Opinion of the Advocate General — ECLI:EU:C:2022:29
Date: 2022-01-13
Language of the case: Danish
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary C-587/20 – 1 
Case C-587/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
9 November 2020 
Referring court:  
Østre Landsret (Denmark) 
Date of the decision to refer:  
6 November 2020 
Applicant: 
Ligebehandlingsnævnet as representative of A 
Defendants:  
HK/Danmark 
HK/Privat 
Intervener:  
Fagbevægelsens Hovedorganisation (FH) 
  
Subject matter of the action in the main proceedings 
Issue of discrimination in so far as A was prevented from standing for election as 
sector convenor in the trade union HK/Privat on the ground of age. Claim for 
payment of compensation 
Subject matter and legal basis of the reference 
Interpretation of Article 3(1)(a) of Council Directive 2000/78/EC of 27 November 
2000 establishing a general framework for equal treatment in employment and 
occupation (Employment Directive) as the question has arisen during the 
proceedings as to whether A, as a politically elected sector convenor in a trade 
union, is covered by the Employment Directive. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-587/20 
 
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Article 267 TFEU 
Question referred for a preliminary ruling 
Must Article 3(1)(a) of the Employment Directive be interpreted as meaning that a 
politically elected sector convenor of a trade union is covered by the scope of the 
directive in the circumstances described [in the request for a preliminary ruling]? 
Provisions of EU law relied on 
Article 45 TFEU. 
Council Directive 2000/78/EC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation (Employment 
Directive); Article 3(1)(a). 
Judgments of the Court of Justice: 
C-144/04, Mangold, EU:C:2005:709, paragraphs 74, 75, 77 and 78; 
C-341/08, Petersen, EU:C:2010:4 paragraphs 32 and 33; 
C-482/16, Stollwitzer, EU:C:2018:180, paragraph 20; 
C-229/14, Balkaya, EU:C:2015:455, paragraphs 39 to 41; 
C-232/09, Danosa, EU:C:2010:674, paragraphs 51 and 56; 
C-420/18, IO, EU:C:2019:490, paragraphs 32 to 36; 
C-603/17, Bosworth, EU:C:2019:310, paragraphs 23, 25, 26 and 34. 
Provisions of national law relied on 
Lov om forbud mod forskelsbehandling på arbejdsmarkedet etc (Law on the 
prohibition of discrimination in the labour market; ‘Law on non-discrimination in 
the labour market’). Denmark transposed Directive 2000/78/EC by lov nr. 253 af 
7. april 2004 (Law No 253 of 7 April 2004) and lov nr. 1417 af 22. december 
2004 om ændring af lov om forskelsbehandling på arbejdsmarkedet (Law 
No 1417 of 22 December 2004 amending the Law on the prohibition of 
discrimination in the labour market), Paragraphs 1 to 3: 
Paragraph 1 lays down the general prohibition on all direct or indirect 
discrimination on the ground of, inter alia, age. 
HK/DANMARK AND HK/PRIVAT 
 
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‘Paragraph 2 An employer may not discriminate against workers or applicants 
for available posts in hiring, dismissal, transfers, promotions or with respect to 
remuneration and working conditions. 
Paragraph 3 
… 
Subparagraph 3. The prohibition of discrimination shall also apply to any 
person who introduces provisions and takes decisions concerning access to 
independent professions. 
Subparagraph 4. The prohibition of discrimination shall also apply to any 
person who takes decisions on membership of or participation in a workers’ 
or employers’ organisation and the benefits which such organisations confer 
on their members.’ 
The specific notes on draft law No L 181 set out on 17 January 1996 (see 
Folketingstidende 1995-1996, Annex A, page 3543; on Paragraph 2) 
The specific notes relating to Paragraph 2 state, inter alia, that the provision is 
broad in terms of its content, in that it covers all working conditions, both those 
laid down by contract and those laid down by the employer unilaterally. 
The general notes on draft law No L 40 set out on 22 October 2003 (see 
Folketingstidende 2003-2004, Annex A, page 1213 et seq.; paragraphs 2 and 3). 
