Palacios de la Villa: EC law means never having to say sorry

In its judgment today in case C-411/05 Palacios de la Villa , the ECJ has ruled that Directive 2000/78, which outlaws discrimination on grounds of age, does not prevent member states from legislating so as to permit compulsory retirement at 65 in certain circumstances – at least in the context of collective agreements between employers and unions. I think that’s a bit disappointing: it looks as though the ECJ will take agenerous approach to interpreting article 6.1 of the Directive, allowing member states to permit all manner of discrimination on the vague basis that this is justified in terms of “legitimate employment policy”. Oh, well.

The other interesting thing about the judgment is the way the court has deliberately, and deplorably in my view, skated or skirted round the problem caused by case C-144/04 Mangold, which had suggested age discrimination was prohibited as a general principle of EC law independently of Directive 200/78, so that a member state could unlawfully discriminate even before time for implementing the Directive had expired (at the end of 2006, in relation to age discrimination).

That was an astonishing proposition, and surely had to be wrong. Fortunately you can make sense of Mangold in another way: the court ruled in any event that what Germany had done was legislate after the Directive was in force, during the period allowed for implementation, ina way which undemrined the purpose of the legislation – it’s uncontroversial to argue that member states act unlawfully if they do that.

Advocate General Mazak, in his opinion, took on Mangold, and said it was wrong. He also concluded that the Directive didn’t apply (though admittedly not because the dismissal of Mr. Palacios de la Villa took place before implementation fo the Directive was due). But the court has sneaked out of facing up to Mangold. It has ignored the time problem, preferring simply to rule in the abstract that the Directive applies to the legislation in question; it lets the national court off the tricky hook of having to decide whether the Directive applies in the particular case, by ruling that the Directive permits the legislation.

Pretty pathetic, if you ask me.