Kücükdeveci v Swedex GmbH & Co KG

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Kücükdeveci v Swedex GmbH & Co KG
Court European Court of Justice
Citation(s) (2010) C-555/07, [2010] IRLR 346

Kücükdeveci v Swedex GmbH & Co KG (2010) C-555/07, [2010] IRLR 346 is a leading EU labour law case, which held that there is a general principle of law in all European Union member states, against discrimination, and in favour of equal treatment.


Ms Kücükdeveci argued that the German service related statutory minimum notice period, because it disregarded employment before the age of 25, was unjustifiably discriminatory against young people. She started work at age 18 for Swedex, and was dismissed in 2006 after ten years service. She argued that under the German Civil Code, BGB §622 (which was enacted in 1926, [34]) that she received only one month was discriminatory. She should have had four, were it not for the under-25 exception. After the Landesarbeitsgericht Düsseldorf referred the question, the government argued the aim was to give employers more flexibility by allowing them to dismiss young workers, who can be expected to be more personally and occupationally mobile. The questions were (1)(a) is an age qualification for provisions on reasonable notice discriminatory (b) are they justified (2) if unjustifiable, can private citizens have a direct right of action against employers?


The European Court of Justice (Grand Chamber) held that the legislation was contrary to the Employment Equality Framework Directive 2000/78/EC, but also following Mangold v Helm a general principle of equality which permeates all of EU law, to which the Directive merely gave expression. This is more so because the Charter of Fundamental Rights article 21(1) says the same and that has the same legal value as the treaties under TEU art 6(1). Accordingly, in paragraphs [23]-[31], it was held that the legislation in BGB §622 was discriminatory. There was not a sufficient objective justification for the measure, because although the German government's professed aim of wishing to bolster youth employment was legitimate, its measure was disproportionate.

20. In the first place, that the Council of the European Union adopted Directive 2000/78 on the basis of Article 13 EC, and the Court has held that that directive does not itself lay down the principle of equal treatment in the field of employment and occupation, which derives from various international instruments and from the constitutional traditions common to the Member States, but has the sole purpose of laying down, in that field, a general framework for combating discrimination on various grounds including age (see Mangold, paragraph 74).

21. In that context, the Court has acknowledged the existence of a principle of non-discrimination on grounds of age which must be regarded as a general principle of European Union law (see, to that effect, Mangold, paragraph 75). Directive 2000/78 gives specific expression to that principle (see, by analogy, Case 43/75 Defrenne [1976] ECR 455, paragraph 54).

22. It should also be noted that Article 6(1) TEU provides that the Charter of Fundamental Rights of the European Union is to have the same legal value as the Treaties. Under Article 21(1) of the charter, ‘[a]ny discrimination based on … age … shall be prohibited’.

23. For the principle of non-discrimination on grounds of age to apply in a case such as that at issue in the main proceedings, that case must fall within the scope of European Union law.

24. In contrast to the situation concerned in Case C‑427/06 Bartsch [2008] ECR I‑7245, the allegedly discriminatory conduct adopted in the present case on the basis of the national legislation at issue occurred after the expiry of the period prescribed for the Member State concerned for the transposition of Directive 2000/78, which, for the Federal Republic of Germany, ended on 2 December 2006.

25. On that date, that directive had the effect of bringing within the scope of European Union law the national legislation at issue in the main proceedings, which concerns a matter governed by that directive, in this case the conditions of dismissal.'


35 The referring court states that the second sentence of Paragraph 622(2) of the BGB reflects the legislature’s assessment that young workers generally react more easily and more rapidly to the loss of their jobs and greater flexibility can be demanded of them. A shorter notice period for younger workers also facilitates their recruitment by increasing the flexibility of personnel management.

36 Objectives of the kind mentioned by the German Government and the referring court clearly belong to employment and labour market policy within the meaning of Article 6(1) of Directive 2000/78.

37 It remains to be ascertained, in accordance with the wording of that provision, whether the means of achieving such a legitimate aim are ‘appropriate and necessary’.

38 The Member States enjoy a broad discretion in the choice of the measures capable of achieving their objectives in the field of social and employment policy (see Mangold, paragraph 63, and Palacios de la Villa, paragraph 68).

39 The referring court indicates that the aim of the national legislation at issue in the main proceedings is to afford employers greater flexibility in personnel management by alleviating the burden on them in respect of the dismissal of young workers, from whom it is reasonable to expect a greater degree of personal or occupational mobility.

40 However, the legislation is not appropriate for achieving that aim, since it applies to all employees who joined the undertaking before the age of 25, whatever their age at the time of dismissal.

41 As regards the aim pursued by the legislature at the time of adoption of the national legislation at issue in the main proceedings, adduced by the German Government, of strengthening the protection of workers according to their length of service in the undertaking, it is clear that, under that legislation, the extension of the notice period for dismissal according to the employee’s seniority in service is delayed for all employees who joined the undertaking before the age of 25, even if the person concerned has a long length of service in the undertaking at the time of dismissal. The legislation cannot therefore be regarded as appropriate for achieving that aim.

42 It should be added that, as the referring court points out, the national legislation at issue in the main proceedings affects young employees unequally, in that it affects young people who enter active life early after little or no vocational training, but not those who start work later after a long period of training.

43 It follows from all the above considerations that the answer to Question 1 is that European Union law, more particularly the principle of non-discrimination on grounds of age as given expression by Directive 2000/78, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that periods of employment completed by an employee before reaching the age of 25 are not taken into account in calculating the notice period for dismissal.

In paragraphs [44]-[56] the ECJ further held that national courts have a duty to disapply any provision of national legislation contrary to the principle of equal treatment. They should not be compelled to make a reference to the ECJ first.

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