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The Evolution and Impact of the Case-Law of the Court of Justice of the European Union on Directives 2000/43/EC and 2000/78/EC

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The Evolution and Impact of the Case-Law of the Court of Justice of the European Union on Directives 2000/43/EC and 2000/78/EC The Evolution and Impact of the Case-Law of the Court of Justice of the European Union on Directives 2000/43/EC and 2000/78/EC Justice Europe Direct is a service to help you find answers to your questions about the European Union. Freephone number (*): 00 800 6 7 8 9 10 11 (*) Certain mobile telephone operators do not allow access to 00 800 numbers or these calls may be billed. A great deal of additional information on the European Union is available on the Internet. It can be accessed through the Europa server http://europa.eu Cataloguing data can be found at the end of this publication. Luxembourg: Office for Official Publications of the European Union, 2012 ISBN 978-92-79-27787-0 doi: 10.2838/38584 © European Union, 2012 Reproduction is authorised provided the source is acknowledged. Printed in Luxembourg PRINTED ON WHITE CHlorine-fREE paper The Evolution and Impact of the Case-Law of the Court of Justice of the European Union on Directives 2000/43/EC and 2000/78/EC European Network of Legal Experts in the non-discrimination field Written by Colm O‘Cinneide Supervised by Christa Tobler European Commission Directorate-General for Justice Manuscript completed in November 2012 This report was financed by and prepared for the use of the European Commission, Directorate-General for Justice. It does not necessarily represent the Commission’s official position. The text of this report was drafted by Colm O’Cinneide and supervised by Christa Tobler on the authority of the European Network of Legal Experts in the non-discrimination field (on the grounds of Race or Ethnic origin, Age, Disability, Religion or belief and Sexual Orientation), managed by: Human European Consultancy The Migration Policy Group Maliestraat 7 Rue Belliard 205, Box 1 3581 SH Utrecht 1040 Brussels Netherlands Belgium Tel +31 30 634 1422 Tel +32 2 230 5930 Fax +31 30 635 2139 Fax +32 2 280 0925 [email protected] [email protected] www.humanconsultancy.com www.migpolgroup.com This publication is supported for under the European Community Programme for Employment and Social Solidarity – PROGRESS (2007-2013). This programme is managed by the Directorate-General for Justice, of the European Commission. It was established to financially support the implementation of the objectives of the European Union in the employment and social affairs area, as set out in the Social Agenda, and thereby contribute to the achievement of the Lisbon Strategy goals in these fields. For more information see: http://ec.europa.eu/progress For more information on publications from the European Network of Legal Experts in the non-discrimination field see: http://ec.europa.eu/social/main.jsp?catId=615&langId=en&moreDocuments=yes © Photography and design by Ruben Timman / www.nowords.nl For any use or reproduction of photos which are not under European Communities copyright, permission must be sought directly from the copyright holder(s). n THE EVOLUTION AND IMPACT OF THE Case-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION n Table of Contents Executive Summary 5 Introduction 10 Part I The General Interpretative Approach Adopted by the CJEU in Interpreting the 2000 13 Directives 1.1 Mangold v Helm 15 1.2 The Mangold Controversy 16 1.3 Mangold Affirmed – The Bartsch and Kücükdeveci Judgments 17 1.4 The Relationship between the 2000 Directives, the General Principle of Equal 20 Treatment and the EU Charter of Fundamental Rights 1.5 The Principles Applied by the CJEU in Interpreting the Provisions of the 2000 Directives 22 Part II The CJEU’s Case-Law on the Scope of the 2000 Directives 25 2.1 Palacios de la Villa and National Retirement Ages 26 2.2 Maruko, Römer and Benefits Linked to Employment 28 2.3 Runevič-Vardyn and the Limits to the Scope of Directive 2000/43/EC 29 2.4 Chacón Navas and the Limits to the Scope of Directive 2000/78/EC 31 Part III The Case-Law of the CJEU in Respect of the Operative Provisions of the 2000 35 Directives 3.1 Direct Discrimination 36 3.2 Indirect Discrimination 39 3.3 Harassment 41 3.4 Reasonable Accommodation 42 3.5 Age Discrimination and the Provisions of Directive 2000/78/EC 42 3.6 Age Discrimination and the Question of Objective Justification 45 3.7 Age Distinctions as Genuine Occupational Requirements 52 3.8 Remedies and Enforcement 53 Part IV The Impact of the CJEU’s Jurisprudence on National Law 57 Part V Trends and Future Directions 65 Conclusion 71 Bibliography 73 i. Academic and Professional Publications 73 ii. Legislation 75 Table of Cases 77 Court of Justice of the European Union 77 i) Relating to the Provisions of Directive 2000/43/EC and 2000/78/EC 77 ii) Relating to Other Provisions of EU Law 79 3 thematic report n THE EVOLUTION AND IMPACT OF THE Case-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION n Albert Jan | 1978 thematic report 4 n THE EVOLUTION AND IMPACT OF THE Case-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION n Executive Summary 1. Directive 2000/43/EC prohibits discrimination on the grounds of racial or ethnic origin in the spheres of employment and occupation, social protection, social advantages, education and access to and supply of goods and services, while Directive 2000/78/EC prohibits discrimination on the grounds of age, disability, religion or belief and sexual orientation in the sphere of employment and occupation. 