The general comments state that the draft law is intended to transpose parts of the 
Employment Directive. It also states that the scope ratione materiae of the 
Employment Directive and that of the Law on non-discrimination in the labour 
market are intended to overlap, with one addition (membership of and 
participation in a workers’ or employers’ organisation) in the latter law. In other 
respects, the draft law is based on the provisions of the directive and does not go 
beyond the requirements thereof. 
The general notes on draft law No L 92 set out on 11 November 2004 (see 
Folketingstidende 2004-2005, 1st session, Annex A, page 2697 et seq.; 
paragraphs 1, 2.1, 2.1.2. and 4.2). 
The draft law introduced the discrimination criterion of ‘age’ in the Law on non-
discrimination in the labour market so as to extend the scope of the law to include 
a prohibition of discrimination on the ground of age in the labour market. 
Ministry of Employment Guidance No 9237 of 6 January 2006 on the Law on 
non-discrimination in the labour market 2005. 
According to this guidance, Paragraph 2 of the law states, inter alia, that an 
employer may not discriminate against workers or applicants. There is no fixed 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-587/20 
 
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definition of worker. The Law on non-discrimination provides protection broadly, 
from the ordinary workers to the managing director. Case-law has also held that a 
lower secondary school pupil doing work experience falls within the scope of the 
law. 
Ministry of Employment Guidance No 9118 of 4 February 2019 on the Law on 
non-discrimination in the labour market; paragraph 3.2.1. 
The guidance reiterates that there is no fixed definition of what is meant 
specifically by a ‘worker’ and therefore a specific overall assessment must be 
carried out on a case-by-case basis, whereby account may be taken of, inter alia, 
whether the work is performed in person, whether the person concerned is subject 
to supervision and instruction, the work is performed at the employer’s expense 
and risk, the work is performed on the employer’s behalf and from more than one 
place of work, and whether the employer withholds taxes collectable at source. 
There is no exhaustive list of factors which may be included in the assessment. 
HK’s federal and sectoral statutes; Paragraph 9 of HK’s sectoral statutes of 
2009 stipulates that only members who are under the age of 60 on the date of the 
election may be elected as sector convenor. 
The federal and sectoral statutes are not legislation adopted by the Danish 
Parliament, but provisions adopted by the congress of HK. 
Danish case-law 
There is no decision of the Danish legal system as to whether a politically elected 
sector convenor of a trade union is included among the persons protected by the 
Law on non-discrimination in the labour market. 
However, there are decisions on the legal status of the politically elected 
conveners of trade unions in other areas of law, including in relation to the Law on 
holidays and the Law on proof of appointment, in which the conveners concerned 
were not considered to be employed since they were not subject to an employer’s 
instructions but, on the contrary, held an honorary office under the authority of a 
trade union’s general meeting and were therefore not covered by the scope of the 
laws concerned. 
Succinct presentation of the facts and the procedure in the main proceedings 
1 A, who was born in 1948, was hired as a professional employee in a local branch 
of HK in 1978. In 1992 she was elected as deputy convenor of the HK/Service 
sector (subsequently HK/Privat) and in 1993 was elected as convenor of the sector 
concerned. A was re-elected every four years unopposed and contested the post of 
sector convenor until 8 November 2011 when the age limit on eligibility laid 
down in Paragraph 9 of HK’s sectoral statutes prevented her from standing for re-
election that year since she had reached the age of 63. 
HK/DANMARK AND HK/PRIVAT 
 
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2 HK is a large trade union with around 230 000 members and the organisation of 
the trade union is laid down in HK’s statutes, which are provisions adopted by 
HK’s congress. HK primarily organises salaried employees in shops and offices in 
private undertakings and in central administrations, regions and municipalities. 
There are statutes for HK/Danmark (the federal statutes) and statutes for the trade 
union sectors under HK/Danmark (the sectoral statutes). 
3 HK/Privat, which has around 100 000 members, is one of four independent sectors 
under HK/Danmark. The sectors are represented by the sector convenor of 
HK/Danmark’s highest management bodies, including the management board, the 
executive committee and Senior Management. The sector convenor also manages 
the sector’s activity in accordance with the decisions taken by the congress, the 
management board and the sector congress, and the sector board has the power to 
deal with all ongoing professional matters within the areas of the sector, having 
regard to the professional and political principles laid down by the management 
board. 
