Opinion of the Advocate General — ECLI:EU:C:2012:451
Date: 2012-07-12
Language of the case: German
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary – Judgment of the Court (Second Chamber), 6 December 2012 1. Questions referred for a preliminary ruling – Jurisdiction of the Court – Limits – General or hypothetical questions – Abstract and purely hypothetical question with respect to the dispute in the main proceedings – Inadmissibility (Art. 267 TFEU) 2. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Scope (Council Directive 2000/78, Arts 1 and 3(1)(c)) 3. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on the ground of age – Redundancy – Different treatment objectively justified – Rules of an occupational social security scheme which provide for a method of calculation of redundancy payments applicable to workers older than 54 years of age who are made redundant on operational grounds which differ from the standard method, and which lead to payment of a smaller amount of compensation to those workers – Lawfulness – Conditions (Council Directive 2000/78, Arts 2(2) and 6(1)) 4. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on the ground of disability – Redundancy – Rules of an occupational social security scheme which provide for a method of calculation of redundancy payments applicable to workers older than 54 years of age who are made redundant on operational grounds which differ from the standard method, and which lead to payment of a smaller amount of compensation to those workers – Indirect discrimination on the ground of disability – Disregard for the heightened risks faced by disabled people – Exceeding the limit necessary to achieve social policy objectives – Not permissible (Council Directive 2000/78, Art. 2(2)) 1. See the text of the decision. (see paras 24, 26, 28) 2. See the text of the decision. (see paras 31-34) 3. Articles 2(2) and 6(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding rules of an occupational social security scheme under which, in the case of workers older than 54 years of age who are made redundant on operational grounds, a calculation is to be made of the compensation on the basis of the earliest possible date on which their pension will begin – unlike the standard method of calculation, which takes account in particular of the length of service – with the result that the compensation paid to those workers is lower than the compensation resulting from the application of that standard method, though still at least one half of the standard amount. Where such rules are aimed at granting compensation for the future, protecting younger workers and facilitating their reintegration into employment, whilst taking account of the need to achieve a fair distribution of limited financial resources in a social plan, it is possible to justify, by way of derogation from the general rule prohibiting discrimination on grounds of age, such differences in treatment in as much as the means employed are appropriate and necessary and do not go beyond what is required to achieve the objective pursued. (see paras 42, 43, 46, 54, operative part 1) 4. Article 2(2) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding rules of an occupational social security scheme under which, in the case of workers older than 54 years of age who are made redundant on operational grounds, the compensation to which they are entitled is calculated on the basis of the earliest possible date on which their pension will begin – unlike the standard formula, under which account is taken inter alia of the length of service – with the result that the compensation paid is lower than the standard formula compensation, although still at least one half thereof, and that alternative calculation method takes account of the possibility of receiving an early retirement pension on the ground of disability. It is apparent that the scheme at issue, while pursuing legitimate objectives, omitted to take account both of the risks faced by severely disabled people and of the fact that those risks tend to become exacerbated as they approach retirement age. Severely disabled people have specific needs stemming both from the protection their condition requires and from the need to anticipate possible worsening of their condition. Regard must be had to the risk that disabled workers may throughout their lives have financial requirements arising from their disability which cannot be adjusted and/or that, with advancing age, those financial requirements may increase. Otherwise, in ultimately paying a severely disabled worker compensation on termination which is lower than the amount paid to a non-disabled worker, the measure at issue has an excessive adverse effect on the legitimate interests of severely disabled workers and goes beyond what is necessary to achieve the social policy objectives pursued. (see paras 67‑70, 72, operative part 2)