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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Bulicke (Social policy) [2010] EUECJ C-246/09 (08 July 2010) URL: http://www.bailii.org/eu/cases/EUECJ/2010/C24609.html Cite as: [2011] 1 CMLR 9, [2010] EUECJ C-246/9, [2010] EUECJ C-246/09, [2011] All ER (EC) 273

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(Directive 2000/78/EC – Articles 8 and 9 – National procedure for the enforcement of obligations under the Directive – Period within which a claim must be lodged – Principles of equivalence and effectiveness – Principle of non-reduction of an earlier level of protection)

In Case C-246/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Landesarbeitsgericht Hamburg (Germany), made by decision of 3 June 2009, received at the Court on 6 July 2009, in the proceedings

Susanne Bulicke

Deutsche Büro Service GmbH,

composed of J.N. Cunha Rodrigues, President of the Chamber, P. Lindh (Rapporteur), A. Rosas, A. Ó Caoimh and A. Arabadjiev, Judges,

Advocate General: Y. Bot,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Ms Bulicke, by K. Bertelsmann, Rechtsanwalt,

–        the German Government, by M. Lumma and N. Graf Vitzthum, acting as Agents,

–        Ireland, by D. O’Hagan, acting as Agent, and N.J. Travers, Barrister,

–        the Commission of the European Communities, by J. Enegren and B. Conte, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This reference for a preliminary ruling concerns the interpretation of Articles 8 and 9 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16; ‘the Directive’).

2        The reference has been made in the course of proceedings between Ms Bulicke and Deutsche Büro Service GmbH (‘DBS’) in which Ms Bulicke claims compensation for the discrimination in recruitment on grounds of age which she considers she has suffered.

 Legal context

 European Union legislation

3        Under Article 1 of the Directive, its purpose is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.

4        Recitals 28 to 30 of the Directive are worded as follows:

‘(28) This Directive lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions. The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State.

(29)      Persons who have been subject to discrimination based on religion or belief, disability, age or sexual orientation should have adequate means of legal protection. …

(30)      The effective implementation of the principle of equality requires adequate judicial protection against victimisation.’

5        Article 8 of the Directive states:

‘1.      Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive.

2.      The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive.’

6        Article 9 of the Directive provides:

‘1.      Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.

…

3.      Paragraphs 1 and 2 are without prejudice to national rules relating to time limits for bringing actions as regards the principle of equality of treatment.’

 National legislation

 The General Law on Equal Treatment

7        The General Law on Equal Treatment (Allgemeines Gleichbehandlungsgesetz) of 14 August 2006 (BGBl. 2006 I, p. 1897), amended by the Law of 2 December 2006 (BGBl. 2006 I, p. 2724; ‘the AGG’) transposed the Directive.

8        Paragraph 1 of the AGG, entitled ‘Objective of the law’, states:

‘The objective of this law is to prevent or eliminate any discrimination on grounds of race, ethnic origin, sex, religion or belief, disability, age or sexual identity.’

9        Paragraph 15 of the AGG, entitled ‘Compensation and damages’, states as follows:

‘(1)      Where there is an infringement of the prohibition of discrimination, the employer shall be required to make good the damage caused thereby. This shall not apply if the employer is not responsible for the breach of obligations.

(2)      The employee may claim appropriate financial compensation for non-pecuniary damage. In the case of failure to recruit a prospective employee, the compensation may not exceed three months’ salary if the employee would not have been recruited even if the selection procedure had not been discriminatory.

(3)       Where collective agreements apply, the employer is required to pay compensation only if he acts intentionally or with gross negligence.

(4)      A claim under subparagraph 1 or 2 must be made in writing within a time-limit of two months except where otherwise agreed by the parties to a collective agreement. In the case of a job application or a promotion, the time-limit commences on receipt of the rejection, and in other cases of discrimination, at the time when the employee acquires knowledge of the discrimination.

(5)      Claims against an employer which arise from other legal provisions are unaffected.

