Following the decision of the European Court of Justice of November 22, 2005 [Mangold], the Seventh Senate decided to limit the employment contract in accordance with Section 14 Paragraph. 3 Sentence 1 and 4 TzBfG. According to these provisions, the fixed-term employment contract does not require an objective reason if the employee has reached the age of 52 when the fixed-term employment relationship begins. In its decision of November 22, 2005, the European Court of Justice found the incompatibility of Section 14 Para. 3 Sentence 4 TzBfG established with Community law. According to the opinion of the European Court of Justice, the regulation provided for in Section 14 Para. 3 Sentence 4 TzBfG for employers to set fixed-term contracts without any objective reason represents unequal treatment based directly on age. It is true that the objective pursued by the provision of promoting the professional integration of unemployed older workers should in principle be viewed as an objective and appropriate justification for unequal treatment based on age. However, the wide margin of discretion available to the Member States when choosing the measures to achieve their objectives in the field of labor and social policy is exceeded if the national regulation provides for the age of the employee concerned as the sole criterion for the limitation of the employment contract, unless this is proven that setting an age limit is necessary for the professional integration of unemployed older workers, regardless of the structure of the respective labor market and the personal situation of the person concerned. With its content the provision of § 14 para. 3 Sentence 4 TzBfG beyond what is appropriate and necessary to achieve the objective pursued. It cannot therefore be used under Article 6 para. 1 of Directive 2000/78/EC can be justified. The finding of unjustified unequal treatment is not precluded by the fact that the implementation period for the directive has not yet expired. Firstly, the Member States are unlikely to seriously question the achievement of the directive’s objective through their legislation during the transposition period of a directive. Secondly, the principle of equal treatment in employment and occupation is not only anchored in Directive 2000/78/EC. The prohibition of discrimination on grounds of age should be regarded as a general principle of Community law. It is therefore the responsibility of the national court before which a dispute concerning the prohibition of discrimination on grounds of age is pending to ensure, within the limits of its jurisdiction, the legal protection which the individual derives from Community law, by taking any possible measures to the contrary provision of national law inapplicable. Following this case law, the Seventh Senate decided in its judgment of April 26, 2006 ( 7 AZR 500/04 ) that the provision of Section 14 Para. 3 Sentence 4 TzBfG may not be applied by national courts. As a result, a time limit based on this regulation is ineffective. The national courts are bound by the European Court of Justice’s ruling of inapplicability. By Art. 234 para. 1 EC, the European Court of Justice has been given final decision-making power in relation to the courts of the Member States, among other things, on the interpretation of the Treaty establishing the European Community. The authorization to make a binding decision within the framework of a preliminary ruling procedure is based on the consent laws of the European Union in accordance with. Art. 23 Abs. 1 Sentence 2, Art. 59 Para. 2 Sentence 1 GG transferred competences. The European Court of Justice did not exceed these powers insofar as it found the inapplicability of Section 14 Para. 3 sentence 4 TzBfG was based on the ban on age discrimination resulting from general principles of Community law. The ban is within the scope of the European Court of Justice according to Article 23 paragraph. 1 Sentence 2 GG, when deriving the fundamental rights that are enshrined in Article 6 Paragraph. 2 EU as general principles of Community law should not be based on a minimum number of Member States, but rather on the protection of fundamental rights expressly guaranteed in one Member State or only in a small number of Member States. The Seventh Senate further decided that the reasoning of the European Court of Justice based on the prior effect of directives should be understood as meaning that a national law enacted during the implementation period of a directive is inapplicable if its content contradicts that provided for in Article 249 Section. 3 EC, the objective of the directive is binding and there is no possibility of interpreting it in accordance with Community law. With the possible extension of the possibility of legal protection, the Court of Justice has also not exceeded its jurisdiction. In its opinion, the European Court of Justice considered the validity of Section 14 Para. 3 Sentence 4 TzBfG, the existing conflict between the principles of the binding nature of the directive’s objective for the member states obliged to comply with the contract, on the one hand, and the lack of direct application of Directive 2000/78/EC among private individuals, on the other hand, is resolved in favor of the principle of compliance with the contract taking precedence. This principle and the directives derived from it are part of the primary law of the community. Since the Court found the inapplicability of Section 14 Para. 3 Sentence 4 TzBfG has stated with the necessary clarity, a new appeal to the European Court of Justice to clarify its decision is neither permissible nor necessary. If a national regulation violates the principle of equality under Community law, the national court is obliged to disapply a discriminatory national provision without having to request or wait for its prior repeal by the legislature. The Federal Constitutional Court has approved the European Court of Justice’s examination of fundamental rights based on the general principle of equality and the requirement of non-discrimination and has taken this as an opportunity to withdraw its authority to examine the application of secondary Community law. § 14 Abs. 3 Sentence 4 TzBfG is also not applicable to a fixed-term agreement made before November 22, 2005 for reasons of protection of legitimate expectations under Community law. The European Court of Justice alone has jurisdiction to limit the time limit on the inapplicability of a national standard that violates primary Community law. However, this did not limit the temporal effects of its declaration of inapplicability. In the event of a dispute, the Seventh Senate was able to leave open whether the national courts are authorized, following a ruling of inapplicability by the European Court of Justice, to limit the temporal effect of the ruling of inapplicability by granting protection of legitimate expectations under national constitutional law. The requirements for granting protection of legitimate expectations under national law are with regard to the age limit in accordance with Section 14 Para. 3 Sentence 4 TzBfG not present. The compatibility of the provision with Community law had already been questioned early on in labor law literature. The Third Senate had to assess a pension regulation that excludes survivors’ pensions if the surviving spouse is more than 15 years younger than the deceased former employee. By resolution of June 27, 2006 (3 AZR 352/05), the Third Senate decided that German law, in particular the principle of equal treatment under labor law, does not conflict with such a regulation. When it comes to company pension schemes, the employer can limit its performance risk for obvious risk considerations. This is still the case with an age gap clause of 15 years. However, due to the decision of the European Court of Justice of November 22, 2005 [Mangold], it is doubtful whether the legal situation should be assessed differently against the background of a principle of prohibition of age discrimination anchored in EC primary law. The Third Senate therefore suspended the proceedings in accordance with Article 234 EC and submitted several questions to the European Court of Justice. First, it should be clarified whether the ban on discrimination based on age in company pension law has national effects. This could be answered in the negative if, in principle, for the applicability of fundamental rights based on EC primary law, a reference to Community law is required for the question to be regulated. The Community law reference could arise from Article 13 EC, according to which the Community has the competence to combat discrimination based on, among other things, age, and from the Framework Directive. To the extent that a domestic effect can be affirmed, the further question arises as to whether this effect also develops between private employers on the one hand and their employees or company pensioners and their survivors on the other. If this is also answered in the affirmative, it must be clarified whether an age gap clause, as direct or indirect discrimination, falls within the scope of the prohibition of age discrimination and whether Community law conflicts with the national justification for limiting the benefit risk in the form of an age gap clause. In the event that discrimination is assumed to be unjustified, the Senate further asked whether this ban has unlimited retroactive effect or whether it should be applied for a limited period of time in the past.