Judicial Activism of the Court of Justice of the European Union
Since the ECJ handed down the 2005 Mangold v. Helm case, there have been several criticisms provided by different scholars of the decisions it made and what they believed had various consequences for the European Union law. Essentially, the decisions made by the court involved several queries, but the main one was applicability of European Union age‐based anti‐discrimination law in situations involving the fixed‐term employment contracts. The contracts were founded on the law that permitted the fixed‐term contract with no demands for the objective reasons that justified the limitations of the employment period past the age of 52. The law involves the political issue of involving individuals that are past the age of 52 in the labor force without denying them safe conditions for working. The case had complications because of the fact that the time of transposition of the relevant directive 2000/78/EC involving the prevention of discrimination based on the age factor had not expired due to the allowable extensions of that period by Germany.
The Court of Justice of the European Union acknowledged the pertinent standard to be different from the Community law and therefore, inapplicable in the Mangold v. Helm case. It implemented the directives in question regardless of the pending transposition time limit, conflicting with the requirements under European Union law that the Member States desist from implementing any trials likely to seriously concede the achievement of the outcome set by directives. Furthermore, the court supported the arguments with duties to report on the development made in the extensive transposition time. Since the only measure of the provision for permitting the fixed‐term contract without the objective reasons involved age, without additional considerations associated with the labor market’s structure. In addition, of personal situations of involved individuals, the Court established that even with the broad option, the individual norm was inappropriate and unnecessary to vocationally incorporating the unemployed aged laborers, which established the norm’s purpose. However, the arguments made by the court are not convincing. One could observe that the notion of the general principle restricting age discrimination seemed surprising. In addition, the decisions were taken as the sign of the persistent divide amid the European law’s rationale and the national German legal order’s legal principles.
The Court engaged in unjustified judicial activism since the fact that the transposition time of the Directive was still active at the relevant period and also the German measure had already expired when the time of transposition end is adequate to regard them contrary to the Treaty. What is identified as “advance effect” of the directive in the literature and in the GFCC’s Honeywell judgment, must not be identified as the new normative obstacle to the national legislators’ freedom expecting what could generally apply following the expiration of the transposition period. Instead, it is the simple communication of present responsibilities of Member States as with entry date into directive’s force, which they had agreed on. Particularly, in his deductions of the case, Advocate General Tizzano claimed that setting aside German law so as to make it acquiescent with the practical duties that arise from the Directives could lead to recognizing the “horizontal effect” and therefore, different from the previous case-law. As such, the doctrine was applicable to even greater forces in situations that the transposition time was still active.
Most of the criticism that were brought against the Mangold v. Helm decision, though in part “overstated or misplaced”, was justified. It appears that there was a lack of detailed reasoning. Noticeably the vagueness like concerning the legal footing of the decision – Article 6 (1) of Directive 2000/78 or the non-discrimination principle based on age – would have been averted. In the event that this Directive was to be recognized as the foundation, the question on ways of reconciling the horizontal effects with the Faccini-Dori jurisprudence could still be open. If, consequently, the base was the non-discrimination principles based on age, the methodological founding by the Court regarding the Union law’s general principle appears to be poor. A similar situation is applicable to the reasons provided for specifying the binding effects of the principles on the German legislators, since the discrimination based on age was not considered in the framework agreement called the trigger. However, the substitute line of argument founded on the legally binding impacts of the Directive even before the period of transposition had already expired, was not considered.
The hierarchy of effect is an indication that the rule of recognition by the court is uncertain and the constitutional lawyers must study the continuing flow of the contradictory case law. It appears that it is rather uncertain exactly what legal effects an unimplemented directive might have as ECJ established major inroads into the horizontal effect’s domain, building the extremely artificial hierarchy of effect. As such, the alternative solutions in the Mangold v. Helm case could be rejecting the arguments that “Hartz”-law desecrated the EU law applied in the provided case, meaning before the period of transposition Directive 2000/78 had already expired. Based on the arguments presented by General Tizzano, the ECJ would have desisted from ordering national court to put the provisions at stake.
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