Opinion of the Advocate General — ECLI:EU:C:2013:68
Date: 2013-02-07
Language of the case: Danish
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary — Judgment of the Court (Second Chamber), 26 September 2013 1. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Scope — Availability pay intended for civil servants dismissed on grounds of redundancy — Immediate consideration in cash paid to civil servants in respect of their employment — Included (Art. 157(2) TFEU; Council Directive 2000/78, Recital 13 and Art. 3(1)(c) and (3)) 2. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — Exception — Occupational social security schemes fixing the ages for admission or entitlement to retirement or invalidity benefits — Scope — Availability pay intended for civil servants dismissed on grounds of redundancy — Not included (Council Directive 2000/78, Art. 6(2)) 3. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — National legislation excluding civil servants dismissed on grounds of redundancy, who are already eligible for a pension, from entitlement to availability pay — Justification based on the pursuit of legitimate objectives — Lawfulness — Proportionality — Not permissible (Council Directive 2000/78, Arts 2(1) and 6(1)) 1. The scope of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted, in the light of Article 3(1)(c) and Article 3(3) of that directive, read in conjunction with recital 13 in the preamble to the directive, as including pay within the meaning of Article 157(2) TFEU. Availability pay intended for civil servants dismissed on grounds of redundancy, which represents immediate consideration in cash, paid by the employer to the civil servants in respect of their employment, thus constitutes pay within the meaning of Article 157(2) TFEU and therefore falls within the scope of Directive 2000/78. (see paras 25, 27, 29, 30, 44) 2. Article 6(2) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as being applicable only to retirement or invalidity benefits under an occupational social security scheme. Since that provision allows Member States to provide for an exception to the principle of non-discrimination on grounds of age, it must be interpreted strictly. The wording of Article 6(2) and the purpose and general scheme of Directive 2000/78 support the conclusion that that provision is intended to apply only in the cases exhaustively listed. Since availability pay intended for civil servants dismissed on grounds of redundancy is neither a retirement benefit nor an invalidity benefit within the meaning of Article 6(2) of Directive 2000/78, that provision does not apply to such a benefit. (see paras 39-41, 43-45, operative part 1) 3. Articles 2 and 6(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding a national provision under which a civil servant who has reached the age at which he is able to receive a retirement pension is denied, solely for that reason, entitlement to availability pay intended for civil servants dismissed on grounds of redundancy. It is true that the aim of ensuring the availability of civil servants and their protection in the event of redundancy, while limiting entitlement to availability pay only to civil servants who require protection and who comply with their obligation to remain available, falls within the category of legitimate employment policy and labour market objectives provided for in Article 6(1) of Directive 2000/78. Moreover, to limit entitlement to availability pay solely to civil servants who are not entitled to a retirement pension does not seem to be either unreasonable in the light of the aim pursued by the legislature or manifestly inappropriate to achieve the legitimate objectives put forward. However, a national provision under which both civil servants who wish to retire and who will consequently receive a retirement pension and civil servants who wish to pursue their professional career within the public administration beyond the age of 65 are automatically excluded from receiving availability pay merely because they could, inter alia because of their age, draw such a pension, goes beyond what is necessary to ensure the objectives pursued. Such a measure may thus force civil servants who wish to remain in the labour market to accept a retirement pension which is lower than the pension to which they would be entitled if they were to remain in employment for more years. Furthermore, the legitimate objectives pursued by that legislation may be attained by less restrictive, but equally appropriate, measures. Thus, provisions which limit entitlement to availability pay solely to civil servants who have temporarily waived their right to receive a retirement pension in order to continue employment, while providing, in cases where civil servants refuse to take up another suitable post, for measures to punish any abuse, ensure that only civil servants who are actually available to take up an alternative post are entitled to receive availability pay. (see paras 51, 58, 66, 67, 69, 72, 74, operative part 2)