Judgment — ECLI:EU:C:2015:115
Date: 2015-02-26
Language of the case: Danish
Court formation: Seventh Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary — Judgment of the Court (Seventh Chamber), 26 February 2015 Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — National legislation precluding workers entitled to receive a State retirement pension from severance allowance — Justification based on the pursuit of legitimate aims — Lawfulness — Conditions — Assessment by the national court (Council Directive 2000/78, Arts 2(1)(a) and 6(1)) Article 2(1) and (2)(a) and Article 6(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding national legislation from providing that an employer must, upon termination of the employment relationship of a salaried employee who has been continuously employed in the same undertaking for 12, 15 or 18 years, pay an amount equivalent to one, two or three months’ salary respectively, unless the salaried employee is entitled to receive a State retirement pension upon termination of employment to the extent that that legislation is both objectively and reasonably justified by a legitimate aim relating to employment and labour market policy as well as constituting an appropriate and necessary means of achieving that aim. It is for the national court to satisfy itself that this is the case. Restricting severance allowance to only those workers who, on termination of the employment relationship, are not entitled to a State retirement pension does not appear unreasonable in the light of the objective pursued by the legislature of providing increased protection for workers for whom it is difficult to find new employment as a result of their length of service in an undertaking. The abovementioned national legislation also makes it possible to limit the scope for abuse by preventing workers who intend to retire from claiming a severance allowance which is intended to support them while seeking new employment. Therefore, that national legislation does not appear to be manifestly inappropriate for attaining the legitimate employment policy objective pursued by the EU legislature. Furthermore, the national legislation aims to ensure, in accordance with the principle of proportionality and the need to counter abuse, that severance allowance is paid only to those for whom it is intended, namely those who intend to continue to work but, because of their age, generally encounter more difficulties in finding new employment. That legislation thus prevents severance allowance from being paid to workers who will in any event be eligible for a State retirement pension and, consequently, it does not go beyond what is necessary to attain the objectives which it pursues. Moreover, the provision of the national legislation at issue can be distinguished from those giving rise to the judgment in Ingeniørforeningen i Danmark (EU:C:2010:600). Given that the pension at issue in those proceedings was paid from the age of 60, any employee of that age would be entitled upon termination of the employment relationship only to a pension of an amount smaller than that which the employee would otherwise have been entitled to, had he continued to work until the requisite age before retiring. As a consequence, such an employee would risk receiving a reduction in pension entitlement on the ground of taking early retirement. By contrast, this is not the case as far as the exclusion of severance allowance where the employee is entitled to receive a State retirement pension upon termination of the employment relationship is concerned, because the risk of incurring a reduction in pension entitlement on the ground of early retirement does not, in principle, concern employees who are entitled to a State retirement pension. In addition, to the extent that the severance allowance is a lump sum payment corresponding to one, two or three months’ salary, a provision providing for its exclusion as far as those workers who are eligible for a State retirement pension are concerned does not appear capable of causing a significant loss of income to the departing employee in the long term. In that regard, the exclusion of the severance allowance at issue is distinguishable from the facts arising in the judgment in Dansk Jurist- og Økonomforbund (C-546/11, EU:C:2013:603), which concerned the exclusion of those officials who were entitled to a pension at the age of 65 from entitlement to retain their current salary for three years post termination of the employment relationship. As a result, a provision excluding severance allowance where the salaried employee is entitled to receive a State retirement pension upon termination of the employment relationship does not appear unduly to prejudice the legitimate interests of workers who have reached the ordinary age of retirement. (see paras 27, 28, 31, 32, 37-42, 44, 45, operative part)