expired because of a permissible extension of that time by Germany. The ECJ declared the relevant norm to be contrary to Community law and thus not applicable in the case at hand. It applied the directive in question despite the still pending time limit for transposition, arguing with the requirement under Community law that Member States refrain from taking any measures liable to seriously compromise the attainment of the result prescribed by the directive. It buttressed its argument with the duty to report about the progress made during the extended transposition time. This provision was held to imply that the Member State was not allowed to adopt measures incompatible with progressive implementation. Furthermore, the ECJ interpreted the prohibition of age discrimination as an expression of a fundamental principle of Community law: the principle of equal treatment in the field of employment and occupation. Applying a proportionality test, the court found this foundational principle to have been violated. The ECJ also underlined the broad discretion the Member States retained in the field of social and employment policies. Because the provision's only criterion for allowing fixed-term contracts without an objective reason was age, without any other consideration linked to the structure of the labor market in question or of the personal situation of the person concerned, the Court found that even in light of this broad discretion, the respective norm was not appropriate and necessary to vocationally integrating unemployed older workers, which formed the purpose of the norm.

Type
Developments
Information
German Law Journal , Volume 11 , Issue 12 , December 2010 , pp. 1407 - 1420
Copyright
Copyright © 2010 by German Law Journal GbR 

References

1 Case C-144/04, Werner Mangold v Rüdiger Helm, 2005 E.C.R. I-9981 [hereinafter Mangold case].Google Scholar

2 Paragraph 14 (3) Law On Part-Time Working and Fixed-Term Contracts (Gesetz über Teilzeit und befristete Arbeitsverträge) (BGBl. 2000, p. 1966) as amended by the First Law for the Provision of Modern Services on the Labour Market of 23 December 2002 (BGBl. 2002 I, p. 14607).Google Scholar

3 Art. 18 EC Directive 78 of 27 November 2000, O.J. 16 L 303 establishing a general framework for equal treatment in employment and occupation.Google Scholar

4 Mangold, para. 78.Google Scholar

5 Id. at para. 67. This principle was established in Case C-129/96, Inter-Environnement Wallonie ASBL v. Region Wallone, 1997 E.C.R. I-7411, para 45.Google Scholar

6 Mangold, paras. 71–72.Google Scholar

7 Mangold, paras. 74–76.Google Scholar

8 Mangold, para. 65.Google Scholar

9 BVERFG, 2 BvR 2661/06, 6 July 2010. English version available at http://www.bverfg.de/entscheidungen/rs20100706_2bvr266106en.html.Google Scholar

10 Bundesarbeitsgericht [Federal Labor Court], Case 7 AZR 500/04, April 26, 2006.Google Scholar

11 BVerfG, Case No. 2 BvE 2/08, headnote 5 (June 30, 2009), http://www.bverfg.de/entscheidungen/es20090630_2bve000208en.html:Google Scholar

The Federal Constitutional Court examines whether legal instruments of the European institutions and bodies keep within the boundaries of the sovereign powers accorded to them by way of conferral (see BVerfGE 58, 1 <30–31>; 75, 223 <235, 242>; 89, 155 <188>: see the latter two concerning legal instruments transgressing the limits), whilst adhering to the principle of subsidiarity under Community and Union law (Article 5.2 ECT; Article 5.1 second sentence and 5.3 of the Treaty on European Union in the version of the Treaty of Lisbon (Lisbon TEU). Furthermore, the Federal Constitutional Court reviews whether the inviolable core content of the constitutional identity of the Basic Law pursuant to Article 23.1 third sentence in conjunction with Article 79.3 of the Basic Law is respected (see BVerfGE 113, 273 <296>). The exercise of this review power, which is rooted in constitutional law, follows the principle of the Basic Law's openness towards European Law (Europarechtsfreundlichkeit), and it therefore also does not contradict the principle of sincere cooperation (Article 4.3 Lisbon TEU); otherwise, with progressing integration, the fundamental political and constitutional structures of sovereign Member States, which are recognised by Article 4.2 first sentence Lisbon TEU, cannot be safeguarded in any other way. In this respect, the guarantee of national constitutional identity under constitutional and under Union law go hand in hand in the European legal area.