(6)      If an employer infringes the prohibition of discrimination in Paragraph 7(1), this does not establish any right to found an employment relationship, a vocational training relationship or a promotion, unless such a right arises on another legal basis.’

 The Civil Code

10      Paragraph 195 of the German Civil Code (Bürgerliches Gesetzbuch; ‘the BGB’) states that the standard limitation period is three years.

11      Paragraph 611a of the BGB, in the version in force until 17 August 2006, provided:

‘(1)      An employer may not discriminate against an employee on grounds of sex under any agreement or measure, in particular when founding a contractual relationship, …

(2)      If an employer infringes the prohibition of discrimination laid down in subparagraph 1 when founding an employment relationship, an applicant who has been discriminated against may claim appropriate financial compensation; …

(4)      A claim under [subparagraph] 2 … must be made in writing within a period commencing on receipt of the rejection of the job application. The length of the period is determined by any limitation period for the bringing of claims for damages in respect of the employment relationship in question; it must be at least two months. If the employment relationship in question does not provide for such a time-limit, the time-limit shall be six months.

…’

 The Law on Labour Courts

12      Paragraph 61b of the Law on Labour Courts (Arbeitsgerichtsgesetz) of 2 July 1979 (BGBl, 1979 I. p. 853; ‘the ArbGG’) states that ‘any action for damages brought pursuant to Paragraph 15 of the AGG must be submitted within three months of the written claim’ made to the employer.

 The dispute in the main proceedings and the question referred for a preliminary ruling

13      On 16 November 2007, Ms Bulicke, who was aged 41 at the time, replied to an advertisement published in a newspaper by DBS with a view to filling a vacant post. The advertisement was worded as follows:

‘We are looking for motivated members of staff (male/female) for our young team in the City. Do you like talking on the phone? Then you are exactly the right person for us. We’ll even give you the opportunity to earn money doing it. Are you between 18-35 years of age, with a good knowledge of German and looking for a full-time job? ...’

14      On 19 November 2007, Ms Bulicke was informed by telephone that her application had not been successful. That rejection was confirmed by letter of 21 November 2007, which stated that all the posts had been filled. However, it transpired that two persons aged 20 and 22 were recruited on 19 November 2007.

15      DBS published similar advertisements on 22 November 2007 and on 9 April, 3 September and 10 September 2008. All those advertisements contained the terms ‘young team’ and ‘between 18-35 years of age’.

16      On 29 January 2008, Ms Bulicke brought an action before the Arbeitsgericht Hamburg (Hamburg Labour Court) seeking compensation for the damage she considered she had suffered by reason of alleged discrimination.

17      By judgment of 10 December 2008, that court dismissed her action on the ground that Ms Bulicke had not previously submitted her claim to DBS within the period laid down in Paragraph 15(4) of the AGG.

18      Ms Bulicke lodged an appeal with the Landesarbeitsgericht Hamburg (Regional Labour Court, Hamburg). In its view, it is clear that Ms Bulicke did not comply with the period laid down in Paragraph 15(4) of the AGG.

19      The national court asks whether Paragraph 15(4) of the AGG is compatible with the principles of equivalence and effectiveness since, first, in the absence of a binding collective agreement, no limitation periods apply in employment law in Germany other than general limitation periods, such as those laid down in Paragraph 195 of the BGB, and secondly, the time-limit is too brief to enable applicants to assert their rights.

20      It also notes that the period laid down in Paragraph 15(4) of the AGG is shorter than that laid down in Paragraph 611a of the BGB, in the version in force until 17 August 2006, in respect of discrimination on grounds of sex. The new legislation is therefore a backward step compared to the former legislation.

21      In those circumstances the Landesarbeitsgericht decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Does national legislation under which a time-limit of two months from receipt of a rejection of a job application – or by way of interpretation: from knowledge of the discrimination – applies (in the absence of provisions in a collective agreement) to the bringing in writing of a claim for damages and/or compensation based on discrimination in recruitment infringe primary law of the European Community (safeguarding effective legal protection) and/or the Community law prohibition of age discrimination, [the Directive], if three-year limitation periods apply to equivalent claims under national law, and/or the ‘prohibition of regression’ (reduction of protection) under Article 8 of [the Directive], if a previous national provision provided for a longer limitation period for discrimination on grounds of sex?’

