The Case of Mangold vs Helm

Introduction

In the European Union equality law, discriminating people on the basis of age in the occupation and the employment field has become a matter of concern under Directive 2000/78/EC. The directive functions to limit the circumstances where the members of the European Union may permit employees to be subjected to age discrimination by their employers. States across European Union welcomed the directive’s step to prohibit age discrimination. There was an assumption that the European Union should follow countries like the United States of America which had succeeded in enacting legislations that prohibited discrimination on the basis of age. Moreover, the likelihood of having a legislation that prohibited age discrimination was seen by many commentators as a means of opening opportunities for enhancing the protection against inequality and prejudice. It was also lauded as a way to protect human rights while at the same time advancing the European Union’s key elements of employment strategy, which in particular included ensuring older persons, have a secure access to employment opportunities. This made many countries in the EU to incorporate the Directive into their national laws without considering the matter substantially.

However, the Directive’s text might have left many issues unresolved. Particularly, there was uncertainty in the status of prohibition on age discrimination. Questions were posed whether age was to be taken as prima facie evidence for different treatment akin to gender and race, or rather as an inferior and secondary ground. Many commentators struggled with the concern of whether the prohibition on age discrimination was to be left as a regulatory measure that was to be applied with a light touch by courts while paying attention to the role that age plays in the national employment policy, or should it be treated as touching on fundamental rights. As such, there have been many cases in the European Court of Justice that have been attempting to tackle these issues. This paper will look at a major case, Mangold v Helm (C-144/04, 22 Nov 2005) and analyse whether it has solved the issues raised by commentators in an earlier case of Marshall v Southampton.

Mangold V Helm(C-144/04, 22 Nov 2005)

Facts of the Case

In the month of June the year 2003, a 56-year-old Werner Mangold reached a conclusion of a fixed-term employment contract with his employer Rudiger Helm. The duration stated in the terms of the contract was conformed to the provisions of the TzBfG under paragraph 14 (3). The TzBfG law addressed both part-time and permanent labour contracts with an intention to expedite employment for individuals above 52 years. A few weeks after he was employed, Mangold brought proceedings before the Arbeitsgericht München which is a municipal labour court. His claim was that the clause that fixed his employment’s duration was void since paragraph on the aforementioned law on which his contract was founded, was contrary to provisions under the 28^th June 199 Council Directive 1999/70/EC. The Council Directive 2000/78 /EC of 27 November 2000 had concluded the agreement on the framework, which celebrated a rule that ensured there was equal treatment to all in education and employment.

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Clause 5 of the Council Directive 2000/78/EC mandates that adherent states should put measures that prevent employees from being abused through a successive use of fixed-term contracts. In clause 8 of the directive, the implementation of such measures by the respective countries should not constitute valid grounds that are meant to lower the employee safeguards as given to them. The Council Directive 2000/78/EC dictates a promising framework that ensures people receive equal treatments in employment and occupations while at the same time making it illegal for be discriminated on grounds of age among others.

The Directive further provides that the subject states can resolve to remove the discrimination based on age from the category of discrimination act if there is a reasonable and objective justification by a legitimate aim. The claims may be a legitimate employment policy, objectives of vocational training and labor market, and if the means to achieve them are deemed appropriate and necessary.

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In the circumstance of the case, German had selected to extend the outlined period of implementation and thus had to adopt the aforementioned law by 2^nd December in 2006. The Municipal labor court applied to the ECJ for an advisory opinion on whether the directive applied to the German legislation before the country officially implemented the directive. The ruling was to look at the compatibility between the national legislation catering for the workers above 52 years with clause five as read together with clause 8(3) of the Council Directive 1999/70 framework agreement as well as article 6(1) of the Council Directive 2000/78.

The Findings as given by the European Court of Justice

The ECJ held that clause 5 of the aforementioned Directive 1999/70 was immaterial dispute’s outcome that appeared before the preceding court. This is because the issue raised involved a single contract as opposed to using excessive fixed-term employment contracts. Concerning Directive 2000/78, the court stated that its function was to establish a general framework to combat discrimination subjected to workers on any of the aforementioned grounds established in article 1 of the TzBfG that talks about occupation and employment. The ECJ stated that provisions under Paragraph 14(3) of the TzBfG envisioned promoting an employment integration of older unemployed individuals to the extent find it more difficult to secure employment. The court ended by stating that such an objective must be regarded as justifying, and that article 6(1) of Directive 2000/78 permits such an objective and reasonable treatment differences grounded on age.

The ECJ further analysis on article 6(1) of Directive 2000/78 outlined that it required an appropriate and a necessary means to reach a legitimate objective. Individual countries within the EU enjoy unlimited discretion to choose the measures they can use to attain their employment and socials policy area objectives. Nevertheless, if the national legislation considered employee age as the only basis to apply a fixed-term employment contract, then such legislation must be deliberated as having gone further than what is and necessary appropriate in attaining the envisioned objective.

The ECJ added that in the period prescribed for a state to transpose a directive into domestic law, all EU member states are supposed to steer clear of taking any measures that can result to seriously compromising the results that a said directive meant to attain. It was held that the fact that the operation of the national law legislation was to end on 31^st December 2006, several weeks after members states were required to have implemented the directive was not decisive.

Any member state that enjoys the extended transposition period should progressively take concrete measures in order to approximate its legislation to conform to the result that the directive prescribes. The court stated that this is because, if states continue to adopt measures that are incompatible with the objective that the directive pursues, then the obligation is likely to be rendered redundant. The court also held that the Directive 2000/78 vaguely stated the rule of equivalent and fair treatment in areas of occupation and employment. As such, the gender non-discrimination rule ought to be considered as the general rule operating as the community law. The court, while observing the equal treatment general principle specifically with in reference to age, it held that it should not be left to await the completion of the transposition period the directive that seeks to combat discrimination on such grounds.

