Mangold decision

from Wikipedia, the free encyclopedia

The Mangold decision of November 22, 2005 is an important decision of the European Court of Justice (ECJ) in the field of labor law .

The European Court of Justice had to decide in case C-144/04 - Werner Mangold v Rüdiger Helm - on the basis of a submission by the Labor Court in Munich , whether a fixed-term employment contract, which is expressly based only on Section 14 Part-Time and Temporary Employment Act (TzBfG), is compatible with Community law .

In an apparently constructed legal dispute, an employee who was 56 years old when the employment contract was concluded had asserted that the contractual clause, which Section 14 (3) TzBfG cites as the sole reason for the limitation of the contract, was not limited by Directive 1999/70 / EC Employment contracts and Directive 2000/78 / EC on equal treatment in employment and occupation is compatible.

Section 14 (3) TzBfG, which allowed the conclusion of fixed-term employment contracts with employees over 58 years of age without restriction, was changed in the course of the Hartz legislation ( "Hartz I" ) with effect from January 1, 2003 insofar as the age limit up to December 31, 2006 was reduced to 52 years.

The decision of the ECJ

The ECJ first found that the submission was admissible. It is irrelevant that the parties apparently brought about the underlying case “fictitiously or artificially” for this purpose.

There is no breach of Directive 1999/70 / EC. When the directive was implemented in German law, the age limit from which employment contracts with older employees may be limited in time was reduced from 60 to 58 years. The directive should not be interpreted as prohibiting the lowering of the age limit.

Regarding the question of whether Section 14 (3) TzBfG violates Directive 2000/78 / EC, the ECJ, however, considered direct unequal treatment on the basis of age to be given ( age discrimination ). The aims of the German legislature to promote the integration of older unemployed workers into the labor market are, however, a legitimate purpose which is in the general interest. A regulation that causes age discrimination is only justified, however, if it is “appropriate and necessary”, that is, proportionate , to achieve the legitimate aim . This is not the case here, because with Section 14 (3) TzBfG in the version applicable at the time, older employees over 52 years of age ran the risk of being permanently excluded from open-ended employment.

For this reason, Article 6 (1) of Directive 2000/78 / EC of the Council of November 27, 2000 should be interpreted to the effect that it contradicts Section 14 (3) TzBfG. The national court must guarantee the full effectiveness of Community law. Therefore, the conflicting provision of national law must remain “unapplied”. In addition, it is irrelevant that the deadline for implementing the directive had not yet expired while the standard to be examined was in force.

In addition, the ECJ bases its judgment on the general principle of non-discrimination, which as part of all constitutions is also Community law. The scope of application of this fundamental right was opened up, since the TzBfG is an implementation law of the older Directive 1999/70 / EC, i.e. an agency situation is given. As the implementation of a directive, the judgment defines “all national measures (...) which are intended to ensure that the aim pursued by the directive is achieved”.

The opaque mixing of both approaches, namely the preliminary effect of the directive on the one hand and the already known fundamental rights dogmatics of the ECJ (cf. the Solange II judgment of the BVerfG, in which it recognizes the fundamental rights dogmatics of the ECJ), explains large parts of the massive criticism of the judgment has experienced.

Consequences of the judgment

The immediate consequence of the judgment was the incompatibility of Section 14 (3) sentence 4 TzBfG in the version applicable at the time with European Community law. Since then, the provision has not been allowed to be applied by the German courts because of the primacy of Community law over national law. Employment contracts that contained a fixed term based on this were or are therefore effective for an indefinite period.

criticism

As a result of the Mangold ruling, the European Court of Justice was accused of exceeding its competences by calling German law "inapplicable". The ECJ acted “ultra vires” in this respect and exceeded its competence to interpret Community law. In addition, it was complained that the “inapplicability” of Member State law leads - contrary to the system - to a “direct horizontal third-party effect” of the directive between private individuals. The objection to this criticism is that the ECJ does not base its decision on the failure to implement Directive 2000/78 / EC, the implementation period of which had not yet expired at the time the employment contract was signed, but on the violation of European primary law. A "direct horizontal third-party effect" of the directive cannot be inferred from the decision. The fact that a violation of primary law results in the inapplicability of national law has been known since the judgment of the ECJ in the Costa / ENEL case of July 15, 1964. Section 14 (3) TzBfG (old version) did not serve to implement Directive 2000/78 / EC, but instead it served to implement Directive 1999/70 / EC. Insofar as a member state implements a directive, it acts as an "extended arm" of the EU and must adhere to primary law requirements. This was decided several times by the ECJ and accepted by the literature. The Mangold decision would be part of the “dogmatic tradition” of the ECJ. This view is supported by the decision of the ECJ in the Bartsch / Bosch & Siemens Hausgeräte case of September 23, 2008, in which it clarifies that Directive 2000/78 / EC does not oblige the courts of the member states to comply with primary law before the end of its implementation period Guarantee prohibition of age discrimination. The constellation of the Mangold decision should be assessed differently, since "[...] the national regulation is a measure for the implementation [...] of Directive 1999/70 / EC", "which brings the regulation in question into the scope of application of Community law. "

