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Equality and Discrimination

Von Colson and Kamann-Establishing the Principle of Indirect Effect

You may never have heard of Von Colson and Kamann, but if you are an employee you are indebted to them.

Von Colson and Kamann were German social workers whose appeal established an important principle: that EU states were obliged to provide a legal remedy in order to give effect to the principle of equal treatment in accordance with the Equal Treatment Directive. This is the important principle of indirect effect.

Von Colson and Kamann had applied to work in men’s prisons in Germany but were rejected because they were women.

They brought a case to the German equivalent of the Labour Court and won. However, they were only awarded the cost of travelling for the interview-that is, out of pocket or petrol expenses. 

They argued they should have had a legal remedy such as compensation or an order appointing them to the position open to them.

They appealed this decision to the ECJ (European Court of Justice) and it held that member states could provide an effective legal remedy such as damages or an order for specific performance. they could do this by interpreting their own national laws in a way that gave effect to the EU directive.

ECJ-VON COLSON & KAMANN V LAND NORDHEIN-WESTFALEN

The ECJ held, inter alia, that Von Colson could not demand that the employer appoint her. The member states could fulfill their obligations to provide a remedy in several ways, including either specific performance or claiming damages. Either one would provide an effective remedy to comply with the obligation. This discretion prevented the obligation being directly effective.

“23. Although… full implementation of the directive does not require any specific form of sanction for unlawful discrimination, it does entail that that sanction be such as to guarantee real and effective judicial protection.

26. … national courts are required to interpret their national law in the light of the wording and the purpose of the Directive in order to achieve the result referred to in the third paragraph of Article 189.

28. … if a Member State chooses to penalize breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred in connection with the application. It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law.”

Indirect effect

The Van Colson and Kamann case saw the ECJ establishing the  principle of indirect effect-that is, the member states of the EU are obliged to interpret their existing national laws in a way which will give effect to EU directives. This is a development of the principle of effective judicial protection to citizens.

Van Colson and Kamann could, therefore, have been awarded significant compensaton as a remedy for the discrimination, and not just the travelling expenses which the German Labour Court awarded.

Read the full decision of the ECJ in Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen.