• In the case of Case C-441/14 Dansk Industri (19 April 2016), it was found that where a Directive gives concrete expression to a general principle encased in EU law, conflicting national legislation can be ‘set aside’ upon horizontal application of that Directive.

Facts of Case C-441/14 Dansk Industri (19 April 2016)

  • After being dismissed by his employer, Mr Rasmussen sought severance allowance under national law
  • His employer refused his request on grounds that Mr R’s position did not fulfil the requirements set out by the national law
  • Namely, Mr R had joined the pension scheme before 50 and was eligible for old-age pension
  • The C challenged the compatibility of national law concerning employee salary, stating that the refusal of severance amounted to age discrimination
  • The Supreme Court of Denmark referred the case to the European Court

Issues in Case C-441/14 Dansk Industri (19 April 2016)

  • Is the general principle of EU law of non-discrimination on the ground of age interpreted as precluding the application of the national legislation in question?
  • Can the Danish Supreme Court hold the direct and indirect effect of EU law to be outweighed by the principles of legal certainty and the protection of legitimate expectations, i.e. whether it could decide that these principles took precedence over the principle of non-discrimination in respect of age

Held by the European Court of Justice

Yes, to the first issue but no to issue 2 – the general EU law principle precluded national law, prohibiting discrimination on the ground of age and the principles mentioned did not outweigh the direct effect and indirect effect of EU law.

Findings of the Court

Horizontal application of the general principle:

  • “according to settled case-law, 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” [29]
  • “if it considers that it is impossible for it to interpret the national provision at issue in a manner that is consistent with EU law, the national court must disapply that provision” [37]

Principles of legal certainty and the protection of legitimate expectations:

  • “with regard to identifying the obligations deriving from the principle of the protection of legitimate expectations for a national court adjudicating in a dispute between private persons, it should be noted that a national court cannot rely on that principle in order to continue to apply a rule of national law that is at odds with the general principle prohibiting discrimination on grounds of age, as laid down by Directive 2000/78” [38]
  • “cannot alter the obligation the national court is under to uphold the interpretation of national law that is consistent with Directive 2000/78 or, if such an interpretation is not possible, to disapply the national provision that is at odds with the general principle prohibiting discrimination on ground of age, as given concrete expression by that directive, or justify that court giving precedence, in the dispute before it, to the protection of the legitimate expectations of a private person, namely in this case the employer, who has complied with national law” [42]

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