The ECJ has handed down its decision in Kücükdeveci v Swedex GmbH & Co, following a reference for a preliminary ruling in respect of a German national provision which provided that in calculating an employee's notice period, all years of service prior to the employee's 25th birthday are disregarded. The ECJ held:
- The German legislation contained a difference of treatment on grounds of age.
- It was a legitimate aim to afford employers greater flexibility in personnel management by alleviating the burden on them in respect of the dismissal of young workers, from whom it is reasonable to expect a greater degree of personal or occupational mobility.
- The legislation adopted was not an appropriate means of achieving that aim, as the extension of the notice period was delayed for all employees who joined the undertaking before the age of 25, even those with long service at the date of dismissal.
- The principle of non-discrimination on grounds of age as given expression by the Equal Treatment Directive 2000/78 must be interpreted as precluding such legislation.
- A national court faced with a national provision which it considers to be incompatible with the principle of non-discrimination on grounds of age must decline to apply that provision.