1. Solutions Introductory case (1)
The Administrative Court (Verwaltungsgericht) of Würzburg rejected the recourse by judgement from 9 November 2004 (No W 4 K ) and admitted a leap-frog appeal (Sprungrevision) to the Federal Administrative Court (Bundesverwaltungsgericht).
The final revision was rejected by the Federal Administrative Court by judgement from 30 June 2005 (No BVerwG 7 C 26.04).
The plaintiff entered a complaint of unconstitutionality which was rejected by the Federal Constitutional Court (Bundesverfassungsgericht) by decision from 14 May 2007 (No 1 BvR 2036/05).

2. Solutions Introductory case (2)
Is a national court empowered or obliged to review a legal act of parliament in the light of national fundamental rights?
In Germany each court has to revise the constitutionality of legal acts of parliament concerned. But if it is convinced of unconstitutionality it must submit this question to the Constitutional Court. The Constitutional Court only has the right to quash a legal act of parliament (see Article 100 Basic Law). As an administrative court is not empowered to annulment of a legal act of parliament in Germany, the plaintiff wanted a reference for a preliminary ruling to the Federal Constitutional Court.

3. Solutions Introductory case (3)
If so, is a national court empowered to such a review even if the law is implementing an EC directive?
In this case the control in the light of national fundamental rights is limited. Pursuant to the jurisprudence of the German Constitutional Court (Solange-als-Rechtsprechung) it shall not exercise its jurisdiction as long as the European Court of Justice guarantees an equivalent protection of fundamental rights on European level. In its recent judgement from 30 June 2009(Treaty of Lisbon) the Constitutional Court referred to this jurisprudence. In the given case the legal rules, which are mere implementation of the directive 2003/87/EC are not revised in the light of national fundamental rights.

4. Solutions Introductory case (4)
If so, how broad is the control in the light of national fundamental rights in this case?
Pursuant Article 249(3) EC a directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
In the given case the review is limited to the legal rules, which are not determined by the directive.

5. Solutions Introductory case (5)
Is a national court empowered or obliged to review national legislation in the light of European law?
Yes it must because of the primacy of European law. See the following annex to the Treaty of Lisbon:
17. Declaration concerning primacy
The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.
The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):
Opinion of the Council Legal Service of 22 June 2007
“It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/641 [1]) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice."

6. Solutions Introductory case (6)
concerning Directive 2003/87/EC
Is a national court empowered or obliged to review a European legal act, like a directive?
Yes, it must.
Which rules are relevant?
The rules of primary EU law are relevant, in the given case fundamental rights on European level.
Art. 6 TEU
Art. 1 Protocol to the ECHR
Art. 17 FRC Right to property
Art. 15 FRC Right to choose an occupation and right to engage in work
Art. 52 FRC Scope of guaranteed rights
The right of freedom to pursue trade or professional activities is recognised by the European Court of Justice (ECJ): Judgment of 13 December Liselotte Hauer v Land Rheinland-Pfalz. - Reference for a preliminary ruling: Verwaltungsgericht Neustadt an der Weinstraße - Germany. - Prohibition on new planting of vines. - Case 44/79.
Annex to the Treaty of Lisbon, 1. Declaration concerning the FRC
The Charter of Fundamental Rights of the European Union, which has legally binding force, confirms the fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States.
The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties.

7. Solutions Introductory case (7)
Must a national court review the case in the light of EC law even if a violation of EC law is not invoked by the plaintiff?
The German law of judicial procedure in administrative matters is ruled by the ex officio investigation. In the given case the Federal Administrative Court criticized that the Verwaltungsgericht did not cite European fundamental rights.
Does the directive 2003/87/EC violate European fundamental rights?
For a reasoned opinion the gas emission allowance trading system must be assessed.
For general guidelines see the ECJ judgment of 13 December 1979, case 44/79.

8. Solutions Introductory case (8)
The power of the judge Is a national court empowered to quash a national legal act of parliament? - because of violation of national fundamental rights ? Under the German law The Constitutional Court obtains a monopole (see Article 100 Basic Law). - because of violation of EC law? In this case Article 100 Basic Law is not applicable. The court must decide itself, but of course a reference for a preliminary ruling by the European Court of Justice pursuant art. 234 TEC is possible. Is a national court empowered to quash a European legal act? No, see the Foto Frost doctrine. Judgment of the Court of 22 October Foto-Frost v Hauptzollamt Lübeck-Ost. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Lack of jurisdiction of national courts to declare acts of Community institutions invalid - Validity of a decision on the post-clearance recovery of import duties. - Case 314/85.

9. Solutions Case 2 – policeman (1)
1. Finally the Austrian Administrative Court did not have to decide the case on its merits. The decision was restricted to the competences of the different authorities involved in the lawsuit.

