Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The Court in this case had to decide on the effects of general principles of EU law, in concrete the prohibition of discrimination on grounds of age, in disputes between private persons. The judgements entails a clarification of the interrelation of the general principle of the prohibition of discrimination on grounds of age with Article 21 of the Charter and Directive 78/2000.
Mr Rasmussen was dismissed by Ajos, his employer, on 25 May 2009 at the age of 60. A few days later, he tendered his notice to Ajos and agreed with it that he would leave his job at the end of June 2009. He was subsequently employed by another undertaking.
The referring court states that as Mr Rasmussen had been employed by Ajos since 1 June 1984, he was, in principle, entitled to a severance allowance equal to three months’ salary under Paragraph 2a(1) of the Law on salaried employees. However, since he had reached the age of 60 by the date of his departure and was entitled to an old-age pension payable by the employer under a scheme which he had joined before reaching the age of 50, Paragraph 2a(3) of that law, as interpreted in consistent national case-law, barred his entitlement to the severance allowance, even though he remained on the employment market after his departure from Ajos.
In March 2012, the trade union Dansk Formands Forening brought an action on Mr Rasmussen’s behalf against Ajos claiming payment of a severance allowance equal to three months’ salary, as provided for in Paragraph 2a(1) of the Law on salaried employees. The trade union relied on the judgment of the Court of Justice of 12 October 2010 in Ingeniørforeningen i Danmark (C‑499/08, EU:C:2010:600).
On 14 January 2014, the Sø- og Handelsretten (Maritime and Commercial Court) upheld the claim brought on behalf of Mr Rasmussen, now represented by his legal heirs, for payment of the severance allowance in question. That court stated that it was clear from the judgment in Ingeniørforeningen i Danmark (C‑499/08, EU:C:2010:600) that Paragraph 2a(3) of the Law on salaried employees was contrary to Directive 2000/78 and found that the previous national interpretation of Paragraph 2a was inconsistent with the general principle, enshrined in EU law, prohibiting discrimination on grounds of age.
Ajos appealed against that decision before the Højesteret (Supreme Court), contending that any interpretation of Paragraph 2a(3) of the Law on salaried employees that was consistent with the provisions interpreted in the judgment in Ingeniørforeningen i Danmark (C‑499/08, EU:C:2010:600) would, in any event, be contra legem. It also maintained that the application of a rule as clear and unambiguous as that laid down in Paragraph 2a(3) of that law could not be precluded on the basis of the general principle of EU law prohibiting discrimination on grounds of age without jeopardising the principles of the protection of legitimate expectations and legal certainty.
Questions referred to the CJEU for a preliminary ruling were as follows:
In its judgement the Court stated that the general principle of prohibiting discrimination on grounds of age
A Directive in relation to disputes between individuals cannot itself impose obligations on individuals and cannot therefor be relied upon as such against an individual.
National Courts in applying national law are to interpret that law as far as possible in the light of the wording and the purpose of the directive concerned. This can also mean that national courts have to change national case law. This obligation is limited by general principles of law and cannot serve as a basis for an interpretation of national law contra legem.
If it is impossible for the national court to interpret national legislation in a way that is consistent with the directive, it is nonetheless under an obligation to provide, within the limits of its jurisdiction, the legal protection, which individuals derive from EU law. This can mean that the court in order to ensure full effectiveness of that law has to disapply a provision of national legislation. Neither the principles of legal certainty and the protection of legitimate expectations nor the fact that it is possible for the private person who considers that he has been wronged by the application of a provision of national law that is at odds with EU law to bring proceedings to establish the liability of the Member State concerned for breach of EU law can alter that obligation.
Framework Equality Directive 2000/78/EC
Case Study - Too old for severance allowance?