4 According to the information provided, A did not have any outside occupation and 
was therefore employed full-time as elected sector convenor of HK from 1993 to 
2011. An example of A’s payslip from November 2011 shows that, inter alia, 
multimedia tax, labour market pension contribution, pension contributions and 
insurance, etc. are paid from her fixed monthly salary of DKK 69 548.93. Her 
‘contract for elected persons’ lays down the terms governing salary and fees, 
working time, holiday, maternity leave, work tools etc., insurance and 
professional secrecy, and so on. 
5 It is common ground that Paragraph 9 of HK’s sectoral statutes entail direct 
discrimination against A on the ground of age if A is covered by the scope of the 
Employment Directive. 
6 On 12 August 2014, A lodged a complaint with the Ligebehandlingsnævnet 
(Equal Treatment Board) because she was unable to stand for re-election as sector 
convenor on account of the age limit laid down in the sectoral statutes. On 22 June 
2016, the Ligebehandlingsnævnet took a decision in the case and ruled that it was 
contrary to the Law on non-discrimination in the labour market for A to be unable 
to stand for re-election to the post of sector convenor at the congress in 2011. The 
Ligebehandlingsnævnet held that the post of sectoral convenor is in fact an 
occupation within the meaning of the Employment Directive and thus is covered 
by the Law on non-discrimination in the labour market, which implements the 
directive, and must be interpreted in accordance with the directive and in such a 
way that achievement of the objective of the provisions is ensured, regardless of 
whether the post of sector convenor entails elements characteristic of both 
workers and self-employed persons. 
7 HK/Danmark and HK/Privat failed to comply with the decision of the 
Ligebehandlingsnævnet and, on 7 June 2018, the Ligebehandlingsnævnet, acting 
as the representative of A, brought an action against HK/Danmark and HK/Privat 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-587/20 
 
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before Københavns Byret (Copenhagen District Court) which, by order of 
19 September 2019, referred the case to the Østre Landsret (High Court of Eastern 
Denmark) on account of the importance of the principle involved. 
8 As the representative of A, the Ligebehandlingsnævnet claimed that HK/Danmark 
and HK/Privat should pay A compensation of DKK 1 080 000 or, in the 
alternative, a lesser amount. HK/Danmark and HK/Privat contended that the 
action should be dismissed or, alternatively, that a lesser amount should be paid. 
The Fagbevægelsens Hovedorganisation (FH) (Danish Trade Union 
Confederation) intervened in support of HK/Danmark and HK/Privat’s contention 
that the action should be dismissed. 
9 The Østre Landsret finds that there is such uncertainty as to whether A, as a 
politically elected sector convenor in HK and in the specific circumstances, is 
covered by the Employment Directive, that a reference should be made for a 
preliminary ruling. 
Principal arguments of the parties in the main proceedings 
10 The Ligebehandlingsnævnet, as the representative of A, claimed, inter alia, 
that the Law on non-discrimination in the labour market (see the Employment 
Directive) applies, that Paragraph 9 of the sectoral statutes entails a restriction on 
‘access to an occupation’ (see Article 3(a) of the Employment Directive), and that 
the prohibition of non-discrimination on the grounds of age laid down in the 
Employment Directive is not limited to workers alone. It is therefore not decisive 
that the position of sector convenor entails elements which are characteristic of 
both traditional workers and self-employed persons. The Employment Directive 
has a broad objective and is not limited in the same way as, for example, the Proof 
of Appointment Directive (Directive [91/533/EC]) or the Working Time Directive 
(Directive 2003/88/EC), which, under Articles 1 and 3 to 7 thereof, are limited to 
conferring rights on ‘employees’. 
11 First, the prohibition of discrimination on the ground of age undoubtedly applies 
to the use of age limits on appointment. Second, the principle certainly also 
applies to age limits on the right to pursue self-employment where there is no 
relationship of instruction. Third, the prohibition undoubtedly applies to 
membership of and participation in an employees’ or employers’ organisation and 
the benefits which such organisation confers on its members (see Article 3(1)(d) 
of the directive and Paragraphs 3(4) of the law). 
