Sensitive or controversial issues

AuthorMatthias Mahlmann
11.1 Potential breaches of the directives at the national leve l
It is intended that the AGG and the accompanying legislation should provide a full
transposition of the directives. However, in the view of the author, there are some
shortcomings.467 Several problematic issues have been identified in this report:468
a) the exception of dismissal from the application of th e prohibition of discrimination,
Section 2(4), AGG, though mitigated by case law (see section 3.2 .3);
b) the pos sible non- application of the AGG to occupational pension schemes, Section
2(2), AGG, depending, however, on the judicial interpretation of the relevant norm
(see section 3.2.3);
c) the exception from th e material scope of the provision of goods and services of all
transactions concerning a special relationship of trust and proximity between the
parties or their family, including the letting of flats on the premises of the landlord
for all grounds including race and ethnic origin, Section 19(5), AGG, which raises
problems under the Racial Equality Dire ctive, albeit depending on its contentious
interpretation in this respect, (see sections 3.2.9 and 3.2.10);
d) the exception in relation to housing, including unequal t reatment on the grounds of
race and ethnic origin, to provide for socially and culturally balanced settlements,
Section 19(3), AGG, depending on judicial interpretation (see secti on 3.2.10);
e) the formulation of the justification of unequal treatment for religion and belief,
depending on judicial interpretation, Section 9(1), AGG, which has not been
abrogated despite CJEU jurisprudence in this respect (see section 4.2);
f) Section 622(2) (second sentence), BGB provides that employment periods under the
age of 25 are not taken into account when determining notice periods. This regulation
is as the CJEU has ruled469 not reconcilable with Article 6 of Directive 2000/78/EC
(see section 4.7.5.a) and is no longer applied by German courts ( see section 12.2);
g) there is no special prohibition of victimisation in civil law, as set out in Article 9, Racial
Equality Directive (2000/43/EC) (see section 6.4);
h) the dependen ce of compensation for material damage on fault (wilful o r negligent
wrongdoing) or gross negligence respectively, Sections 15(1), 15(3) and 21(2) AGG,
is contrary to CJEU jurisprudence in this respect but continues to be valid law (see
section 6.5);
467 Assuming that European law demands a differentiated transposition, see Court of Justice of the European
Union (CJEU), C-49/00, Commission v. Italy, 15 November 2001, EU:C:2001:611, para 21ff,; Court of Justice of
the European Union (CJEU), C- 236/95, Commission v. Hellenic Republic, 19 September 1996,
EU:C:1996:341, para 13,
content/EN/TXT/PDF/?uri=CELEX:61995CJ0236&from=EN; Court of Justice of the European Union (CJEU),
C-38/99, Commission v. French Republic, 7 December 2000, EU:C:2000:674, para 53,; Court of Justice of
the European Union (CJEU), C-144/99, Commission vs. Kingdom of the Netherlands, 10 May 2001,
EU:C:2001:257, para 17, ‘It should be
borne in mind, in that connection that according to settled case law, whilst legislative action on the part of
each Member State is not necessarily required in order to implement a directive, it is essential for national
law to guarantee that the national authorities will effectively apply the directive in full that the legal position
under national law should be sufficiently precise and clear and that individuals are made fully aware of their
rights and, where appropriate, may rely on them before national courts.’ With regard to case law the Court
continues, ‘...even where the settled case law of a Member State interprets the provisions of national law in
a manner deemed to satisfy the requirements of a directive that cannot achieve the clarity and precision
needed to meet the requirement of legal certainty’, Ibid, para 21.
468 For the following list in the main text it is assumed that Article 3 GG protects adequately against
discrimination on the ground of race and ethnic origin, religion, belief and disability explicitly or through the
open-textured guarantee of equality in Article 3(1), GG for the grounds of age and sexual orientation in
public law through a strict test of proportionality for the justification of any unequal treatment. This
interpretation is contentious in detail, but tenable in the light of the jurisprudence of the BVerfG.
469 Judgment of 19 January 2010, Kücükdeveci, C-555/07, EU:C:2010:21,

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