Mangold - Grade: B PDF

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Critically examine the Court of Justice's judgment in Case C-144/04 Mangold. Does it, as some have claimed, demolish the prohibition against the horizontal direct effect of directives?...

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European Union Law LW593

Critically examine the Court of Justice's judgment in Case C-144/04 Mangold. Does it, as some have claimed, demolish the prohibition against the horizontal direct effect of directives? “It is the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of age, setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that directive has not yet expired.”1 This statement taken from the Mangold judgement is essentially very interesting and debatable. The prohibition of discrimination has become the most crucial factors when trying to establish a stable human rights law for equal treatment. Mangold2 is one of the most astonishing cases concerning employment law for discrimination on grounds of age. Mr Mangold’s argument against discrimination on grounds of age was the primary leading principle in discrimination and the European Court of Justice had decided the first case on this matter in 2005. This case is one in which, argued that equality is capable of having horizontal direct effect.3 Simultaneously, the European Court of Justice in Kucukdeveci4 confirmed this principle of discrimination on grounds of age but nevertheless failed to use the EU Charter of Fundamental Rights. This essay will critically examine the Court of Justice’s judgement in Mangold 5, then will move on to demonstrate statements and criticisms by other Advocate Generals in other cases. This essay will then conclude, by recommending that the European Court of Justice should work on clarifying the incomprehensible concerns on the horizontal direct effect, especially when deciding upon upcoming cases in the future. This essay will start briefly explaining why directives have vertical effect only before moving on to discuss the judgement in Mangold6 has been criticized and disapproved by many academies and Advocate Generals, which I will refer to further in my essay. 1 Case 144/04 Mangold v Helm [2005] ECR I-9981 (ECJ) [78] 2 Case 144/04 Mangold v Helm [2005] ECR I-9981 (ECJ)

3 Papadopoulos, Dr T. ‘Criticizing the horizontal direct effect of the EU general Principle of Equality’, E.H.R.L.R. 2011, 4, 437-447 4 Case C-555/07 Kücükdeveci v Swedex [2010] All ER (D) 126 (Feb) 5 Case 144/04 Mangold v Helm [2005] ECR I-9981 (ECJ) [78] 6 Case 144/04 Mangold v Helm [2005] ECR I-9981 (ECJ) [78]

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There are advantages of having vertical effect only and that is, based on the presumption that if member states under any circumstances fail to implement the directive they can be challenged. Asking the question of would having a horizontal direct effect have advantages? The answer is not as simple. It may be advantageous because the Court of Justice could have set up certain guidelines and rules that would govern both the public and private parties. This would therefore be more fair for an individual who would want to rely on the directive and that individual would not necessarily have to worry about the power, status and position of the other party he wishes to bring to court. This on the other hand this could have drawbacks; it would create uncertainty because having a set of rules in which public bodies and private bodies both required to follow would create chaos Opposing the question as to why the courts only apply vertical effect. The Marshall7 case, gives a brief answer to this. The Court of Justice chose a very literal reading of the Article 2888, rather than a purposive one. The wording of Article 288 9, clearly demonstrates that directives are only addressed to a member state, they can only bind the member state and therefore only the member state can be in default of its obligations through not implementing a directive or implementing a directive incorrectly. Mrs Marshal won her case on arguing for discrimination on grounds of sex, as she was required to retire at the age of 62, while men working at the same sector were required to retire at the age of 65. The underlying policy argument in the case was very precise, because there was absolutely no problem for Mrs Marshall as she was working for a public sector, but the problem was that other workers in her situation could not rely on the directive if they were working for a private sector. The fact that the EU regulations and Treaties are binding on individuals but directives is only binding by the member state using the vertical direct effect means that its unfair for those who wish to rely on this legislation against another individual. .

