Opinion of the Advocate General — ECLI:EU:C:2010:248
Date: 2010-05-06
Language of the case: Danish
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Anti-discrimination
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary of the Judgment Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on grounds of age (Council Directive 2000/78, Arts 2 and 6(1)) 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 national legislation pursuant to which workers eligible for an old-age pension from their employer under a pension scheme they have joined before attaining the age of 50 years may not, on that ground alone, claim a severance allowance aimed at assisting workers with more than 12 years of service in the undertaking in finding new employment. That exclusion is based on the idea that employees leave the labour market if they are eligible for an old-age pension from their employer and joined that pension scheme before attaining the age of 50 years. As a result of that age-based assessment, workers who satisfy the criteria for eligibility for a pension from their employer yet wish to waive their right to their pension temporarily and to continue with their career will not be able to claim the severance allowance even though it is intended to protect them. Thus, in pursuing the legitimate aim of preventing that allowance from being claimed by persons who are not seeking new employment but will receive a replacement income in the form of an occupational old-age pension, the measure at issue actually deprives workers who have been made redundant and who wish to remain in the labour market of entitlement to the severance allowance merely because they could, inter alia because of their age, draw such a pension. In addition, the measure at issue in the main proceedings prohibits an entire category of workers defined on the basis of their age from temporarily waiving their right to an old-age pension from their employer in exchange for payment of the severance allowance, which, after all, is aimed at assisting them in finding new employment. That measure may thus force workers to accept an old-age pension which is lower than the pension which they would be entitled to if they were to remain in employment for more years, leading to a significant reduction in their income in the long term. (see paras 44, 46, 49, operative part)