Opinion of the Advocate General — ECLI:EU:C:2016:121
Date: 2016-02-25
Language of the case: German
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary — Judgment of the Court (First Chamber), 16 June 2016 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant aspects of EU law (Art. 267 TFEU) 2. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — National rules providing for differences in treatment on grounds of age — Exclusion of the taking into account periods of apprenticeship and periods of work completed by a civil servant before reaching the age of 18 for the purposes of granting pension rights and calculating the amount of his retirement pension — Lawfulness — Justification — Possibility for Member States to fix, in relation to occupational social security schemes, the ages for admission or entitlement to retirement or invalidity benefits — Scope (European Parliament and Council Directive 2006/54, Art. 2(1)(f); Council Directive 2000/78, Art. 2(1) and (2)(a) and 6(2)) 1. See the text of the decision. (see para. 22) 2. Articles 2(1), 2(2)(a) and 6(2) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding national legislation which excludes the taking into account of periods of apprenticeship and of employment completed by a civil servant before reaching the age of 18 for the purpose of granting a pension entitlement and the calculation of the amount of his retirement pension, in so far as that legislation seeks to guarantee, within a civil service retirement scheme, a uniform age for admission to that scheme and a uniform age for entitlement to the retirement benefits provided under that scheme. Such national legislation provides for less favourable treatment for persons whose professional experience has, albeit only in part, been acquired before reaching the age of 18 as compared with those who have acquired experience of the same nature and of comparable length after reaching that age and therefore establishes a difference in treatment that is based directly on the criterion of age, within the meaning of Article 2(1) and Article 2(2)(a) of Directive 2000/78. Nonetheless, that difference in treatment may be justified under Article 6(2) of Directive 2000/78, which applies to occupational social security schemes that cover the risks of old age and invalidity, but only those that are expressly referred to therein. On the one hand, Directive 2000/78 does not define what is to be understood by an ‘occupational social security scheme’. A definition of that concept is, however, included in Article 2(1)(f) of Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. In that regard, the abovementioned retirement scheme for civil servants is a scheme which provides workers of a given occupational sector with benefits designed to replace the benefits provided for by statutory social security schemes within the meaning of Article 2(1)(f) of Directive 2006/54. On the other hand, that national legislation constitutes an expression of the freedom enjoyed by the Member States under Article 6(2) of Directive 2000/78 to fix, in relation to occupational social security schemes, an age for admission to civil service retirement schemes or entitlement to retirement benefits which are paid under that scheme. The wording of that provision is such that it allows the Member States not only to fix different ages for employees or groups or categories of employees, but also to fix, within an occupational social security scheme, an age for admission or entitlement to retirement benefits. (see paras 21, 25, 27, 28, 30, 32, operative part)