General Principles of Law in Europe – An Inquiry in Light of the Principle of Non-discrimination Allgemeine Rechtsgrundsätze in Europa – dargestellt am Beispiel des Gleichbehandlungsgrundsatzes -
Jahrgang 75 (2011) / Heft 4, S. 845-881 (37)
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This article addresses the application of the principles of equality and non-discrimination in European private law with a special emphasis on the recent ECJ cases of Mangold and Audiolux. The two cases are of particular interest because of their divergent results. In Mangold the ECJ inferred an unwritten principle of non-discrimination in employment relationships in respect of age from international treaties and the constitutional tradition common to the Member States. The decision has been thoroughly criticised for the Court's construction of cited sources. By contrast, in Audiolux the Court resisted recognising a principle of equality of shareholders although various European directives and recommendations mention such a principle. The two decisions illustrate the methodology of the ECJ regarding general principles of law. The article provides a critical analysis of this methodology. What sources may be used to derive general principles of European private law? How are general principles used in the legal reasoning of the ECJ? What is the position of general principles in the hierarchy of European legal sources? The article also addresses the specific role of the principle of equality in European contract law. For contract lawyers, the basic principle is freedom of contract whereas non-discrimination is an exception that has to be justified. The article supports this precedence of the principle of freedom of contract and specifies the circumstances under which a party to a contract should have the right to ask for equal treatment. Non-discrimination in contract law should be restricted to cases of market failure (e.g. in employment contracts or on the housing market), to cases where discrimination is based on prejudice (especially in the case of racial discrimination), and to cases where compelling policy arguments proscribe any discrimination (e.g. in the case of pregnant women on the labour market).