Nevertheless, in many instances The Court of Justice has illustrated that they may be ready to permit horizontal directives such as in the case of Mangold10. The Mangold11 case was rather an interesting and placed great importance in EU law, which brings me to the first part of my essay. The Mangold case involved domestic proceedings for discrimination

7 Marshall v Southampton Area Health Authority (152/84) [1986] ECR 723 8 TFEU ARTICLE 288 9 TFEU ARTICLE 288 10 Case 144/04 Mangold v Helm [2005] ECR I-9981 (ECJ) 11 Case 144/04 Mangold v Helm [2005] ECR I-9981 (ECJ)

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on grounds of age. Mr Mangold was permitted to a fixed term contract, in which he strongly rejected and was required to retire at the age of 54. This however, did not apply to a citizen whom was over the age of 52. Mr Mangold brought proceedings against discrimination on the grounds of age. The European Court of Justice, in Mangold12 argued that equal treatment for employers were breached under German law because treating citizens differently due to their age, outraged the law of disregarding that discrimination on grounds of age. For the last 40 years or more, the courts have recognised an unwritten source of EU law. These were said to be general principles of EU law, and those general principles include the protection of fundamental rights. The courts have drawn inspiration for the development of these principles from two main sources: the international human rights treaties on which member states have collaborated and the constitutional tradition common to member states. The court in Mangold13 held that the principle of non-discrimination was one of the general principles in EU law, which had its source in the common constitutional traditions of the member states and the invidious international human rights instruments. This lead the court to say that although a horizontal litigation between two private parties were at stake and although the period of transposing the directive into national law had not expired at the material time, the German court nevertheless had to uphold that general principle of non-discrimination on grounds on age, by setting aside the conflicting German law, the law that allowed employers a fixed term contract for anybody over the age of 52. The judgment in Mangold is rather controversial, most importantly because the dispute was made between two private parties, in other words this was a horizontal litigation and the state was not directly involved. The judgement acknowledged the idea that equal treatment was consistent to a general principle of EU law and discrimination is one of the fundamental principles of the EU. The Charter of Fundamental rights of the EU 14, after its entry into the Lisbon Treaty, is said to have the identical legal value as those treaties that prohibit discrimination on grounds of age. The case of Kucukdeveci15 is very important in the sense that the European Court of Justice aimed to clarify the heavily criticized judgments in Mangold. Similar to Mangold, Kucukdeveci16 was a case to confirm the horizontal direct effect of the general principle on 12 Case 144/04 Mangold v Helm [2005] ECR I-9981 (ECJ) 13 Case 144/04 Mangold v Helm [2005] ECR I-9981 (ECJ) 14 CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (2000/C 364/01) 15 Case C-555/07 Kücükdeveci v Swedex [2010] All ER (D) 126 (Feb) 16 Case C-555/07 Kücükdeveci v Swedex [2010] All ER (D) 126 (Feb)

