Opinion of the Advocate General — ECLI:EU:C:2010:227
Date: 2010-04-28
Language of the case: German
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Anti-discrimination
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Further reference on a question decided by the Court – Admissibility (Art. 267 TFEU) 2. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on grounds of age (Council Directive 2000/78, Art. 6(1)) 3. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on grounds of age (Council Directive 2000/78, Art. 6(1)) 4. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on grounds of age (Council Directive 2000/78, Arts 1 and 2) 1. Article 267 TFEU always allows a national court, if it considers it desirable, to refer questions of interpretation to the Court again. Moreover, in proceedings under Article 267 TFEU, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling. That is so where the referring court raises the question of the compatibility with Directive 2000/78 of national legislation providing for a clause on automatic termination of the employment contracts of employees who have reached the age of 65 on the ground that they have become eligible to retire. A reference for a preliminary ruling as to whether such a clause is discriminatory is therefore admissible. (see paras 31-32, 34-35) 2. Article 6(1) of Council Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that it does not preclude a national provision under which clauses on automatic termination of employment contracts on the ground that the employee has reached the age of retirement are considered to be valid, in so far as, first, that provision is objectively and reasonably justified by a legitimate aim relating to employment policy and the labour market and, second, the means of achieving that aim are appropriate and necessary. The implementation of that authorisation by means of a collective agreement is not, as such, exempt from any review by the courts but, in accordance with the requirements of Article 6(1) of that directive, must itself pursue such a legitimate aim in an appropriate and necessary manner. First, given the broad discretion which the Member States enjoy in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it, such clauses are objectively and reasonably justified since the termination of the employment contracts of employees who have reached retirement age directly benefits young workers by making it easier for them to find work, which is otherwise difficult at a time of chronic unemployment and the rights of older workers are, moreover, adequately protected. That mechanism which is based on the balance to be struck between political, economic, social, demographic and/or budgetary considerations and the choice to be made between prolonging people’s working lives or, conversely, providing for their early retirement. Second, that mechanism, which is distinct from dismissal and resignation, has its basis in an agreement. That allows not only employees and employers, by means of individual agreements, but also the social partners, by means of collective agreements, – and therefore with considerable flexibility – to opt for application of that mechanism so that due account may be taken not only of the overall situation in the labour market concerned, but also of the specific features of the jobs in question. In the light of those considerations, it does not appear unreasonable for the authorities of a Member State to take the view that a measure such as the authorisation of clauses on automatic termination of employment contracts on the ground that an employee has reached the age at which he is eligible for a retirement pension may be appropriate and necessary in order to achieve legitimate aims in the context of national employment policy. (see paras 41, 43-44, 49, 51, 53, operative part 1) 3. Article 6(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that it does not preclude a measure such as the automatic termination of employment contracts of employees who have reached retirement age, set at 65, provided for by a framework collective agreement for employees in the commercial cleaning sector. First, by guaranteeing workers a certain stability of employment and, in the long term, the promise of foreseeable retirement, while offering employers a certain flexibility in the management of their staff, the clause on automatic termination of employment contracts is the reflection of a balance between diverging but legitimate interests, against a complex background of employment relationships closely linked to political choices in the area of retirement and employment. Second, given that the employment law of the Member State concerned does not prevent a person who has reached the age at which he is eligible for payment of a pension from continuing to work and that a worker in that position continues to enjoy protection from discrimination on grounds of age, the termination by operation of law of an employment contract does not have the automatic effect of forcing the persons concerned to withdraw definitively from the labour market. That law does not, therefore, establish a mandatory scheme of automatic retirement. It does not prevent a worker who wishes to do so, for example, for financial reasons, from continuing to work beyond retirement age and does not deprive employees who have reached retirement age of protection from discrimination on grounds of age where they wish to continue to work and seek a new job. In the light of those arguments, the national legislation does not go beyond what is necessary to achieve the aims pursued, given the wide discretion granted to the Member States and the social partners in the area of social policy and employment. (see paras 68, 74-77, operative part 2) 4. Articles 1 and 2 of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that they do not preclude a Member State from declaring a collective agreement containing a clause on the automatic termination of employment contracts for employees in the commercial cleaning sector to be of general application, provided that it does not deprive employees falling within the scope of that collective agreement of the protection from discrimination on grounds of age conferred on them by those provisions. Directive 2000/78 does not, as such, govern the conditions under which the Member States may declare a collective agreement to be of general application, even if the Member States are required to ensure, by means of appropriate laws, regulations or administrative provisions, that all workers are able to enjoy fully the protection granted to them by Directive 2000/78 against discrimination on the grounds of age. (see paras 79-80, operative part 3)