A short while ago we drew your attention to a curious article co-authored by Roman Herzog, the former President of Germany, complaining about the manner in which the Court of Justice arrogated jurisdiction in Case C-144/04 Werner Mangold v. Rüdiger Helm. That case was about age discrimination.
The Court of Justice has handed down an interesting judgment in a follow-on case in Case C-427/06 Birgit Bartsch v. Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH. That case too concerned age discrimination. It posed the question whether the primary law of the EC (the EC Treaty) prohibits age discrimination and requires member States to prevent age discrimination even if the allegedly discriminatory treatment is unconnected to EC law.
The story goes like this. The young Mrs Bartsch, who was born in 1965, married Mr Bartsch in 1986. Mr Bartsch was 21 years older than she was as he was born in 1944. He died on May 5th 2004. In February 1988 Mr Bartsch had concluded an employment contract with Bosch-Siemens Hausgeräte GmbH (‘BSH’), started working with in March 1988 and was employed as a salesman until his death.
After her husband's death, Mrs Bartsch applied to his employer for her survivor's pension. The problem was that according to the rules of the employer's pension fund, known as "the guidelines" no survivor's pension would be paid out if the widow/widower is more than 15 years younger than the deceased former employee and Mrs Bartsch was 21 years younger than her husband. Consequently, the employer's fund refused payment. Mrs Bartsch challenged the refusal before the German courts which then referred the matter to the Court of Justice.
The principal issue which fell to the Court of Justice to decide was whether the application, which the courts of member States must ensure, of the prohibition under EC law of discrimination on the ground of age is mandatory where the allegedly discriminatory treatment contains no link with EC law.
The Court held that it is clear from the case-law of the Court that, where national rules fall within the scope of EC law and reference is made to the Court for a preliminary ruling, the Court must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the general principles of Community law (see Case C‑144/04 Mangold, paragraph 75).
But, the Court found, the present case had no connection with EC law. Neither Directive 2000/78 nor Article 13 EC could apply to the situation such as that arose in this case. In the first place, the guidelines do not constitute a measure implementing Directive 2000/78. Secondly, the death of Mr Bartsch occurred before the time-limit allowed to the member State concerned for transposing the directive had expired.
As for Article 13 EC, which permits the Council, within the limits of the powers conferred upon it by the EC Treaty, to take appropriate action to combat discrimination based on age, the Court held that it cannot, as such, bring within the scope of EC law, for the purposes of prohibiting discrimination based on age, situations which do not fall within the framework of measures adopted on the basis of that article, specifically Directive 2000/78 before the time-limit provided therein for its transposition has expired.
The Court concluded that the application, which the courts of member States must ensure, of the prohibition under EC law of discrimination on the ground of age is not mandatory where the allegedly discriminatory treatment contains no link with Community law.
Perhaps Mr. Hertzog will sleep a little easier now. Or perhaps not.