10. Solutions Case 3 – retirement (1)
The Austrian Administrative Court dismissed the appeal against the first decision. On the other hand, it quashed the second decision as illegal.
Regarding the first decision it argued that the directive 2000/78/EU was not immediately applicable at the time the administrative decision has been taken and for the period of time (January until June 2003) it concerns. The timeframe for implementation of the directive was open till December The Administrative Court was aware of its obligation to interprete national laws in a way that they are in conformity with directives, even though these directives are not (yet) immediately applicable. But the clear wording of Art. 96 para 4 Pensionsgesetz did not allow an interpretation in favour of the applicant.

11. Solutions Case 3 – retirement (2)
The Administrative Court then referred to the decision of ECJ from 22nd of November 2005, Mangold vs. Helm, C-144/04. In this case, ECJ has applied Community Law’s principle of non-discrimination by age even though the deadline for the implementation of the directive 2000/78/EU had not expired.
But ECJ did not establish that the national court was entitled to disapply national law because of its incompatibility with a directive that has not yet direct effect.
The reasons for ECJ’s decision that the German Court will have to leave the respective German law unapplied are to be found under paragraph 75 of the Mangold judgment, where it says:

12. Solutions Case 3 – retirement (3)
“75 The principle of non-discrimination on grounds of age must thus be regarded as a general principle of Community law. Where national rules fall within the scope of Community law, which is the case with Paragraph 14(3) of the TzBfG, as amended by the Law of 2002, as being a measure implementing Directive 1999/70 (see also, in this respect, paragraphs 51 and 64 above), and reference is made to the Court for a preliminary ruling, the Court must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with such a principle (Case C-442/00 Rodríguez Caballero [2002] ECR I-11915, paragraphs 30 to 32). “
The Austrian Administrative Court argued that the application of Community Law’s principle of non-discrimination on grounds of age requires that national rules fall within the scope of Community Law. In the Mangold-case this prerequisite had been fulfilled, because the challenged German national law aimed at the implementation of the Directive 1999/70, but not because it just dealt with working conditions as such or because the non-discrimination directive had already been published. This made the difference to the Austrian case, where no other Community Law rulings were of any relevance. Therefore the Austrian Administrative Court concluded that Community Law’s principle of non-discrimination was not applicable in the first case.

13. Solutions Case 3 – retirement (4)
In the second case, the timeframe for implementation of directive 2000/78/EU has already expired. Nevertheless, Art. 96 para 4 of the Pensionsgesetz was still in force ruling the amount of pensions granted to civil servants from January 2004 onwards. The Austrian Administrative Court found that this national law constitutes direct discrimination by age. Two civil servants with exactly the same career (concerning duration, position, salary) who retire at the same time (after 2002) obtain different pensions, namely civil servants, who are younger when they retire get higher pensions than those who are older when they retire. This is obviously not justified, because younger persons also can expect to live longer and therefore to enjoy themselves of their pensions for a longer period of time.

14. Solutions Case 3 – retirement (5)
Examining the question of discrimination on grounds of age requires a comparison between the legal situations of persons of different ages at the same moment. The fact that our applicant might also have been privileged when he was younger (than 61,5) does not prevent him to seek for anti-discrimination when he got older and is now discriminated compared with younger colleagues.
The Austrian Administrative Court also found that the challenged national law was not justified as necessary in order to respect legitimate expectations of other civil servants. First of all, the legislator would have been free not to interfere into the right of civil servants born in 1941 and 1942 to retire with 60. Nevertheless he abolished this right. Far as the financial consequences are concerned, legitimate expectations were only at stake for a part of these civil servants born in Nevertheless civil servants born in 1941 also benefit from the interim regulation, even though they were entitled to retire by declaration already in 2002.
Therefore the Court ruled that the challenged restriction for the application of Art. 96 para 4 (that the civil servant must not be older than 61,5 years when he retires) is contrary to the directive 2000/78/EU (Art. 2 para 1). The directive itself has direct effect since 3rd of December Consequently the above mentioned restriction is no longer applicable for figuring out the pensions for periods from 1st of January 2004 onwards.

15. Solutions Case 4 – Change of sex
The Verdict from the Swedish Administrative Court:
The court found the 14 September 2010 that the new Marriage act that permitted same-sex marriages and the law from 1972 were not “coherent”. The court found that it followed from the cases Parry v. UK and R. and F. v. UK that if same-sex marriages are permitted in a country it must be a breach of Article 8 to force persons with a new gender to divorce a partner of the same sex.
The court set aside the 1972 Act and returned the case to the National Board of Health and ordered the board to try if the other requirements for determination of a new sex in the act were fulfilled.