29.3.2008

Official Journal of the European Union

C 79/12

(Case C-555/07)

(2008/C 79/21)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Seda Kücükdeveci

Defendant: Swedex GmbH & Co. KG

Questions referred

(a) Is a national provision which provides for the periods of notice on termination which employers are required to observe to be increased incrementally with the length of service, but which disregards periods of the employee's employment before the age of 25, incompatible with the Community law prohibition against discrimination on the ground of age, and specifically with primary Community law or with Council Directive 2000/78/EC of 27 November 2000 (1)?

(b) Can the fact that employers are required to observe only a basic period of notice when terminating the employment of younger employees be justified on the grounds that employers are recognised as having a commercial interest in flexibility as regards staffing — an interest which would be adversely affected by longer periods of notice — and that younger employees are not recognised as having the protection available to older employees (in the form of longer notice periods) with respect to their employment status or arrangements, for example because, having regard to their age and/or their lesser social, family and private obligations they are assumed to have greater professional and personal flexibility and mobility?

If Question 1(a) is answered in the affirmative and Question 1(b) is answered in the negative: In legal proceedings between private individuals, must a national court disapply a statutory provision which is clearly incompatible with Community law, or is the legitimate expectation of persons subject to the law — that national laws which are in force will be applied — to be taken into account so that a national law is disapplied only after the Court of Justice has ruled on the provision at issue or on a substantially similar provision?

(1) OJ L 303, p. 16.