 The question referred for a preliminary ruling

22      By its question, the national court asks, in essence, whether a provision such as Paragraph 15(4) of the AGG, which provides that a victim of discrimination in recruitment on grounds of age must make a claim against the perpetrator of that discrimination within two months of receipt of the rejection of the job application or, by way of another interpretation of that provision, within two months of acquiring knowledge of the discrimination, constitutes a correct implementation of Articles 8 and 9 of the Directive.

23      More precisely, it asks whether that provision is compatible with, on the one hand, the principles of equivalence and effectiveness, in particular having regard to other provisions of national legislation which set longer limitation periods for possibly comparable claims, or, on the other hand, the principle that prohibits a reduction in the level of protection, having regard to an earlier provision of national legislation which provided for a longer limitation period in cases of discrimination on grounds of sex.

 The principles of equivalence and effectiveness

24      Article 9 of the Directive states, firstly, that Member States are to ensure that judicial and/or administrative procedures for the enforcement of obligations under the Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them and, secondly, that those obligations of the Member States are without prejudice to national rules relating to time-limits for bringing actions as regards that principle. It follows from that wording that the question of time-limits for initiating a procedure for the enforcement of obligations under the Directive is not governed by European Union law.

25      In accordance with settled case-law, in the absence of European Union rules in the field it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from European Union law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, secondly, that they do not render practically impossible or excessively difficult the exercise of rights conferred by European Union law (principle of effectiveness) (see, in particular, Case C-432/05 Unibet [2007] ECR I-2271, paragraph 43; Joined Cases C-222/05 to C-225/05 van der Weerd and Others [2007] ECR I-4233, paragraph 28 and the case-law cited; and Case C-2/06 Kempter [2008] ECR I-411, paragraph 57).

26      The principle of equivalence requires that the national rule in question be applied without distinction, whether the infringement alleged is of European Union law or national law, where the purpose and cause of action are similar (Case C-326/96 Levez [1998] ECR I-7835, paragraph 41; Case C-78/98 Preston and Others [2000] ECR I-3201, paragraph 55; and Case C-63/08 Pontin [2009] ECR I-0000, paragraph 45).

27      However, that principle is not to be interpreted as requiring Member States to extend their most favourable rules to all actions, such as the case in the main proceedings, brought in the field of employment law (see, to that effect, Levez, paragraph 42, and Pontin, paragraph 45).

28      In order to establish whether the principle of equivalence has been complied with in the case in the main proceedings, it is for the national court, which alone has direct knowledge of the procedural rules governing actions in the field of employment law, to consider both the purpose and the essential characteristics of allegedly similar domestic actions (see Levez, paragraphs 43; Preston and Others, paragraph 49; and Pontin, paragraph 45).

29      Moreover, every case in which the question arises as to whether a national procedural provision is less favourable than those concerning similar domestic actions must be analysed by the national court by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies (Levez, paragraph 44; Preston and Others, paragraph 61; and Pontin, paragraph 46).

30      In the light of the information supplied by the national court, it appears that the possibility of obtaining compensation for pecuniary or non-pecuniary damage resulting from breach of the prohibition of discrimination on grounds of race, ethnic origin, religion or belief, disability, age or sexual identity was introduced by the AGG and that, strictly speaking, there were no equivalent procedures before the adoption of that Law.

31      In the view of that court, in the absence of a binding collective agreement, no limitation periods apply in employment law other than general limitation periods. However, it points out that, in its judgment of 10 December 2008, the Arbeitsgericht Hamburg pointed to the existence of other situations in which workers are required to assert their rights within short time-limits. That is the case with actions seeking protection against wrongful dismissal, which must be brought within three weeks of the dismissal. Similarly, actions to have a fixed-term employment contract declared invalid must be brought within three weeks of the contractual end of the fixed term. Finally, collective agreements frequently contain limitation period clauses under which entitlement to bring an action lapses if not exercised within a short period.

