Grundsätzliche Bedeutung der gemeinschaftsrechtlichen Diskriminierungsverbote nach der Entscheidung Mangold

This extensive case note adds an original contribution to the debate on the ECJ ruling in Mangold, which established that the ban of discrimination (on grounds of age) constitutes a general principle of Community law (now: EU law). The ECJ derived from this finding that a Member State is barred from introducing new legislation discriminating on grounds of age while under an obligation of implementing Directive 2000/78, banning such discrimination. This had been interpreted in literature as recognising direct horizontal effects of the directive and/or the general principle of non-discrimination, resulting in a challenge of compliant case law before the German Constitutional Court. The author argues that the Court did not accept direct substituting horizontal effect of a Directive, but instead used the general constitutional principle of non-discrimination to establish exclusive effects of directives in horizontal relations. This argument was taken up by the Constitutional Court in its ruling accepting the case law of the Federal Labour Court which implemented ECJ case law. In the framework of the partnership between Arbeit und Recht and the Industrial Law Journal, an English language version of this article was also published in Industrial Law Journal, confirming its fundamental relevance.
The Journal editors' summary of the article in English reads: "By classifying the anti-discrimination directives as a positivization of the constitutional principle of equal treatment in European Community law, the European Court of Justice has raised high expectations by hinting at horizontal effects of directive statutes between private parties. This will have long-term importance and, in the short term, affect the development of German anti-discrimination law. Thus it has become questionable whether hierarchies between different causes of discrimination can be maintained with regard to Community law, whether national law may acknowledge such differences, and how these may be justified."