Under German law (implementing the Fixed Term Workers Directive), fixed-term contracts are normally unlawful unless objectively justified, UNLESS the employee is aged over 52 - in which case, fixed-term contracts do not need to be objectively unjustified.
A 56-year old German employee argued this contravened the EU Equal Treatment Framework Directive, and in particular, the requirement that member states eliminate age discrimination in employment.
The German government (and the employer) argued that as the Framework Directive did not have to be implemented until December 2006 (when the 'over-52' exemption for fixed-term contracts was due to expire), the Directive could have no impact on the legality of the 'over-52' exemption for fixed term contracts.
The ECJ disagreed. It held:
- national legislation which allows employers to treat those over 52 less favourably than those under 52 (by permitting fixed-term contracts without objective justification) offends the principle of eliminating discrimination on grounds of age; and,
- it did not matter that the Equal Treatment Framework Directive was not due to be implemented until December 2006, as the 'over-52' exemption had been introduced in 2002, after the Equal Treatment Framework Directive had been agreed. It was therefore incumbent on the German government not to legislate, once there was a clear aim of eliminating age discrimination by 2006, in a way which encouraged age discrimination.
Mangold v Rudiger Helm