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the grounds of age. However, the difference was that in Kucukdeveci17, the period for transposing the Directive had well expired. However, in Mangold18, this was not the case, because Mangold had an additional Directive to rely on that would establish the link with Community Law. The European Court of Justice in Mangold did not consult the EU Charter of Fundamental Rights19 in its judgment, in which Article 21,20 which is known to prohibit discrimination on grounds of age. Although, EU Charter of Fundamental Rights 21 was firstly mentioned in Kucukdeveci22, the judgment also did not use it, if they had used it then it would have made it easier to strengthen their arguments on horizontal direct effect.23 There is clearly an absence of consideration and discussion, where the courts seem to accept this horizontal direct effect without out deliberating on fundamental rights. Similarly, In Bartsch24, there was no link within Community law and thus lead to a very different outcome. The trio cases indicate that there are uncertainties and different outcomes on the horizontal direct effect. Therefore it is true to say the principle of equal treatment on grounds of discrimination in Mangold has its shortcomings. The fact that Mangold25 and Kucukdeveci26 make an argument about the general principle of equality on grounds of age establishing a horizontal direct effect within an unwritten court-made fundamental right is obscure.27 No human rights perceptions were mentioned to examine and break down horizontally on this fundamental right. In Mangold there was a deprivation of thought and reflection, which makes it harder for developing equality a fundamental human rights principle. The Mangold judgement has drawn further attention and theoretical criticism by many Advocate generals in various cases mainly because it has weakened the persistence of direct effect and its judgement has not created certainty but rather has made it indeterminate in terms of legal reasoning. I will refer to two Advocate General’s negative commentary on Mangold. In the case of Bartsch28, Advocate General Sharpston, criticised 17 Case C-555/07 Kücükdeveci v Swedex [2010] All ER (D) 126 (Feb) 18 Case 144/04 Mangold v Helm [2005] ECR I-9981 (ECJ) 19 CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (2000/C 364/01) 20 CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (2000/C 364/01) 21 CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (2000/C 364/01) 22 Case C-555/07 Kücükdeveci v Swedex [2010] All ER (D) 126 (Feb) 23 Marie-Ange Moreau, 24 Case C-427/06 Bartsch [2008] ECR I-7245 25 Case 144/04 Mangold v Helm [2005] ECR I-9981 (ECJ) 26 Case C-555/07 Kücükdeveci v Swedex [2010] All ER (D) 126 (Feb) 27 Papadopoulos, Dr T. ‘Criticizing the horizontal direct effect of the EU general Principle of Equality’, E.H.R.L.R. 2011, 4, 437-447 28 Case C-427/06 Bartsch [2008] ECR I-7245

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Mangold29 as he said that the judgement creates various legal uncertainties because “The Court (of its own volition, without good reason and against the wishes of the legislature) extended the scope of a directive, to give it effect before the end of its transitional period and in horizontal circumstances, by making an innovative reference to a general principle of [EU] law.”30 In simple terms, the best way to analyse the Mangold case is to say that, the judgement in Mangold shows us how the European Court of Justice chose to use a social rights approach, when disregarding the general principles of EU law.31 Furthermore in the case of Lindorfer,32 Shapston argued that the prohibition by age discrimination mentioned by the European Court of Justice was placing equality before the law 33. Her statement is essentially right in light of the fact that we are undermining the principle of the rule of law, given that everyone is presumed to be equal under the rule of law but in this case it was not. Simultaneously, Advocate General Mazak, in the case of Palacios de Villa34, states ‘Article 13 nor Directive 2000/78/EC reflect an already existing prohibition of all the forms of discrimination to which they refer’35 To some extent AG Mazak’s statement is true, because although the Mangold case points out significant international instruments it does not confer the general principle of discrimination as such, and therefore it is thought-provoking to see whether the European Court of Justice will discuss the nature of general principles more intensely in its future case law. The judgment in Mangold, did not illustrate the specific discrimination as presented in the equal treatment directive, therefore any other forms of discrimination that the law did not recognise could have been regarded as discrimination which could have included discrimination on education or race and this certainly creates uncertainty and leads to a flood of claims. Age discrimination is a ground that is currently new under EU law and as seen by previous case law, it has been at stake only by a few cases. Due to the significant restrictions 29 Case 144/04 Mangold v Helm [2005] ECR I-9981 (ECJ) 30 Case C-427/06 Bartsch [2008] ECR I-7245 31 Sebastian Krebber, The Social Rights Approach of the European Court of Justice to enforce European employment law accessed 12 March 2012 32 Case C-227/04 Lindorfer [2007] ECR I-6767 33 Papadopoulos, Dr T. ‘Criticizing the horizontal direct effect of the EU general Principle of Equality’, E.H.R.L.R. 2011, 6, 437-447 34 Palacios de la Villa v Cortefiel Servicios SA (C-411/05) [2007] IRLR 989 35 Ulf Bernitz, Joakim Nergelius & Cecilia Cardner, General principles of EC law in a process of development: reports from a conference in Stockholm, 23-24 March 2007, organised by the Swedish Network for European Legal Studies (Kluwer Law International, 2008) 52 -53