12 Nowhere in the provisions of the directive or the preamble thereto is it stated that 
the scope of the directive is limited to ‘workers’ or ‘employees’, understood as 
meaning persons who perform work for others or in accordance with their 
instructions. The Employment Directive is not a workers’ protection directive 
intended to safeguard the employee as the weaker party to an employment 
relationship. The purpose of the Employment Directive is to remove, for reasons 
relating to social or public interest, all obstacles to access to self-support and the 
HK/DANMARK AND HK/PRIVAT 
 
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capacity to contribute to society through gainful employment, either as a worker 
or a self-employed person. 
13 It follows from the inclusion of, inter alia, ‘self-employment’ and the distinction 
between ‘employment’ and ‘occupation’ in Article 3 of the directive that the 
directive precisely covers more than merely ‘employees’ in the traditional sense. 
That is further supported by the English language version of Article 3 of the 
Employment Directive, which distinguishes similarly between ‘employment’ and 
‘occupation’, and the French language version, which distinguishes between 
‘emploi’ and ‘travail’. 
14 Overall, there is no justification for a strict interpretation of the scope of the 
prohibition which would mean that it does not apply, simply because the position 
of sector convenor entails elements which are characteristic of both a worker and 
a self-employed person. It would be contrary to the fundamental objective of the 
Employment Directive if A could ‘fall between two stools’ by virtue of the formal 
circumstances of her employment. 
15 It is irrelevant that the position of sector convenor is obtained by election. There is 
no substantive reason for treating the condition relating to the restriction of the 
right to stand for election differently from general conditions of employment in an 
undertaking or self-employment as regards discrimination on the ground of age. 
16 Finally, it is claimed that, as sector convenor, A performs work which, to a large 
extent, is a worker’s job by nature and, in any event, an occupation. Even if HK’s 
premiss that protection under the Law on non-discrimination in the labour market 
depends on the existence of an ‘employment relationship’ were to be accepted, it 
is argued that that condition is specifically satisfied or, in the alternative, that an 
‘occupation’ was involved. By way of comparison, reference can be made to the 
case-law of the Court of Justice of the European Union (‘Court of Justice’) in 
related areas. For example, the Court of Justice has held that a member of a board 
of directors of a capital company who, in return for remuneration, provides 
services to the company which has appointed him and of which he is an integral 
part, who carries out his activities under the direction or supervision of another 
body of that company and who can, at any time, be removed from his duties 
without such removal being subject to any restriction is treated as a ‘worker’ 
covered by Directive 98/59/EC relating to collective redundancies (see judgment 
in Balkaya, paragraph [39]). In the view of the Court of Justice, the decisive factor 
is not that the board member enjoys a considerable degree of latitude in the 
performance of his duties that exceeds considerably that of a worker within the 
meaning of German law or that the director in question is elected by the general 
meeting of shareholders (see abovementioned judgment, paragraphs 40 to 41). 
The decisive factor is that the director in question is subject to the supervision of 
the general meeting of shareholders of the company and can be removed from it. 
The same is true of A. 
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17 HK/Danmark and HK/Privat contend, inter alia, that the concept of worker 
would have to be distorted beyond recognition to cover A, who is politically 
elected. She was not in a relationship of subordination to any manager; she was 
formally and substantively subject only to her own views under the authority of 
the congress; she could not be removed – not even by the sector board – but only 
dismissed by the election of a new convenor at a congress every four years or at 
an extraordinary congress; no ‘organisation’ had authority over the union 
representative. The central elements of the duties and rights associated with the 
definition of worker are therefore not present. The use of a ‘contract for elected 
persons’ which contains the same information as an employment contract can 
have no bearing on the outcome of the case. 
18 The core of an employment relationship in EU law is that there is work in a 
relationship of subordination in return for remuneration. In accordance with 
settled case-law, that concept of ‘worker’ within the meaning of Article 45 TFEU 
must be defined in accordance with objective criteria which distinguish the 
employment relationship by reference to the rights and duties of the persons 
concerned and the essential feature of an employment relationship is that, for a 
certain period of time, a person performs services for and under the direction of 
another person, in return for which he receives remuneration. 
19 Paragraph 2 of the Law on non-discrimination in the labour market defines an 
employer as a person subject to duties and a worker as a person enjoying rights. 