Honeywell decision of the Federal Constitutional Court

The Federal Constitutional Court, however, confirmed the decision of the ECJ in its decision of July 6, 2010 (Honeywell decision). The constitutional complaint was based on a decision by the Federal Labor Court, which had applied the principles of the Mangold decision and which had also refused to refer the matter to the ECJ again for a preliminary ruling. The Second Senate of the Federal Constitutional Court decided with a large majority and based on principles from the Lisbon judgment , this practice and the judgment of the European Court of Justice did not violate German constitutional law.

In its decision, the court again deals very fundamentally with the tasks of the Federal Constitutional Court in reviewing legal acts of the European Union. This is particularly about the relationship between the Federal Constitutional Court and the European Court of Justice. It follows from the principle of limited individual authorization that the Federal Constitutional Court is “entitled and obliged” to “review actions of the European organs and institutions to determine whether they are based on an apparent violation of competencies or the exercise of competencies in the non-transferable area of ​​constitutional identity ... to determine the inapplicability of acts beyond competence for the German legal system. "A so-called ultra vires control by the Federal Constitutional Court is only considered, if it is evident that acts of the European organs and institutions took place outside the assigned competence."

In its judgment, the European Court of Justice did not pursue any inadmissible legal training in this sense. With the Mangold decision, the ECJ only created a new group of cases for the treatment of legal norms that were issued in violation of the directive. The decision of the Federal Labor Court therefore does not violate the complainant's fundamental rights of contractual freedom and freedom of occupation, as well as the right to a legal judge . The protection of legitimate expectations has not been violated either, which is contrary to the primacy of application of Community law.

With regard to the Lisbon judgment of the Federal Constitutional Court, the above decision was seen as a turning point in initial assessments. The Constitutional Court has thus partially withdrawn the Lisbon judgment and in fact given priority to the European Court of Justice. The Federal Constitutional Court shies away from the conflict with the ECJ and practices self-restraint. However, there were also some qualifying voices who see a certain continuity with the Lisbon judgment.

With reference to Article 1, Paragraph 1 of the Basic Law, the Federal Constitutional Court ruled on December 15, 2015 in its Arrest Warrant II decision: “ Sovereign acts of the European Union and - insofar as they are determined by Union law - acts of German public authority are with a view to not to measure the priority of application of Union law against the standard of the fundamental rights anchored in the Basic Law. However, the priority of application only extends to the extent that the Basic Law and the Consent Act permit or provide for the transfer of sovereign rights. It is limited by the constitutional identity of the Basic Law designed in Article 23, Paragraph 1, Clause 3 in conjunction with Article 79, Paragraph 3 of the Basic Law, which is constitutional change and integration-proof ”. This results in a constitutional control of EU law by the Federal Constitutional Court because of a violation of human dignity. The Federal Constitutional Court has thus prevented the execution of an EU arrest warrant. See the development in the leading decisions: Solange I , Solange II , Maastricht judgment and Lisbon judgment .

