EU anti-discrimination law: ten “easy” steps to disapplying inconsistent national provisions


Anna Beale looks at recent guidance from the CJEU in the context of age discriminatory provisions of Danish domestic law in Rasmussen.

A constant theme in EU law is the extent to which EU provisions can be relied upon by domestic courts to interpret or disapply domestic law.  The case of Dansk Industri v Estate of Karsten Eigil Rasmussen (C-441/14) is an important addition to this jurisprudence, fully explaining the effect of EU age discrimination law in cases where both parties are private individuals.

Rasmussen concerned a provision of Danish law under which individuals continuously employed in the same undertaking for particular periods of time were entitled to a severance allowance.  The law also provided that no such severance allowance would be payable if the employee had joined the employer’s pension scheme before reaching the age of 50, and would receive an old age pension from the employer on termination.  Mr Rasmussen was in this position, and contended that the failure to pay him a severance allowance constituted age discrimination.

The Danish Supreme Court referred two questions to the CJEU which, in essence, asked:

  1. whether the “general EU law principle” prohibiting age discrimination precluded the legislation which denied Mr Rasmussen his severance allowance; and
  2. whether the Danish court could nevertheless find that the employer was not bound to pay the allowance, taking into account the principle of legal certainty and the availability of Francovich compensation.

The Court held that the “general principle prohibiting discrimination on grounds of age”, as recognised in case C144/04 Mangold v Helm [2005] ECR I-9981 and case C-555/07 Kücükdeveci v Swedex GmBH & Co KG [2010] 2 CMLR 33, was given concrete expression by Directive 2000/78, and the scope of protection conferred by the Directive was co-extensive with that afforded by the general principle.  In order for the general principle to be applicable to Mr Rasmussen’s situation, his claim had to fall within the scope of EU law as laid down in the Directive.  On the basis of earlier CJEU decisions, the Court held that both the Directive and the general principle precluded the legislative provision at issue in Mr Rasmussen’s case. 

The Court went on to consider the question of whether, in effect, the Danish court was obliged to disapply the offending legislation in a claim which was not brought against the state or a public body, but against a private employer.

The Court set out the following principles (conveniently ten in number) which fall to be applied in dealing with national legislation that is inconsistent with EU law:

1      Where national courts are called on to give judgment in proceedings between individuals in which it is apparent that the national legislation at issue is contrary to EU law, it is for those courts to provide the legal protection which individuals derive from the provisions of EU law and to ensure that those provisions are fully effective.

2      The Court has consistently held that, in relation to disputes between individuals, a Directive cannot of itself impose obligations on, and be relied upon against, such an individual.

3      However, member states have an obligation to achieve the result envisaged by that Directive and to take all appropriate measures to ensure the fulfilment of that obligation.

4      Thus in interpreting national law, domestic courts are required to interpret that law so far as possible in the light of the wording and purpose of the Directive, in order to achieve the result sought by the Directive.

5      This principle of interpretation does have limits: it cannot serve as the basis for an interpretation of national law contra legem (i.e. against the clear law).

6      However, the fact that national courts have consistently interpreted a particular provision in a particular way does not of itself render it impossible to interpret that provision in a manner that is compatible with EU law.

7      Further, in cases where the dispute involves the application of the general principle prohibiting discrimination on grounds of age, that principle confers an individual right which may be invoked even in disputes between private persons.

8      Thus in such cases, where the court considers it impossible to interpret the national provision in a manner consistent with EU law, the national court must disapply that provision.

9      This conclusion is not negatived by the principle of legal certainty/the protection of legitimate expectations, as this would have the effect of limiting the temporal effects of the Court’s interpretation (judgments of the CJEU are generally regarded as “clarifying and defining” the scope of the law as it ought to have been understood and applied from the time of coming into force, and are thus “retroactive” in that sense).

10   Nor is it negatived by the availability of Francovich compensation.

The CJEU therefore decided that, if the Danish provisions could not be interpreted compatibly with the general principle prohibiting discrimination on grounds of age, the Danish courts were bound to disapply the provisions so as to give effect to the general principle.

What is not fully clear is the extent to which this “horizontal effect” of the general principle prohibiting age discrimination will also apply in relation to other protected characteristics. 

In the case C-147/08. Römer v Freie und Hansestadt Hamburg [2013] 2 CMLR 11, Advocate General Jääskinen took the view that, in this respect, sexual orientation should be treated in the same way as age.  Directive 2000/78 did not lay down the principle of equal treatment in the field of employment and occupation; it was derived from various national instruments and common constitutional traditions, and so non-discrimination on grounds of sexual orientation should be recognised as a general principle of EU law.  This led the Advocate General to the conclusion that the claimant could pursue his claim for sexual orientation discrimination in relation to supplementary pension benefits calculated by reference to marital status in respect of a period prior to the final date for transposition of Directive 2000/78. 

The CJEU, however, did not go so far.  Its judgment implies, but does not explicitly state, that the prohibition of discrimination on grounds of sexual orientation is a “general principle” of EU law.  However, it also held that, prior to the expiry of the period for transposing the Directive into national law, circumstances such as that complained of by Mr Römer did not fall within the scope of EU law.  Thus any “general principle” could not be relied upon by him to support his claim in respect of the period prior to the final date for transposition.

It, therefore, appears likely that the Rasmussen approach can be used to disapply national provisions in discrimination claims against private employers which involve protected characteristics other than age – but only where the claim falls within the scope (including the temporal scope) of Directive 2000/78.

Cloisters has significant expertise in advising and representing clients in relation to all aspects of discrimination and equality law, including age discrimination.  Please contact our clerks for further assistance.