European Court of Justice Knocks down German Rules for Firing

Persons employed can be happy about the latest judgment of ECJ of January 19, 2010 (re C-555/07). This is at least true for persons under the age of 26.

Ms. Kücükdeveci started at her former employer when she was 18. After 10 years on the job, she got fired. Her employer calculated the notification period by considering only a three year employment. Her employer based his decision on §622 II 2 BGB. Were all her years of employment counted, she would have a four month notice.

This provision read:
"In calculating the duration of employment, time periods prior to completion of the twenty-fifth year of life of the employee were not (sic: to be) taken into account."

After the first court, ArbG Düsseldorf dismissed the case, she appealed to LAG Düsseldorf. This court listened to her argument that this regulation of §622 II 2 BGB might not conform with community law. Therefore, Landesarbeitsgericht Düsseldorf submitted a request for a precedence in this legal question if it is conform with European law only to count for the time of employment the years of age of 25 and higher.

The ECJ held that this German regulation violates community law because it unreasonably discriminates against "age". The European judges instructed German courts with current cases, if necessary, to let this provision remain unapplied. The court instructed that a discrimination based on age is only permissible when it aims to pursue a legitimate goal inside the scope of employment policies, labor market and professional experience. Furthermore, such regulation must be "reasonable and necessary". ECJ denied this in regards to the second sentence of §622 II BGB - as it has been until now.

They expressly denied the argument that employers ought to have a greater flexibility among their personnel. It can be expected that younger employees have a larger professional and personal mobility. The court also remarked that the national court must guarantee the full applicability of community law. Therefore, a national court my not apply this illegal legal rule either.