Herzog-Gerken_StopTheECJ - Stop the European Court of...

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Stop the European Court of Justice Competences of Member States are being under- mined. The increasingly questionable judgements from Luxemburg suggest a need for a judicial watchdog. By Roman Herzog and Lüder Gerken Published in German on September 08, 2008 by F.A.Z ( Frankfurter Allgemeine Zeitung )
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Stop the European Court of Justice by Roman Herzog and Lüder Gerken CEP | Kaiser-Joseph-Str. 266 | 79098 Freiburg | Telephone +49 (0)761 38693-0 | [email protected] 2 Judicial decision-making in Europe is in deep trouble. The reason is to be found in the European Court of Justice (ECJ), whose justifi- cations for depriving Member States of their very own fundamental competences and in- terfering heavily in their legal systems are be- coming increasingly astonishing. In so doing, it has squandered away a large part of the trust it used to enjoy. Hence, it is only logical that the German Fed- eral Constitutional Court recently decided to intervene. Very soon it will have to render a judgement which will be of fundamental im- portance for the further development of European jurisdiction, since it concerns the question of whether the excessive legal prac- tice of the ECJ should in future once again be subject to stricter controls by the German Federal Constitutional Court, or whether the Federal Constitutional Court should resign once and for all from its watchdog position. What triggered this decisive case was a law- suit staged by two lawyers. In the course of the labour market reforms established under the red-green coalition (Social Democrats with the Alliance 90 and the Green Party), at the end of 2002 the age limit at which em- ployees are entitled to enter into temporary employment contracts without restrictions had been temporarily reduced from 58 to 52 years. The aim was to increase the chances for older unemployed people to find a job. The high level of protection against unwar- ranted dismissal in Germany combined with the concern of many employers that the per- formance of older people might weaken, meant that people over fifty often had no real opportunity for reintegration into the labour market. In 2000, the European Union (EU) passed a non-discrimination directive which prohib- ited the unequal treatment of people in “em- ployment and occupation” on account of age. Of course this EU directive also contains an explicit provision that Member States may discriminate against people due to age if such practice serves to foster employment. The manner in which this provision is realised is largely left to the Member States’ decision. However, two lawyers in Munich held the view that this reduction of the age limit con- stituted an infringement of the said EU direc- tive, and so they brought the case to court in 2003. The ECJ judged as follows: The German labour market reform was in fact deemed in- compatible with the EU’s non-discrimination directive, since it could not be “proved” that the German reform provisions were “objec- tively required” for the stimulation of the em-
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This note was uploaded on 02/05/2012 for the course 790 395 taught by Professor Tillery during the Fall '09 term at Rutgers.

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Herzog-Gerken_StopTheECJ - Stop the European Court of...

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