literature

Individual evidence

  1. ↑ a b ECJ: C-144/04 - Mangold - judgment of November 22, 2005. Retrieved on August 30, 2010 (Slg. 2005, I-9981-10042 = NJW 2005, 3695 = NZA 2005, 1345).
  2. ↑ a b c Jobst-Hubertus Bauer , Christian Arnold “Junk” is followed by “Mangold” - European law replaces German labor law (NJW 2006, 6)
  3. ↑ ECJ, C-144/04 - Mangold - judgment of November 22, 2005, Slg. 2005, I-9981, No. 32ff.
  4. ↑ Council Directive 99/70 / EC of June 28, 1999 on the ETUC-UNICE-CEEP framework agreement on fixed-term employment contracts , accessed on August 30, 2010 . OJ L 175 of July 10, 1999, pp. 43-48
  5. ↑ Directive 2000/78 / EC of the Council of November 27, 2000 laying down a general framework for the implementation of equal treatment in employment and occupation , accessed on August 30, 2010 . OJ L 303 of December 2, 2000, pp. 16-22
  6. ^ First law for modern services on the labor market ( BGBl. 2002 I p. 4607 ) (PDF; 97 kB)
  7. ↑ ECJ: C-144/04 - Mangold - judgment of November 22, 2005. Retrieved on August 30, 2010 (Slg. 2005, I-9981-10042 = NJW 2005, 3695 = NZA 2005, 1345, paragraph 32ff.) .
  8. ↑ ECJ: C-144/04 - Mangold - judgment of November 22, 2005. Retrieved on August 30, 2010 (Slg. 2005, I-9981-10042 = NJW 2005, 3695 = NZA 2005, 1345, Item 44ff., 47).
  9. ↑ ECJ: C-144/04 - Mangold - judgment of November 22, 2005. Retrieved on August 30, 2010 (Slg. 2005, I-9981-10042 = NJW 2005, 3695 = NZA 2005, 1345, paragraph 52).
  10. ↑ ECJ: C-144/04 - Mangold - judgment of November 22, 2005. Retrieved on August 30, 2010 (Slg. 2005, I-9981-10042 = NJW 2005, 3695 = NZA 2005, 1345, paragraph 57).
  11. ↑ ECJ: C-144/04 - Mangold - judgment of November 22, 2005. Retrieved on August 30, 2010 (Slg. 2005, I-9981-10042 = NJW 2005, 3695 = NZA 2005, 1345, No. 58ff.) .
  12. ↑ ECJ: C-144/04 - Mangold - judgment of November 22, 2005. Retrieved on August 30, 2010 (Slg. 2005, I-9981-10042 = NJW 2005, 3695 = NZA 2005, 1345, Item 61f.) .
  13. ↑ ECJ: C-144/04 - Mangold - judgment of November 22, 2005. Accessed on August 30, 2010 (Slg. 2005, I-9981-10042 = NJW 2005, 3695 = NZA 2005, 1345, Item 64).
  14. ↑ ECJ: C-144/04 - Mangold - judgment of November 22, 2005. Retrieved on August 30, 2010 (Slg. 2005, I-9981-10042 = NJW 2005, 3695 = NZA 2005, 1345, paragraph 65).
  15. ↑ ECJ: C-144/04 - Mangold - judgment of November 22, 2005. Retrieved on August 30, 2010 (Slg. 2005, I-9981-10042 = NJW 2005, 3695 = NZA 2005, 1345, items 77, 79 ).
  16. ↑ ECJ: C-144/04 - Mangold - judgment of November 22, 2005. Accessed on August 30, 2010 (Slg. 2005, I-9981-10042 = NJW 2005, 3695 = NZA 2005, 1345, paragraph 70ff.) .
  17. ↑ Haltern, Ulrich R., 1967-: European law: Dogmatics in context. Volume II: Rule of Law - composite dogmatics - basic rights . 3. Edition. Tübingen 2017, ISBN 978-3-16-155344-8 .
  18. ↑ BVerfG: Decision of the Second Senate of July 6, 2010 - 2 BvR 2661/06. Retrieved August 30, 2010 (paragraph 53).
  19. ↑ The regulation has since been changed. In the version that has been in force since May 1, 2007, according to the wording of the regulation, a fixed term of employment contracts for older employees aged 52 and over is now permissible if they are "immediately before the start of the fixed-term employment relationship at least four months without employment within the meaning of Section 119 (1) No. 1 of Book Three of the Social Code, received short-time transfer allowance or took part in a publicly funded employment measure under Book Two or Third of the Social Code ".
  20. ↑ BVerfG: Decision of the Second Senate of July 6, 2010 - 2 BvR 2661/06 -. Retrieved on August 30, 2010 (differing opinion of the Landau judge, Rn. 105ff. With further evidence).
  21. ^ Benedikt Forschner: European law and national legal order: "Mangold" in a clear dogmatic context. (PDF; 142 kB) Retrieved on December 3, 2011 (ZJS 6/2011, 456).
  22. ↑ a b BVerfG: Mangold ruling of the European Court of Justice does not constitute a constitutionally objectionable violation of competences. Accessed on August 30, 2010 (press release no. 69/2010 of August 26, 2010).
  23. ↑ Federal Constitutional Court: Order of the Second Senate of 6 July 2010 - 2 BvR 2661/06. Retrieved August 30, 2010 .
  24. ^ BAG: Judgment of April 26, 2006 - 7 AZR 500/04. Retrieved on August 30, 2010 (NZA 2006, 1162 = AP Nr 23 to § 14 TzBfG = DB 2006, 1734 = AiB 2006, 646).