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introduced by the labour markets, some employers may argue that dismissing workers after a certain age will help provide better prospects and chances for those employers who are newly qualified. On the other hand, arguments made by employers such as Mr Mangold, make it clear to see that an employment contract that expires automatically at a certain period due the employer reaching a certain age is unfair and unjust. I am of the opinion that reviewing national measures for equality especially in grounds of nondiscrimination should be admissible, but the difficulty in Mangold was that the constitutional tradition and international fundamental rights to which the Directive 2000/78 and courts, are constantly referring to, did not cover the prohibition of discrimination of grounds of age clearly and precisely.36 The Mangold case leaves behind many uncertain arguments and quires. Most importantly the possibility of having horizontal direct effect is to some extent unclear. The European Court of Justice did not clarify whether it was discrimination on grounds of age that consulted the horizontal direct effect only, because we surly have discrimination on grounds of nationality, sex, and religion. If discrimination of grounds of age has horizontal effect than wouldn’t the other remaining grounds as mentioned in Directive 2000/78 also have horizontal direct effect too? The answer to this till seems to be missing because the manner in which the European Court of Justice chose to overcome this potential conflict was unsuccessful. To conclude, the Mangold case does not provide certainty for future cases, and numerous judgements contradict with each other when discussing the prohibition of horizontal direct effect. I therefore agree to the fact that the judgement in Mangold demolishes the prohibition against the horizontal direct effect of directives as it does not clarify the law on horizontal directives but it rather causes destruction and uncertainties. I think the court in Mangold was more concerned about defending its fundamental rights rather than drawing attention to the absence of horizontal effect. The Court of Justice for the European Union, in my opinion needs to refine the uncertain law of horizontal direct effects and simplify the distinction between incidental horizontal effects and horizontal effects and where and when we, as individual beings can rely upon them. I would like to leave you with a quote, in which I found sums up the current state of horizontal directives ‘ the court in Mangold adds another incoherent piece of jigsaw on horizontal direct effect of directives.’37 36 Frans Pennings &Yvonne Konijn, Social responsibility in labour relations: European and comparative perspectives ( 37 Frans Pennings &Yvonne Konijn, Social responsibility in labour relations: European and comparative perspectives (

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Word Count: 2073 words

Bibliography Cases Case C-427/06 Bartsch [2008] ECR I-7245 Case C-555/07 Kücükdeveci v Swedex [2010] All ER (D) 126 (Feb) Case C-227/04 Lindorfer [2007] ECR I-6767 Palacios de la Villa v Cortefiel Servicios SA (C-411/05) [2007] IRLR 989 Marshall v Southampton Area Health Authority (152/84) [1986] ECR 723 Case 144/04 Mangold v Helm [2005] ECR I-9981 (ECJ)

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Books Christoph Busch & Hans Schulte-Nölke, Eu Compendium - Fundamental Rights and Private Law ( Frans Pennings &Yvonne Konijn, Social responsibility in labour relations: European and comparative perspectives ( Ian Ward, A critical introduction to European Law (3 rd Edition) (Cambridge University, 2009) Marie-Ange Moreau, Ulf Bernitz, Joakim Nergelius & Cecilia Cardner, General principles of EC law in a process of development: reports from a conference in Stockholm, 23-24 March 2007, organised by the Swedish Network for European Legal Studies (Kluwer Law International, 2008) 52 -53 Legislation Human Rights Act 1998 EU Legislation CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (2000/C 364/01) TFEU ARTICLE 288

Journal Articles Papadopoulos, Dr T. ‘Criticizing the horizontal direct effect of the EU general Principle of Equality’, E.H.R.L.R. 2011, 6, 437-447 Websites Sebastian Krebber, The Social Rights Approach of the European Court of Justice to enforce European employment law accessed 12 March 2012

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