32      The national court states that Paragraph 611a of the BGB, in the version in force before the adoption of the AGG, provided for a minimum limitation period of two months in which to submit a claim to an employer in respect of discrimination on grounds of sex, in so far as a time-bar was laid down for other claims for compensation resulting from the employment relationship in question. If no such time-limit was laid down, the time-limit applicable in the context of Paragraph 611a was then six months.

33      It is apparent from the reference for a preliminary ruling that the time-limit in Paragraph 15(4) of the AGG relates only to the claim made to the employer. The German Government has stated that that period is to be combined with that laid down in Paragraph 61b of the ArbGG. It is only if employers reject employees’ claims submitted pursuant to Paragraph 15(4) of the AGG that persons who consider that they have been discriminated against have a period of three months, from the date of the written claim made to the employer, to bring proceedings before the labour court. The claim to the employer can be replaced by the bringing of legal proceedings provided that such proceedings are commenced within the period laid down in Paragraph 15(4) of the AGG.

34      It does not appear that a provision such as Paragraph 15(4) of the AGG, which provides that that a victim of discrimination in recruitment on grounds of age must make a claim against the perpetrator of that discrimination for compensation for pecuniary or non-pecuniary damage within two months, is less favourable than provisions concerning similar domestic actions in employment law. It is, however, for the national court to determine whether the procedural time-limits referred to by the Arbeitsgericht Hamburg in its judgment of 10 December 2008 are comparable time-limits. If it transpired that one or more of the actions referred to in the order for reference, or even other national remedies that have not been put before the Court, were similar to an action for compensation brought as a result of discrimination, it would also be for the referring court to consider whether such actions involved more favourable procedural rules (see, by analogy, Pontin, paragraph 56). Furthermore, it is for the national court to ascertain whether the interpretation of the time-limit laid down in Paragraph 15(4) of the AGG in conjunction with that referred to in Paragraph 61b of the ArbGG suggested by the German Government can be upheld.

35      As regards application of the principle of effectiveness, the Court has held that every case in which the question arises as to whether a national procedural provision makes the application of European Union law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies. For those purposes, account must be taken, where appropriate, of the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure (Case C-312/93 Peterbroeck [1995] ECR I-4599, paragraph 14; Unibet, paragraph 54; Case C-40/08 Asturcom Telecomunicaciones [2009] ECR I-0000, paragraph 39; and Pontin, paragraph 47).

36      It is settled case-law that the laying down of reasonable limitation periods for bringing proceedings satisfies, in principle, the requirement for effectiveness inasmuch as it constitutes an application of the fundamental principle of legal certainty (see Case C-261/95 Palmisani [1997] ECR I-4025, paragraph 28; Preston and Others, paragraph 33; Case C-255/00 Grundig Italiana [2002] ECR I-8003, paragraph 34; and Kempter, paragraph 58). Such time-limits are not liable to render practically impossible or excessively difficult the exercise of rights conferred by European Union law (see Grundig Italiana, paragraph 34; Kempter, paragraph 58; and Pontin, paragraph 48). With that reservation, the Member States remain at liberty to fix longer or shorter limitation periods (Case C-30/02 Recheio – Cash & Carry [2004] ECR I-6051, paragraph 20). As regards limitation periods, the Court has also held that, in respect of national legislation which comes within the scope of Community law, it is for the Member States to establish those periods in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration (see Pontin, paragraph 48).

37      It must therefore be ascertained whether the time-limit laid down in Paragraph 15(4) of the AGG meets the requirements of the principle of effectiveness, as regards both its length and its starting point.

38      Paragraph 15(4) of the AGG lays down a period of two months for submitting a claim to an employer. As the German Government has explained, it is important for an employer to be informed quickly of a claim and not to be required to retain documents relating to recruitment procedures for an excessive amount of time, having regard to the evidential requirements laid down by the AGG.

39      The fixing of that period at two months would not appear liable to render practically impossible or excessively difficult the exercise of rights conferred by European Union law.