12 For some comments on that matter, see Mahlmann, Matthias, Gleichbehandlungsrecht, 33 et seq., 87 et seq. (2007).Google Scholar

13 BVerfG, Case No. 2 BvR 2661/06, para. 48 et seq. (July 6, 2010), http://www.bverfg.de/entscheidungen/rs20100706_2bvr266106en.html.Google Scholar

14 Id. at para. 55 (internal quotations omitted).Google Scholar

15 Id. at para. 57.Google Scholar

16 Id. at para. 61 (referencing the concurring German legal literature).Google Scholar

17 Id. at para. 65.Google Scholar

18 Id. at para. 64.Google Scholar

19 Id. at para. 66.Google Scholar

20 Id. at paras. 72–74.Google Scholar

21 Id. at paras. 76–77.Google Scholar

22 Id. at para. 78–79.Google Scholar

23 Id. at headnote 1, para. 60.Google Scholar

24 Id. at para. 86.Google Scholar

25 Id. at headnote 2, para. 85.Google Scholar

26 The Federal Labor Court (Bundesarbeitsgericht) had denied a protection of legitimate expectations in favour of the complainant irrespective of EU law. It argued with the lack of prior rulings by the Federal Labor Court regarding the permissibility of a fixed-term contract based solely on age without objective reasons and the lack of consensus on the matter in legal literature. See Bundesarbeitsgericht [Federal Labor Court], Case 7 AZR 500/04, April 26, 2006.Google Scholar

27 BVerfG, Case No. 2 BvR 2661/06, para. 92 (July 6, 2010),http://www.bverfg.de/entscheidungen/rs20100706_2bvr266106en.html Google Scholar

28 BVerfG, 1 BvR 230/09, para. 20–21 (Feb. 25, 2010), http://www.bverfg.de/entscheidungen/rk20100225_1bvr023009.html.Google Scholar

29 BVerfG, Case No. 2 BvR 2661/06, para. 95 et seq. (July 6, 2010), http://www.bverfg.de/entscheidungen/rs20100706_2bvr266106en.html Google Scholar

30 Id. at paras. 101–102.Google Scholar

31 Id. at para. 103.Google Scholar

32 Id. at paras. 105–113.Google Scholar

33 Id. at para. 116.Google Scholar

34 See, e.g., Dieter Grimm, Die groe Karlsruher Verschiebung, Frankfurter Allgemeine Zeitung, available at http://www.faz.net/-01hz2b.Google Scholar

35 Case C-555/07, Seda Kücükdeveci v. Swedex GmbH & Co. KG (Jan. 19, 2010). The Court stated that the “Directive 2000/78 merely gives expression to, but does not lay down, the principle of equal treatment in employment and occupation, and that the principle of non-discrimination on grounds of age is a general principle of European Union law in that it constitutes a specific application of the general principle of equal treatment.” Id. at paras. 20, 50. On the matter see Skouris, Methoden der Grundrechtsgewinnung in der EU, in Handbuch der Grundrechte, Vol. VI/1, § 157, 21–24 (Merten & Papier eds., 2010).Google Scholar

36 Case C-147/79, Hochstrass v. European Court of Justice, 1980 E.C.R. I-3005. The argument of the ECJ in Mangold has not made the doctrinal construction very transparent, which is a general problem of the ECJ jurisprudence in comparison with more discursive traditions of other courts. From the context, however, it seems rather clear that the central principle that is the base of argumentation is the principle of equal treatment in the field of employment and occupation, not only the prohibition of discrimination of age. The derivation of the principle of non-discrimination on the ground of age is a consequence of this principle of equal treatment, as others on the ground of religion or belief, disability, age or sexual orientation. See id. at para 75. The court could have made clearer how the principle of equal treatment in the field of employment and occupation is derived from international instruments and constitutional traditions. One way would be to explicitly include the general principle of equal treatment (not only in the field of employment and occupation) into the doctrinal construction. This principle, it seems, is the content of recital 3 (principle of equal treatment) and 4 (right of all persons to equality before the law) of the Directive the ECJ refers to in Mangold at paragraph 74 and found in the legal orders of the Member States. This principle is the object of the international treaties and constitutional traditions the court refers to as well. The argument that there are no international instruments on age discrimination or many constitutional traditions of that kind (this argument is, for example, discussed by the Federal Constitutional Court, see BVerfG, 2 BvR 2661/06, 6 July 2010, para. 78) then loses its doctrinal force. For an example for the complexities of reconstructing what national constitutional traditions actually mean, see infra the remarks on Art. 3.1 of the Basic Law.Google Scholar