Thus, the directive was implemented in Danish law using the words ‘arbejdsgiver’ 
[employer] and ‘lønmodtager’ [worker]. Inherent in those concepts in Danish 
labour law is the premiss that the person subject to duties cannot be a congress 
which can decide every four years whether a person who is in fact subject only to 
his or her own views, is to remain in office. Thus, an elected person also differs 
from a manager. If A, as an elected person, is to be compared with a person in the 
world of company law, it should not be with a manager, but rather a chief 
executive. 
20 The fact that executive directors are not covered by the concept of 
worker/employee has been established by the Court of Justice (see judgments in 
IO, paragraphs 31 to 36, and Bosworth, paragraph 25). The 
Ligebehandlingsnævnet and A are seeking to extend the Balkaya judgment to 
include elected persons, but there is no justification for such an interpretation. 
There is not a single specific ruling, decision or opinion from any body governed 
by EU law stating that it was intended that elected chairs and member of boards of 
directors should be among the categories covered by the Employment Directive. 
21 It is in the DNA of HK and HK/Privat for politically elected persons not to be 
employees and for the prohibition of discrimination on the ground of age thus not 
to cover politically elected persons. HK/Privat, the other sectors and the trade 
union confederation maintain, in everyday life and practice, a clear distinction 
between politically elected persons and employees. 
HK/DANMARK AND HK/PRIVAT 
 
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22 In addition to the above considerations, the legal arguments put forward by HK 
can be summarised as being that union representatives elected to political posts in 
HK cannot be regarded as workers/employees under Paragraph 2(1) of the Law on 
non-discrimination in the labour market or the EU directive. Union representatives 
are not employed, they are not subject to instructions and they cannot be removed. 
The post of convenor of a professional organisation does not constitute an 
occupation within the meaning of the directive. It is objectively justified by a 
legitimate aim to have an age limit and the associations may lawfully adopt 
selection criteria involving age restrictions. It makes no difference that politically 
elected persons receive financial compensation or that they are full-time. 
Succinct statement of the reasons for the reference 
23 The Court of Justice may assume that A was employed full-time as sector 
convenor in the trade union HK and had no outside occupation. As sector 
convenor, A was responsible for overall management of HK/Privat and her duties 
consisted, in particular, in laying down policy in the sector’s professional field, 
concluding and renewing the sector’s agreements, selecting agreement 
requirements for the sector, and implementing decisions adopted by the sector 
board, the sector congress and HK/Danmark’s management board, of which A 
was also a member. Under the ‘contract for an elected person’, A’s monthly salary 
amounted to DKK 69 548.93, which was adjusted on an ongoing basis. It is also 
clear that A was not covered by the provisions of the Funktionærloven (Law on 
salaried employees) since a political office was involved, that A was not covered 
by an agreement but followed HK’s administrative rules, that the Ferieloven (Law 
on holidays) applied, and that A had an obligation to maintain professional 
secrecy. 
24 The Court of Justice may further assume that A, as elected sector convenor, was 
not employed under a contract of service in which she was subject to instructions 
from a superior but, on the contrary, held an honorary office under the authority of 
the sector congress which had elected her. However, at the same time it should be 
assumed that A was employed full-time as sector convenor during the period 
stated and received a considerable salary which constituted her entire livelihood, 
and that the role of sector convenor also included certain elements characteristic 
of ordinary workers. 
25 The Employment Directive has a broad objective and the Court of Justice has not 
defined in detail the concepts of ‘employment’, ‘self-employment’ and 
‘occupation’ in Article 3(1)(a) concerning the scope of the directive. The directive 
contains no provisions which relate expressly to politically elected persons in 
trade unions and the Court of Justice does not appear to have ruled on whether or 
not politically elected persons in trade unions are covered by the Employment 
Directive. 
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26 The Østre Landsret finds that there is uncertainty as to whether A, as a politically 
elected sector convenor in a trade union, is covered by the Employment Directive, 
including in the circumstances described above. 
27 Since clarification thereof is of decisive importance to the outcome of the case, the 
Østre Landsret finds it necessary to request the Court of Justice to answer the 
question set out above.