• In the case of Case C-555/07 Seda Kucukdeveci [2010] ECR I-365 (Grand Chamber), the recognition of equal treatment as a general principle in the case of Mangold was reaffirmed and may have horizontal direct effect where it is made concrete by Community law. However, contrasting Mangold, this case suggested the equal treatment principle may take effect upon the Directive’s implementation period expiration.

Facts of Case C-555/07 Seda Kucukdeveci [2010] ECR I-365 (Grand Chamber)

  • Member State Germany’s legislation laid down a minimum period of notice for dismissal, which was based on the period of service
  • Any years worked before the age of 25 were excluded when calculating the notice period
  • The C, Ms K, received only a 40-day notice rather than 4 months
  • This was because she worked since she was 18, now 28, but the years before 25 were not counted
  • She brought a claim against the private company, believing she had been discriminated against due to her age
  • The national court made preliminary reference to the Grand Chamber on whether the prohibition of non-discrimination in respect of age applied under Community law

Issues in Case C-555/07 Seda Kucukdeveci [2010] ECR I-365 (Grand Chamber)

  • Was the German Civil Code discriminatory, on the ground of age?

Held by the Grand Chamber

Yes, there was an unjustified age discrimination within the Civil Code, which is precluded by Community law.

Findings of the Court

Community law prohibits discrimination, and precludes the national law:

  • “it is the general principle of European Union law prohibiting all discrimination on grounds of age, as given expression in Directive 2000/78, which must be the basis of the examination of whether European Union law precludes national legislation such as that at issue in the main proceedings.” [27]

Looking to the national law in question, the Grand Chamber noted it would affect those who may have worked earlier than others but for the same period of time – containing a differing treatment in terms of age [31]

  • “the national legislation at issue in the main proceedings disadvantages younger workers generally compared to older ones, in that the former – as the situation of Ms Kücükdeveci shows – may, despite several years’ seniority in service in the undertaking, be excluded from benefiting from the progressive extension of notice periods in the case of dismissal according to the length of the employment relationship, from which older workers of comparable seniority will, by contrast, be able to benefit” [30]

It was reaffirmed where the national court is hearing a case on non-discrimination, it is for the court to ensure “the legal protection which individuals derive from European Union law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle” [51]

  • Interpreting the Employment Directive 2000/78/EC for such cases, and declining the application of national measures by either being compelled or by preliminary reference where they are incompatible with the Directive [53]

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