Susanne Bulicke v Deutsche Büro Service GmbH.

• Jurisdiction: European Union
• Celex Number: 62009CJ0246
• ECLI: ECLI:EU:C:2010:418
• Date: 08 July 2010
• Docket Number: C-246/09
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Case C-246/09

Susanne Bulicke

v

Deutsche Büro Service GmbH

(Reference for a preliminary ruling from the

Landesarbeitsgericht Hamburg)

(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)

Summary of the Judgment

1. Social policy – Equal treatment in employment and occupation – Directive 2000/78

(Council Directive 2000/78, Art. 9(1) and (3))

2. Social policy – Equal treatment in employment and occupation – Directive 2000/78

(Council Directive 2000/78, Art. 8(2))

1. The primary law of the European Union and Article 9 of Council Directive 2000/78 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 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.

In order to establish whether the principle of equivalence has been observed, 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. 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.

The laying down of reasonable limitation periods for bringing proceedings satisfies, in principle, the requirement of effectiveness inasmuch as it constitutes an application of the fundamental principle of legal certainty. Such time-limits are not liable to render practically impossible or excessively difficult the exercise of rights conferred by European Union law. Subject to that reservation, the Member States remain at liberty to fix longer or shorter limitation periods. 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 paras 28-29, 36, 42, operative part 1)

2. Article 8 of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation 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.

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.

(see paras 45, 47, operative part 2)

JUDGMENT OF THE COURT (Second Chamber)

8 July 2010 (*)

(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

v

Deutsche Büro Service GmbH,

THE COURT (Second Chamber),

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...