Finally, the court in its ruling explained the importance of applying the non-discrimination principle by all national courts and ensures that age was fully guaranteed. In doing so, the courts must ensure that they set aside any conflicting law that existed contrary to the community law. This included situations where the set aside period for such a directive to be transposed had not yet expired.

Analysis of the Case

The Mangold case has been viewed as a revolutionary judgement. It is a case that has been said to have broken a new ground. The opinion by the ECJ in the case of Mangold has been seen as an opinion that gave a full effectiveness to the community law as opposed to the academic opinion. The case views past the normal direct effect of directives and brings another way to look at the application of directives. It introduces new inroads, which include non-existence direct horizontal effect of directives. Similarly, the judgement conveys the impression of failure to enforce directives based on rights before the expiry of the directive’s implementation period. The judgement proceeds to give a new reasoning to the path that it has chosen. It suggests that directives are accompanied with pre-existing general principles.

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In this case, the ECJ established that the German legislation envisioned an objective that was legitimate as acceptable to the Council Directive 2000/78 in allowing the fixed-terms contracts of employment to be used in cases of employees with over 52 years of age without objective justification. It found that the German legislation led to the creation of differing age treatment practices and this was a legitimate justification under the directive since it promoted the employment of older workers.

However, the legislation was irreconcilable when compared with the directive since it failed to meet the threshold identified by the courts. The court found that the national legislation existed outside the necessary and appropriate expectations with its intention to facilitate the employment of older individuals. This, according courts advisory opinion, went against the test of proportionality. The most interesting component seen in the decision however related to the consequences of infringing directive provisions pertaining to age discrimination.

Consequences During the Transposition Period

The jurisprudence arrived by the ECJ mandated the national courts in Germany to suspend the domestic laws that infringed the directive. However, at the material time, the directive’s transposition deadline had not yet lapsed. Note that the same court was at one time tasked with the duty to look at the directives and the expiry of their implementation period. In the case of Publicco Ministero vs. Ratti, the same ECJ had held that it is only at the expiry of the transposition period prescribed that states will be obliged by the provisions of the directive.

As such, in this scenario Mangold was supposed to enjoy the benefits of the directive which provided for clauses of non-discrimination before the prescribed period lapses. This does not augur well with the case of Publicco Ministero vs. Ratti. The court justifies its new position by claiming that during this transposition, state members are forbidden from engaging in practices that can deter what it aims to attain once it comes into force. This position was restated in the case Inter-Environnement Wallonie ASBL v Region Wallone, [1997] ECR I-7411. However, from the court’s ruling, what remains unclear is whether its departure from the traditional reasoning in Publicco Ministero vs. Ratti will depend on the existence of such actions by EU countries or whether it will be applied generally in conformity with the principle set in Inter-Environment Wallonie ASBL v Region Wallone.

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The Horizontal Direct Effect and Marshall vs. Southampton

The most revolutionary and significant aspect of the Mangold judgement relates to the fact that failing to apply the material domestic law would consequently create individual responsibility. This is because the directive warns the employers from contracting unrestricted fixed-term agreements with employees above 52 years. The national law clearly provides for this right, but at the same time is inconsistent with the decree. This is inconsistent with the cases that the courts settled in the past, which touched on the issue stated earlier on absent horizontal effects directed by the directives. Jurisprudence adopted the court regards directives as community acts that impose obligations exclusively on member states. For instance, this position was well outlined in Marshall vs. Southampton Health Authority. This European Union case involved a conflict between the European Union Law and a national legal system.

The brief facts of the case are that Helen Marshall who was a senior dietician claimed that her dismissal on the basis of age was done in violation of the Equal Treatment Directive 1976. Helen Marshall was employed by the Area Health Authority which was a body that was established by the government of the United Kingdom under the 1977 National Health Service Act. Marshall was dismissed on 31^st March 1980 after serving for 14 years, just four years before she attained the age of 62. Marshall took a claim to the industrial tribunal stating that her dismissal amounted to a treatment of discrimination based on sex, an action that violated both the community law and sexual discrimination act.

However, the tribunal dismissed the application as provisions under section 6(4) of the sexual discrimination act permitted such sex based treatments in regards to retirement. The matter went to employment appeal tribunal and later to the English Court of Appeal. The court later referred two issues for preliminary ruling to the ECJ. The first issue was whether the dismissal of Marshall on the basis that she was a woman above the retirement age was a discriminatory act that was prohibited by the directive.  The second issue was that if the court answers the first question affirmatively, whether the appellant can rely on the directive of equal treatment and in the tribunals or the domestic courts, notwithstanding if there is any inconsistency between the sexual discrimination act and the directive.

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The decision of the 13 judges at the ECJ was that there was no direct horizontal effect. Comparing the two cases, the Mangold has solved the problem that was evident in Marshall by counteracting the threat that Marshall posed to the success of community law. On the other hand, the court in Mangold brought an indirect effect, which includes an interpretive obligation that requires domestic courts to read domestic laws in conformity to provisions outlined in the directives. The Mangold case has gone further to settle the law on how to deal with directives, which have not been implemented.

Conclusion

Until to date, there has not been any case decided by the court, which has suggested that provisions of community law may impose obligations on people. The Mangold case has fully given a solution to what the commentators of Marshall case raised in their opinions. Moreover, the case has brought a lot of uncertainty in the area of the European law as it attempted to find an alternative way in the absence of a direct horizontal effect of the directives.