European Union Constitutionalism in Crisis by Scicluna Nicole

Author:Scicluna, Nicole
Language: eng
Format: epub
Publisher: Taylor & Francis (CAM)

The Honeywell decision: a more conciliatory approach by the GCC

The difference of opinion between the European Court of Justice and the German Constitutional Court has so far remained rhetorical. The GCC illustrated its reluctance to openly breach the EU’s judicially constructed edifice of legal supranationalism in the 2010 Honeywell case, which addressed the question of whether an overly activist jurisprudence of the ECJ could be regarded as an ultra vires act and, thus, liable to be declared void in Germany.20 While the answer remained, technically, ‘yes’, the Court made clear that it would only set aside an ECJ ruling or other act of an EU institution in very narrow circumstances.

Honeywell concerned the compatibility of German legislation permitting the employment of older workers on short-term contracts with EU law, particularly Council Directive 2000/78/EC, which prohibited age discrimination in the workplace. In its 2005 Mangold decision, the ECJ, ruling on a preliminary reference from the German Federal Labour Court, had found that the German legislation did conflict with EU law and, hence, should be held invalid. The Mangold ruling was controversial for two reasons. Firstly, the ECJ applied the Directive even though the time for national authorities to transpose it into national law had not yet elapsed. In doing so, the Court relied upon and extended its previous jurisprudence that circumscribed member states’ ability to pass legislation incompatible with progressive implementation of Directives not yet in force (Mahlmann 2010: 1407–8). Secondly, the ECJ went above and beyond the Directive to sustain its ruling, finding that the member states were also subject to a ‘general principle of European Union law’ that prohibited age-based discrimination in the workplace (Beyer-Katzenberger 2011: 518).

In the Honeywell proceedings that reached the GCC in 2010, the original plaintiff was also an older worker who challenged the legality of his fixed-term contract with an auto parts manufacturer. The Federal Labour Court relied on the ECJ’s Mangold ruling to uphold the worker’s complaint, whereupon the employer appealed to the GCC. The employer alleged, amongst other things, that Mangold involved so activist an interpretation of EU law as to create new law, thereby breaching the principle of conferral and constituting an ultra vires act. Therefore, the GCC was invited to hold the Mangold jurisprudence inapplicable in Germany in accordance with the ultra vires control it had claimed in the Maastricht and Lisbon decisions (Mahlmann 2010: 1408).

Although the GCC confirmed its competence-competence and right to review EU law in its verdict, it stated that it would exercise judicial restraint, only utilising these powers in coordination with the ECJ and in full mindfulness of the importance of the principle of uniform application of Union laws. In fact, quite a high threshold was set. The GCC held that the ECJ has ‘a right to tolerance of error’, and that it would not supplant Luxembourg’s findings with its own in cases in which a legal rule was open to different interpretations, so long as the ECJ had complied with accepted standards of legal reasoning.21

Moreover, even in

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