The habit of conflicting interpretation translated as compliance with the principle of legal certainty

Hannah Arendt maintained that only the hypocrite is truly rotten to the core. Unless one persists in being hypocrite about the rather habitual occurrence of the non-compliant behaviour in human beings, a fair chance to learn something useful may come about. The Grand Chamber ruling in DI case sheds light on a situation where the national courts persist in maintaining an incompatible understanding of EU law obligations despite the fact that they are aware of this incompatibility. A provoking question arose in this context. If the harmed individual is entitled to damages according to the doctrine of state liability, does the Member State still have an obligation to set aside the incompatible provisions of national law?  

DI v Estate of Karsten Eigil Rasmussen, C-441/14 Facts

In the case mentioned above, a person has been dismissed at age of 60 after working 25 years for the same employer being thus entitled to a severance allowance equal to three months’ salary under Paragraph 2a(1) of the Law on salaried employees. However, the applicable (Danish) law has been constantly interpreted in favour of an exception from the entitlement for the case of employees that could benefit from old-age pension provided under a scheme joined by the worker before reaching the age of 50.

In 2010, October, the CJEU issued a preliminary ruling dealing with the same issue. The ruling stated that the provisions of the Directive 2000/78 that prohibit age discrimination in relation to employment relations must be interpreted as precluding national legislation pursuant to which workers who are eligible for an old-age pension from their employer under a pension scheme which they have joined before attaining the age of 50 years cannot claim a severance allowance aimed at assisting workers with more than 12 years of service in the undertaking in finding new employment. The difference between C-441/14 and C-499/08 - as to the factual background - is that the worker in C-441/14 had already found a new employment at the relevant time. The purpose of the allowance is to assist the beneficiary in finding a new job, thus the matter concerns the exercise of the right to work and the discriminatory treatment of older workers.

Ruling of the CJEU in Case C-441/14

The case projects a number of theoretically interesting questions, hopefully bringing about an enlightenment of legal thinkers sans frontières.

1. The relation between the principle of non-discrimination in EU law and their reflection in Directive 2000/78.

The general principle prohibiting discrimination on grounds of age is reflected by the provisions of Directive 2000/78, many treaties of international law and national constitutions. It is enshrined in Article 21 of the Charter of Fundamental Rights of the European Union, thus it must be regarded as a general principle of EU law. Within the scope of occupation and employment the directive gives concrete expression to the named principle and the contested national legislation falls within the scope of EU law, and, accordingly, within the scope of the general principle prohibiting discrimination on grounds of age.

If the worker decides to remain on the employment market after the dismissal, s/he must be granted severance allowance. The answer may be different, if the worker takes his retirement, since in this case s/he is not placed in the same position with younger workers who must seek a new job.

2. What kind of limitation - if any - is implied by the lack of obligation to interpret national law contra legem?

The H?jesteret (The Danish Supreme Court) affirmed that an interpretation that is consistent with the obligations imposed by EU law - the principle of non-discrimination on grounds of age would jeopardise the principles of the protection of legitimate expectations and legal certainty and would be contra legem. Under national law, the employer is not obliged to pay allowance. Shall the private-sector employer be compelled to pay allowance in order to ensure compliance with the (unwritten) general principle of EU law?

The duty to interpret national law in conformity with EU law entails the obligation for national courts to change its established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive. The mere fact that the national court has consistently interpreted that provision in a manner that is incompatible with EU law does not support the claim of impossibility to interpret national law in a manner that is consistent with EU law.

If the impossibility is real, the national court would nonetheless be under an obligation to provide, within the limits of its jurisdiction, the legal protection which individuals derive from EU law and to ensure the full effectiveness of that law, setting aside if need be any conflicting provision of national legislation.

The CJEU reminds that  the principle prohibiting discrimination on grounds of age confers on private persons an individual right that they may invoke in private disputes (horizontal application).

3. May an employer obtain protection against the obligation to pay allowance by relying on the principles of legal certainty and of the protection of legitimate expectations?

Only under exceptional circumstances the defendant (employer) could benefit from the limitation of the temporal effect of the CJEU interpretation. However, this limitation cannot be imposed against an individual (employee) who has brought proceedings culminating in the CJEU interpreting EU law as precluding the rule of national law in question.

4.  Does the obligation to pay compensation for state liability reduce the obligation to disapply national law that is at odds with the general principle prohibiting discrimination on ground of age?

The duty 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 is not altered by the possibility to bring an action for damages for a breach of EU law attributable to the Member State.