2. States were required to implement Directive 2000/43/EC by 19 July 2003 and Directive 2000/78/EC by 2 December 2003, with the exception of the provisions of Directive 2000/78/EC relating to age and disability which states were obliged to implement by 2 December 2006 at the latest. Since then, an ever-growing number of cases have been referred to the Court of Justice of the European Union (the ‘CJEU’) from national courts via the preliminary reference procedure, whereby national courts can refer questions of EU law to the Court before resolving disputes which involve issues relating to the interpretation of European Union law or to the validity of European Union secondary law. In response, the Court has delivered a series of important judgments which have clarified how many of the key provisions of the Directives should be interpreted and applied. This report analyses the evolution and impact of this case-law, up to 30th August 2012. 3. The Court’s case-law has established that the 2000 Directives should be interpreted as giving specific expression to a fundamental norm of the EU legal order, namely the general principle of equal treatment. This principle is derived from the well-established human right to equality and non-discrimination that exists in international human rights law and the constitutional traditions of European Union member states. It is also set out in Article 21 of the EU Charter of Fundamental Rights, which since December 2009 has the same legal status as the EU treaties. This is the lens through which the CJEU interprets the specific provisions of both Directives, which have been given a purposive interpretation in line with this approach. 4. This interpretative approach was set out initially in the Court’s very first judgment that concerned the 2000 Directives, Mangold v Helm. In this case, the Court ruled that Directive 2000/78/EC should be read as setting out a ‘general framework’ of rules which gave specific expression to a general principle of equal treatment. In its subsequent cases of Bartsch and Kücükdeveci, the Court clarified and reaffirmed the approach it had adopted in Mangold. In Kücükdeveci, the Court confirmed that the principle of equal treatment should be the ‘basis’ for interpreting the provisions of the 2000 Directives, along with the fundamental right to non-discrimination set out in Article 21 of the Charter of Fundamental Rights. It reiterated this important point in its subsequent judgments in the cases of Runevič-Vardyn and Hennings. 5. Furthermore, the Court has made it clear that the Directives should not be read in a narrow or excessively formalistic manner. In the case of Coleman, the Court expressly rejected arguments that the provisions of Directive 2000/78/EC should be read as setting minimum standards. Instead, it interpreted the Directive as intended to provide effective and substantive protection against discrimination. The Court adopted a similar approach in the cases of Firma Feryn and Meister, while in the cases of Petersen and Prigge it concluded that exceptions to the principle of equal treatment set out in the 2000 Directives must be given a strict and narrow interpretation. 6. It also appears as if the provisions of the Directives also need to be interpreted with reference to the values of human dignity and personal autonomy. As Maduro AG stated in his opinion in the Coleman case, these are the values which animate the enabling provisions of Article 13 TEC (now Article 19 TFEU) which provide the legal basis for the 2000 Directives. Furthermore, the full range of rights protected by the EU Charter of Fundamental Rights must be taken into account in interpreting the Directives, as the Court confirmed in Fuchs and Hennigs 5 thematic report n THE EVOLUTION AND IMPACT OF THE Case-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION n where it took into account the right to engage in work set out in Article 15(1) of the Charter and the right to engage in collective bargaining set out in Article 28 respectively. 7. The other secondary objectives set out in the Recitals of the Directives are also relevant: in the case of Fuchs, the Court took account of the aim to promote diversity in the workforce as set out in Recital 25 of Directive 2000/78/ EC.
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