  25. ↑ BAG: § 14 para. 3 sentence 4 TzBfG not applicable. Retrieved August 30, 2010 (Press Release No. 27/06).
  26. ↑ BVerfG: Decision of the Second Senate of July 6, 2010 - 2 BvR 2661/06. Retrieved on August 30, 2010 (Rn. 48ff.).
  27. ↑ preceded in particular the following decisions: As long as I , Solange II , the banana market-decision ( Federal Constitutional Court: . Order of the Second Senate of 7 June 2000 to 2 BvL 1/97 Accessed 30 August 2010 . ), The Maastricht judgment and the decision on the Lisbon Treaty .
  28. ↑ BVerfG: Decision of the Second Senate of July 6, 2010 - 2 BvR 2661/06. Retrieved August 30, 2010 (paragraph 55).
  29. ↑ BVerfG: Decision of the Second Senate of July 6, 2010 - 2 BvR 2661/06. Retrieved on August 30, 2010 (Rn. 61): "A violation of the principle of limited individual authorization can only be seen if the European organs and institutions have exceeded the limits of their competencies in a way that specifically violates the principle of limited individual authorization (Art 23 para. 1 GG), the violation of competencies is in other words sufficiently qualified (cf. on the wording “sufficiently qualified” as a constituent element in EU liability law, for example, ECJ, judgment of 10 July 2003, case C-472/00 P, Fresh Marine, Coll. 2003, pp. I-7541 Rn. 26 f.). This means that the unrelated action of the Union authority is obvious and the attacked act in the competency structure between the member states and the Union with regard to the principle of limited individual authorization and the rule of law is significant "
  30. ↑ BVerfG: Decision of the Second Senate of July 6, 2010 - 2 BvR 2661/06. Retrieved on August 30, 2010 (Rn. 49ff.).
  31. ↑ BVerfG: Decision of the Second Senate of July 6, 2010 - 2 BvR 2661/06. Retrieved August 30, 2010 (paragraph 77).
  32. ↑ BVerfG: Decision of the Second Senate of July 6, 2010 - 2 BvR 2661/06. Retrieved on August 30, 2010 (Rn. 49ff., 87ff.).
  33. ↑ BVerfG: Decision of the Second Senate of July 6, 2010 - 2 BvR 2661/06. Retrieved on August 30, 2010 (Rn. 80ff., 86).
  34. ↑ Joachim Wuermeling : What remains of the Lisbon judgment? (PDF; 69 kB) Europa-Union Deutschland Europa-Professionell, August 30, 2010, accessed on August 30, 2010 : “... to the exercise of the ultra vires control established by the Lisbon judgment, and the a central stumbling block, demands are hardly achievable ... The style, the line of thought and the language to Europe in the new decision stand in sharp contrast to the Lisbon judgment. The court also cites quite different legal scholars in quotes than in the ruling from last year. Anyone who has read both judgments can hardly believe that they come from the same court - and even from the same Senate. "
  35. ↑ Just don't argue. (No longer available online.) Süddeutsche Zeitung, August 27, 2010, p. 4 , formerly in the original ; Retrieved August 30, 2010 .  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Toter Link / archiv.sueddeutsche.de  
  36. ↑ Thorsten Jungholt: The showdown of the highest judges is canceled. Die Welt, August 27, 2010, accessed on August 30, 2010 .
  37. ^ Christian Rath: Defeat for national hardliners. Karlsruhe calls off the attack. Die tageszeitung, August 26, 2010, accessed on August 30, 2010 : “The judgment on the Lisbon Treaty 2009 indicated a moderate Karlsruhe line. One will only intervene if the ECJ judges “clearly” beyond its competences (“ultra vires”). It was also promised that Karlsruhe would only use its control function in a “friendly to European law” manner. The Constitutional Court is even more cautious in the now published Honeywell decision. Only “obviously incompetent” judgments of the ECJ should be objected to. In addition, the judgment must lead to a "structurally significant shift in the structure of competencies between the EU and member states". In addition, Karlsruhe wants to give the Luxembourg court the opportunity to comment before it declares a CJEU judgment inapplicable. In any case, the ECJ ruling on age discrimination did not expand the competences of the EU and therefore does not have to be blocked. "
  38. ↑ Decision of December 15, 2015 - 2 BvR 2735/14 .
  39. ↑ Quoted from: Press Release No. 4/2016 of January 26, 2016 .