Kücükdeveci v Swedex GmbH Case C-555/07, [2010] ECR I-365

Kücükdeveci had worked for Swedex in Germany from the age of eighteen. When the company dismissed her after approximately ten years, a provision of the German Civil Code required service before the age of twenty-five to be disregarded when calculating statutory notice. She therefore received a shorter notice period than her total service would otherwise have produced. She challenged that exclusion as age discrimination in litigation against her private employer. The national court asked whether EU law prohibited the rule and whether it could disapply national legislation without first obtaining a further constitutional or European ruling.

Did disregarding employment before age twenty-five unlawfully discriminate, and could a national court disapply that rule in proceedings between a worker and a private employer?

The Court held that the exclusion was incompatible with the EU principle prohibiting age discrimination, as given expression by Directive 2000/78. The scheme disadvantaged younger workers with comparable service and was not justified by the aims relied upon. The dispute fell within EU law, with dismissal occurring after the relevant implementation period. In a dispute between individuals, the national court had to secure the effectiveness of that general principle and disapply conflicting legislation if conformity could not be achieved through interpretation. The reasoning did not make the directive itself horizontally directly effective. Nor could domestic rules requiring a prior constitutional ruling obstruct the relevant national court’s EU-law obligation. That court’s entitlement to seek an interpretation reference remained available without becoming a prerequisite imposed by national law.

Within the scope of EU law, the general principle of non-discrimination on grounds of age, given expression by Directive 2000/78, can require disapplication of incompatible national legislation in private litigation. That route is distinct from treating the directive itself as horizontally directly effective.

Kücükdeveci develops Mangold and is a leading example of the interaction between directives, general principles and horizontal disputes. The important question is the legal source carrying the enforceable obligation. Later decisions including Dansk Industri elaborate the position, while AMS shows why the same result cannot be assumed for every Charter or directive provision. UK students should distinguish this account of EU doctrine from domestic legislation governing the post-withdrawal treatment of general principles and retained or assimilated law.