… at this time on the Union. Some comments on the judgment in Case C-227/04 P Lindorfer v. Council.
This post can be read as a teaser for the forthcoming Tuesday’s judgment of the ECJ in C-411/05 Palacios de la Villa. There the Court will have an opportunity to show how seriously (or not) it meant in C-144/04 Mangold that the prohibition of discrimination on the grounds of age is a general principle of Community law, enforceable before courts and possibly leading to setting aside conflicting legislation. You may remember Advocate General Mazák’s Opinion in Palacios, harshly critical about the Court and its Mangold judgment. Another Court’s Advocate General, late L. Geelhoed, expressed his difficulty with such a bold reading of general principles in the following way:
So broad an interpretation of Article 13 EC and of the rules adopted by the Community legislature on the implementation of that article results, as it were, in the creation of an Archimedean position, from which the prohibitions of discrimination defined in Article 13 EC can be used as a lever to correct, without the intervention of the authors of the Treaty or the Community legislature, the decisions made by of the Member States in the exercise of the powers which they – still – retain. (Opinion in C-13/05 Chacón Navas, para. 54).
The Lindorfer Case also reminds me of my recent contribution at the Utrecht conference (about which I hope to post some comments later). There I expressed some concerns about the way in which the Court treats arguments presented before it that (in my opinion) seriously undermines its legitimacy.
Before the Court of First Instance Ms. Lindorfer had challenged a decision of the Council calculating her years of pensionable service. One of the arguments presented by her was discrimination on the grounds of age, since the rules on calculation favoured older officials without any objective justification. The CFI dismissed her action, but Mr. Lindorfer appealed to the ECJ.
Originally the case had been dealt with by the First Senate (consisting of 5 judges). However, after the ECJ delivered its judgment in Mangold, this senate decided, in accordance with Articles 44(4) and 118 of the Rules of Procedure, to refer the case back to the Court in order that it might be reassigned to a formation composed of a greater number of judges. The case was taken over by the Grand Chamber, which on 26 April 2006 reopened the oral procedure, appointed a date for a hearing and asked Ms Lindorfer, the Council and the Commission to express their views i.a. on the following issues:
(a) the application of the general principle of equal treatment to a case such as the present, in particular the extent to which the situation of an official who joins the service of the Community institutions after a period of membership of a national pension scheme is comparable to that of an official who joined the service at an earlier age;
(b) the scope of the prohibition of sex discrimination when calculating actuarial values in the transfer to the Community pension scheme of rights acquired under a national pension scheme;
(c) the scope of the prohibition of age discrimination in the same context, in the light of the judgment in Mangold; and
(d) the extent to which the ‘principle of capitalisation’ may be capable of justifying a difference in treatment according to sex or age in the transfer of rights acquired under a national pension scheme to the Community pension scheme, which is characterised essentially by the principle of solidarity.
So, in Lindorfer v. Council the principle of non-discrimination on the grounds of age indeed stroke back on the Union and the ECJ in particular. This time, it was not for a national court to enforce the principle against the national legislator. Instead, the ECJ itself was put into a position to enforce its previous conclusions made in Mangold against the legislator of the Union.
As I mentioned above, I have already criticized the argumentative practice of the ECJ at various instances (see e.g. my article in EL Rev at pp. 481-483). However, in Lindorfer v. Council it seems to me that the ECJ has gone farthest so far in neglecting its justificatory obligations towards the parties and the European legal discourse in general. After two opinions of its Advocates General, who dealt with the issue in some length, after re-opening the oral stage of the procedure to discuss the relevance of the principle and its judgment in Mangold, there is no mention of it in the whole judgment (except when the ECJ recapitulates the CFI’s judgment under the appeal).
The Court opened its argumentation by the following:
(45) It should be recalled at the outset that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Court’s Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal […].
Without having access to the pleadings, we cannot actually say to what extent the appellant was clear in invoking the principle of non-discrimination on the grounds of age. It is true that AG Jacobs had some difficulties with the grounds of appeal (see paragraph 59 of his Opinion). On the other hand, both Opinions examined the principle without further objections and, after all, the main reason for re-opening the oral stage of the proceedings seemed to be exactly this principle.
It seems to me that in Lindorfer v. Council the Court had to face all the difficulties connected with adjudicating on the basis of general principles of law, “which are to be sought rather in the Platonic heaven of law than in the law books, [and whose] existence and […] substantive content are marked by uncertainty” (AG Mazák in in Palacios de la Villa, para. 86) especially when the court’s judgment would have replaced previous decisions made in a political process. It is interesting to note that when the case was pending before the Court, the Council changed the applicable rules and removed some of its discriminatory elements, especially those distinguishing between genders when calculating pensions. The distinctions made on the basis of age remained without change, however. The Court’s avoidance of the issue of the alleged discrimination on the ground of age may be read as its deference towards the Community legislator and the decision made in a political process. The way in which the Court did it, however, put its legitimacy in question. Let’s see on Tuesday what happens in Palacios de la Villa - whether the Court will show the same attitude towards national legislators….