40      With regard to the starting point, it follows from the wording of Paragraph 15(4) of the AGG that, ‘in the case of a job application, … the time-limit commences on receipt of the rejection’ of the job application. In such a situation, there is a risk that employees will have no way of determining whether they have been discriminated against, or, if so, to what extent, within a period of two months from rejection of their application, inter alia because of machinations on the part of the employer, which would make it impossible for them to bring the action provided for in the Directive (see, to that effect, Levez, paragraph 31).

41      However, it follows from both the order for reference and the observations of the German Government that the starting point for the time-limit laid down in Paragraph 15(4) of the AGG is, on a teleological interpretation of that provision, not necessarily receipt of the job application rejection but the point at which the worker has knowledge of the alleged discrimination. In those circumstances, that provision is not liable to render practically impossible or excessively difficult the exercise of rights conferred by European Union law.

42      In the light of those considerations, the answer to the first part of the question is that the primary law of the European Union and Article 9 of the Directive must be interpreted as not precluding a national procedural rule under which a victim of discrimination in recruitment on grounds of age must make a claim against the perpetrator of that discrimination within two months in order to obtain compensation for pecuniary or non-pecuniary damage, provided:

–        firstly, that that time-limit is not less favourable than that applicable to similar domestic actions in employment law,

–        secondly, that the fixing of the point from which that time-limit starts to run does not render practically impossible or excessively difficult the exercise of rights conferred by the Directive.

It is for the national court to ascertain whether those two conditions are met.

 The principle that prohibits a reduction in the level of protection

43      Article 8 of the Directive provides that the implementation of the Directive is under no circumstances to constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by the Directive.

44      With regard to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) and, in particular, clause 8(3) of that Framework Agreement, under which implementation of the agreement cannot provide the Member States with valid grounds for reducing the general level of protection for workers previously guaranteed in the domestic legal order in the sphere covered by that agreement, the Court has held that reduction of the protection which workers are guaranteed in the sphere of fixed-term employment contracts is not prohibited as such by the Framework Agreement but, in order for that reduction to be caught by the prohibition laid down by clause 8(3) of the agreement, it must, first, be connected to the ‘implementation’ of the Framework Agreement and, second, relate to the ‘general level of protection’ afforded to fixed-term workers (Joined Cases C-378/07 to C-380/07 Angelidaki and Others [2009] ECR I-3071, paragraph 126, and the case-law cited).

45      In any event, since Article 1 of the Directive does not refer to sex as a ground for discrimination, any reduction in the level of protection against discrimination based on that ground cannot be regarded as falling within the fields covered by the Directive.

46      Consequently, the length of a time-limit for claiming compensation for discrimination on grounds of sex such as that in Paragraph 611a of the BGB, in the version prior to the entry into force of the AGG, is not covered by the notion of ‘level of protection against discrimination’ in Article 8(2) of the Directive.

47      In the light of those considerations, the answer to the second part of the question is that Article 8 of the Directive must be interpreted as not precluding a national procedural rule, adopted in order to implement the Directive, which has the effect of amending earlier legislation which provided for a time-limit for claiming compensation for discrimination on grounds of sex.

 Costs

48      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

1.      The primary law of the European Union and Article 9 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding a national procedural rule under which a victim of discrimination in recruitment on grounds of age must make a claim against the perpetrator of that discrimination within two months in order to obtain compensation for pecuniary or non-pecuniary damage, provided:

–        firstly, that that time-limit is not less favourable than that applicable to similar domestic actions in employment law,

–        secondly, that the fixing of the point from which that time-limit starts to run does not render practically impossible or excessively difficult the exercise of rights conferred by the Directive.

It is for the national court to ascertain whether those two conditions are met.      

2.      Article 8 of the Directive must be interpreted as not precluding a national procedural rule, adopted in order to implement the Directive, which has the effect of amending earlier legislation which provided for a time-limit for claiming compensation for discrimination on grounds of sex.

[Signatures]

* Language of the case: German.