[Thanks to Louise Jones of 1 Temple Gardens for providing this summary]
The ECJ has held, in Bartsch v Bosch
, that where there is no link with Community law, it is not mandatory for a Member State to apply the prohibition against age discrimination.
Mrs Bartsch, a German national, was 21 years younger than her husband, a former BSH employee. Under their pension policy, although spouses were normally entitled to pension payments, upon his death, she was not so entitled, as BSH had a guideline that they would not make payments if the widow/widower was more than 15 years younger than the former employee. Mr Bartsch died before Germany had implemented the EC Equal Treatment Framework Directive 2000/78, and BSH imposed their guideline against Mrs Bartsch.
Mrs Bartsch challenged this in the German labour courts unsuccessfully, but the Landesarbeitsgericht (Higher Labour Court) made a reference to the ECJ: was the prohibition under Community law of discrimination on the ground of age is mandatory where the allegedly discriminatory treatment contains no link with Community law? It was also significant that the guideline had been implemented by BSH before Germany had implemented Directive 2000/78; the time-limit for implementation had yet to expire.
The Court distinguished Mangold , where the national rules in question were a measure specifically implementing a directive, so the national measure had fallen within the scope of Community law. The difference in the index case was that the guidelines at issue do not correspond to measures transposing Community provisions.
The Court held that neither the Equal Treatment Framework Directive, nor Article 13 EC, enable a situation such as Mrs Bartsch’s to be brought within the scope of Community law. The kind of scheme in question was not covered by the legal framework of the Directive or Article 13.[Thanks also to Katherine Apps of Littleton Chambers for telling me about this case]