A.  Introduction

On 22 November 2005, the European Court of Justice (ECJ) delivered a judgement in a preliminary ruling procedure from the Arbeitsgericht München (Labour Court Munich), answering questions concerning the interpretation of Clauses 2, 5 and 8 of the Framework Agreement on fixed-term contracts, put into effect by Council Directive 1999/70/EC of 28 June 1999, and as regards the construction of Article 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. Essentially, the Arbeitsgericht wanted to know whether a statutory provision exempting employees of 52 years of age and older from limitations to the conclusion of fixed-term contracts was compatible with Community law.

The ECJ’s answers to these questions have garnered a lot of attention. This is, however, only partly due to the fact that the Court, once again, held that Community law should be interpreted as precluding a provision of German labour law. The ECJ’s decision in Mangold is particularly controversial because the period prescribed for the implementation of Directive 2000/78/EC into domestic law had expired neither when the fixed-term employment contract was concluded nor when the decision was handed down.  Indeed, it has not yet expired. Nevertheless the ECJ found that the national provision, conflicting with Article 6 of Directive 2000/78/EC and the general principle of non-discrimination in respect of age, must be set aside. The case raises not only questions as regards the compatibility of German labour law with the European principle of non-discrimination in respect of age but also fundamental (constitutional) matters of European law.

B.  The German Legal Context I.  The German Law of Fixed-term Contracts

Since 1 January 2001 fixed-term contracts have been regulated under sections 14-18 Gesetz über Teilzeitarbeit und befristete Arbeitsverträge (TzBfG - Act on Part-Time Work and Fixed-Term Contracts), implementing Directive 97/81/EC on Part-Time Work and Directive 1999/70/EC on Fixed-Term Contracts. Since a fixed-term contract ends...