37 Matthias Mahlmann, 1789 Renewed? Prospects of the Protection of Human Rights in Europe, 11 Cardozo J. of Int'L & Comp. Law 903 (2003–2004).Google Scholar

38 BVerfGE 1, 14 (52); 25, 101 (105).Google Scholar

39 BVerfGE 88, 87 (96); BVerfG, 1 BvR 611/07, para. 84 (July 21, 2010), http://www.bverfg.de/entscheidungen/rs20100721_1bvr061107.html.Google Scholar

40 See Case C-17/05, Cadman v. Health and Safety Executive, 2006 E.C.R. 1–9583, paras. 26–40: length of service legitimate criterion for unequal treatment; no obligation to establish specifically that recourse to that criterion is appropriate to attain that objective as regards a particular job, unless the worker provides evidence capable of raising serious doubts in that regard; no need to show that an individual worker has acquired experience during the relevant period which has enabled him to perform his duties better (on Art. 141 EC); Case C-411/05, Felix Palacios de la Villa v. Cortefiel Servicios SA, 2007 E.C.R. 1–8531, para. 77): compulsory retirement clauses contained in collective agreements acceptable where such clauses provide as sole requirements that workers must have reached retirement age, set at 65 by national law, and must have fulfilled the conditions set out in the social security legislation for entitlement to a retirement pension under their contribution regime; Case C-388/07, Age Concern England v. Secretary of State for Business, Enterprise and Regulatory Reform, 2009 E.C.R. 1–1569, para. 68: no preclusion of a national measure which does not contain a precise list of the aims justifying derogation from the principle prohibiting discrimination on grounds of age. Derogation from that principle only in respect of measures justified by legitimate social policy objectives, such as those related to employment policy, the labor market or vocational training; burden of proof of legitimacy of the aim relied on for justification; Case C-88/08, Hütter v. Technische Universität Graz, 2009 E.C.R. 1–5325, para. 52: preclusion of a national legislation which, in order not to treat general education less favourably than vocational education and to promote the integration of young apprentices into the labor market, excludes periods of employment completed before the age of 18 from being taken into account for the purpose of determining the incremental step at which contractual public servants of a Member State are graded; Case C-229/08, Colin Wolf v. Stadt Frankfurt am Main (Jan. 12, 2010), para. 48: maximum age for recruitment to intermediate career posts in the fire service at 30 acceptable; Case C-341/08, Petersen v. Berufungsausschuss für Zahnärzte für den Bezirk (Jan. 12, 2010), para. 82: preclusion of setting a maximum age for practising as a panel dentist where the sole aim of that measure is to protect the health of patients against the decline in performance of those dentists after that age, since that age limit does not apply to non-panel dentists; regulation admissible, however, the aim of which is to share out employment opportunities among the generations in the profession of panel dentist, if, taking into account the situation in the labor market concerned, the measure is appropriate and necessary for achieving that aim; Case C-555/07, Seda Kücükdeveci v. Swedex GmbH & Co. KG, para. 57 (Jan. 19, 2010): preclusion of not taking into account periods of employment completed by an employee before reaching the age of 25 in calculating the notice period for dismissal; Case C-499/08, Ingeniorforeningen i Danmark acting on behalf of Ole Andersen & Region Syddanmark, para 50 (Oct. 12, 2010): preclusion of national legislation pursuant to which workers who are eligible for an old-age pension from their employer under a pension scheme which they have joined before attaining the age of 50 years cannot, on that ground alone, claim a severance allowance aimed at assisting workers with more than 12 years of service in the undertaking in finding new employment; Case C-45/09, Gisela Rosenbladt v Oellerking Gebäudereinigungsges, para 81 (Oct. 12, 2010): clauses on automatic termination of employment contracts on the ground that the employee has reached the age of retirement valid.Google Scholar