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This post can be read as a teaser for the forthcoming Tuesday’s judgment of the ECJ in C-411/05 Palacios de la Villa. There the Court will have an opportunity to show how seriously (or not) it meant in C-144/04 Mangold that the prohibition of discrimination on the grounds of age is a general principle of Community law, enforceable before courts and possibly leading to setting aside conflicting legislation. You may remember Advocate General Mazák’s Opinion in Palacios, harshly critical about the Court and its Mangold judgment. Another Court’s Advocate General, late L. Geelhoed, expressed his difficulty with such a bold reading of general principles in the following way:
So broad an interpretation of Article 13 EC and of the rules adopted by the Community legislature on the implementation of that article results, as it were, in the creation of an Archimedean position, from which the prohibitions of discrimination defined in Article 13 EC can be used as a lever to correct, without the intervention of the authors of the Treaty or the Community legislature, the decisions made by of the Member States in the exercise of the powers which they – still – retain. (Opinion in C-13/05 Chacón Navas, para. 54).
The Lindorfer Case also reminds me of my recent contribution at the Utrecht conference (about which I hope to post some comments later). There I expressed some concerns about the way in which the Court treats arguments presented before it that (in my opinion) seriously undermines its legitimacy.
Before the Court of First Instance Ms. Lindorfer had challenged a decision of the Council calculating her years of pensionable service. One of the arguments presented by her was discrimination on the grounds of age, since the rules on calculation favoured older officials without any objective justification. The CFI dismissed her action, but Mr. Lindorfer appealed to the ECJ.
Originally the case had been dealt with by the First Senate (consisting of 5 judges). However, after the ECJ delivered its judgment in Mangold, this senate decided, in accordance with Articles 44(4) and 118 of the Rules of Procedure, to refer the case back to the Court in order that it might be reassigned to a formation composed of a greater number of judges. The case was taken over by the Grand Chamber, which on 26 April 2006 reopened the oral procedure, appointed a date for a hearing and asked Ms Lindorfer, the Council and the Commission to express their views i.a. on the following issues:
(a) the application of the general principle of equal treatment to a case such as the present, in particular the extent to which the situation of an official who joins the service of the Community institutions after a period of membership of a national pension scheme is comparable to that of an official who joined the service at an earlier age;
(b) the scope of the prohibition of sex discrimination when calculating actuarial values in the transfer to the Community pension scheme of rights acquired under a national pension scheme;
(c) the scope of the prohibition of age discrimination in the same context, in the light of the judgment in Mangold; and
(d) the extent to which the ‘principle of capitalisation’ may be capable of justifying a difference in treatment according to sex or age in the transfer of rights acquired under a national pension scheme to the Community pension scheme, which is characterised essentially by the principle of solidarity.
So, in Lindorfer v. Council the principle of non-discrimination on the grounds of age indeed stroke back on the Union and the ECJ in particular. This time, it was not for a national court to enforce the principle against the national legislator. Instead, the ECJ itself was put into a position to enforce its previous conclusions made in Mangold against the legislator of the Union.
As I mentioned above, I have already criticized the argumentative practice of the ECJ at various instances (see e.g. my article in EL Rev at pp. 481-483). However, in Lindorfer v. Council it seems to me that the ECJ has gone farthest so far in neglecting its justificatory obligations towards the parties and the European legal discourse in general. After two opinions of its Advocates General, who dealt with the issue in some length, after re-opening the oral stage of the procedure to discuss the relevance of the principle and its judgment in Mangold, there is no mention of it in the whole judgment (except when the ECJ recapitulates the CFI’s judgment under the appeal).
The Court opened its argumentation by the following:
(45) It should be recalled at the outset that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Court’s Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal […].
Without having access to the pleadings, we cannot actually say to what extent the appellant was clear in invoking the principle of non-discrimination on the grounds of age. It is true that AG Jacobs had some difficulties with the grounds of appeal (see paragraph 59 of his Opinion). On the other hand, both Opinions examined the principle without further objections and, after all, the main reason for re-opening the oral stage of the proceedings seemed to be exactly this principle.
It seems to me that in Lindorfer v. Council the Court had to face all the difficulties connected with adjudicating on the basis of general principles of law, “which are to be sought rather in the Platonic heaven of law than in the law books, [and whose] existence and […] substantive content are marked by uncertainty” (AG Mazák in in Palacios de la Villa, para. 86) especially when the court’s judgment would have replaced previous decisions made in a political process. It is interesting to note that when the case was pending before the Court, the Council changed the applicable rules and removed some of its discriminatory elements, especially those distinguishing between genders when calculating pensions. The distinctions made on the basis of age remained without change, however. The Court’s avoidance of the issue of the alleged discrimination on the ground of age may be read as its deference towards the Community legislator and the decision made in a political process. The way in which the Court did it, however, put its legitimacy in question. Let’s see on Tuesday what happens in Palacios de la Villa - whether the Court will show the same attitude towards national legislators….
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