Opinion of the Advocate General — ECLI:EU:C:2008:518
Date: 2008-09-23
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of the Judgment 1. Social policy – Equal treatment in employment and occupation – Directive 2000/78 (Council Directive 2000/78, Recital 14 and Arts 1 and 3(1)(c)) 2. Social policy – Equal treatment in employment and occupation – Directive 2000/78 (Council Directive 2000/78, Arts 2(2)(a) and 6(1)) 3. Social policy – Equal treatment in employment and occupation – Directive 2000/78 (Council Directive 2000/78, Arts 2(2(b) and 6(1)) 1. Directive 2000/78 establishing a general framework for equal treatment in employment and occupation is designed to lay down a general framework in order to guarantee equal treatment in employment and occupation to all persons, by offering them effective protection against discrimination on one of the grounds covered by Article 1, which include age. According to recital 14 in its preamble, Directive 2000/78 is to be without prejudice to national provisions laying down retirement ages. However, that recital merely states that the directive does not affect the competence of the Member States to determine retirement age and it does not in any way preclude the application of the directive to national measures governing the conditions for termination of employment contracts where the retirement age, thus established, has been reached. Thus, national regulations which do not establish a mandatory scheme of automatic retirement, but lay down the conditions under which an employer may derogate from the principle prohibiting discrimination on grounds of age and dismiss a worker because he has reached retirement age, affect the length of the employment relationship between the parties and, more generally, the pursuit by the worker concerned of his professional or trade activity. Furthermore, that legislation also deprives workers who have reached or are about to reach retirement age of any protection against discrimination on grounds of age, thereby limiting the future participation of that category of workers in professional life. National legislation of that kind must be regarded as establishing rules relating to ‘employment and working conditions, including dismissals and pay’ within the meaning of Article 3(1)(c) of Directive 2000/78 and, therefore, it falls within the scope of that directive. (see paras 23, 25, 27-28, 30, operative part 1) 2. 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 national measure which does not contain a precise list of the aims justifying derogation from the principle prohibiting discrimination on grounds of age falling in particular within the category of direct discrimination as defined in Article 2(2)(a). However, Article 6(1) offers the option to derogate from that principle only in respect of measures justified by legitimate social policy objectives, such as those related to employment policy, the labour market or vocational training. It is for the national court to ascertain whether national legislation allowing employers to dismiss workers who have reached retirement age is consonant with such a legitimate aim and whether the national legislative or regulatory authority could legitimately consider, taking account of the Member States’ discretion in matters of social policy, that the means chosen were appropriate and necessary to achieve that aim. (see para. 52, operative part 2) 3. Article 6(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation gives Member States the option to provide, within the context of national law, for certain kinds of differences in treatment on grounds of age if they are ‘objectively and reasonably’ justified by a legitimate aim, such as employment policy, or labour market or vocational training objectives, and if the means of achieving that aim are appropriate and necessary. Article 6(1) allows Member States to introduce into their national law measures providing for differences in treatment on grounds of age which fall in particular within the category of direct discrimination as defined in Article 2(2)(a) of that directive. It is indeed to that extent, in particular, that Article 6(1) must be interpreted as applying, in accordance with the first subparagraph thereof, ‘notwithstanding Article 2(2)’ of that directive. That option, in that it constitutes an exception to the principle prohibiting discrimination, is however strictly limited by the conditions laid down in Article 6(1) itself. As to the existence of a difference in the application of the criteria set out in Article 2(2)(b) of Directive 2000/78 as compared with the application of the criteria in Article 6(1), the latter provision gives Member States the option to provide, within the context of national law, that certain forms of differences in treatment on grounds of age do not constitute discrimination within the meaning of that directive if they are ‘objectively and reasonably’ justified. Although the word ‘reasonably’ does not appear in Article 2(2)(b) of the directive it is inconceivable that a difference in treatment could be justified by a legitimate aim, achieved by appropriate and necessary means, but that the justification would not be reasonable. Accordingly, no particular significance should be attached to the fact that that word was used only in Article 6(1) of the directive. However, it is important to note that the latter provision is addressed to the Member States and imposes on them, notwithstanding their broad discretion in matters of social policy, the burden of establishing to a high standard of proof the legitimacy of the aim pursued. (see paras 61-62, 65, 67, operative part 3)