Brussels, 23/09/2008 (Agence Europe) - Fundamental rights, which are not yet written into Community law, can only be directly invoked in a case between private entities if they form part of legislation duly incorporated into national law. That is the principle that underpins the judgment delivered by the Court on 23 September in case C-427/06. German national Birgit Bartsch cannot, therefore, use her fundamental rights - in this instance, against discrimination based on her age - to claim the private pension of her late husband.
Bartsch, as the surviving spouse, had claimed her share of the private pension of her husband, who died in May 2004. This request was turned down by her late husband's former employers on the grounds of the age difference between the couple. Company pensions regulations specifically excluded widows of former employees from claiming their late husband's pensions when they were 15 or more years younger than their deceased spouses.
Bartsch took the matter to the Bundesarbeitsgericht (German federal Labour Court), which asked the European Court whether, as Bartsch claimed, a citizen's fundamental right not to suffer discrimination based on age could be invoked in this instance. The Court said no: fundamental rights do not apply in national law until they form part of Community law, transposed into national law, unlike fundamental freedoms which are part of the EC Treaty. The Court said that, when Mr Batsch died, Council directive 2000/78 on equal treatment at work had not yet been transposed since Germany had negotiated a three year extension before doing so. Since the directive had not been transposed, Bartsch could not use the fundamental right in question against her late husband's former employer. The Bosch und Siemens Hausgeräte (BSH) rules could, indeed, in 2004, prevent Bartsch, as the surviving spouse, from receiving her share of her late husband's private pension because she was 21 years younger than he.
The additional time accorded to Germany for the transposition of directive 2000/78 has now expired and national law now bans discrimination based on age under paragraph 19 of the Allgemeines Gleichbehandlungsgesetz (AGG) (general law on equality of treatment), introduced in August 2006.
Fundamental rights form part of the European Union's Charter of Fundamental Rights. At the present moment, this is not a legal text, but has the status of a “formal declaration” approved by the Council, Commission and Parliament. A version of the charter was included in the draft European Constitution, which was abandoned after the referendums in France and the Netherlands. The Lisbon Treaty, which has not yet been ratified by all member states, makes reference to the charter and, with its coming into force, would make the charter a legally binding text. It would then be directly applicable in all member states, with the exceptions of Poland and the United Kingdom, which have obtained opt-outs. (C.D./transl.rt)