Age discrimination, Directive 2000/78/CE, European Union law, national courts, preliminary reference, CJEU, Treaty on the Functioning of the European Union, TFEU, Article 267, primacy of Union law, non-discrimination principle, equal treatment in employment, direct vertical effect, subjective rights, European norms uniformity, national legislation, incompatible legislation, Union law application, national judge obligations, CJCE Foto-Frost case, clear precise unconditional norms, Member States obligations, employment and work equality, discrimination based on age, internal provisions, European law priority, national court faculties
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Abstract
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Abstract
National judges must apply EU Directive 2000/78/CE on age discrimination directly, setting aside incompatible national provisions.
Extract
[...] The principle of non-discrimination based on age, such as consecrated by the directive 2000/78/CE, imposes on Member States to ensure equal treatment in employment and work. This principle prohibits any form of discrimination, direct or indirect, based on age, and confers subjective rights on the parties concerned. These parties may invoke this right before national courts, which are required to enforce this right. In this context, the directive enjoys direct vertical effect when it is clear, precise and unconditional, thus allowing the particuliers of invoking it directly against a failing Member State1. [...]
[...] Thus, national courts are invested with the obligation to ensure the full effectiveness of the principle of age discrimination, as provided for by Directive 2000/78/CE. They must set aside any national provision that would violate this principle, under the principle of primacy of Union law. This obligation is independent of the faculty to refer to the CJEU by way of preliminary reference, which constitutes a tool at the disposal of the national judge, but does not condition the immediate application of Union law when the norm is clear, precise and unconditional. [...]
[...] In the area of age discrimination, the national judge must therefore leave unapplied any national provision incompatible with Directive 2000/78/CE, at the risk of contravening the obligations arising from Union law.3 Article 267 of the Treaty on the Functioning of the European Union (TFEU) establishes the mechanism of preliminary reference, allowing national courts to request the CJEU for an interpretation of Union law. This mechanism aims to ensure uniformity of interpretation and application of European norms within Member States. However, recourse to this mechanism is a faculty for courts that do not rule in the last instance, and not an obligation. [...]
