Judgment — ECLI:EU:C:2011:560
Date: 2011-09-08
Language of the case: German
Court formation: Second Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Anti-discrimination
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on grounds of age – Right to negotiate collective agreements – Rights enshrined in the Charter of Fundamental Rights of the European Union (Charter of Fundamental Rights of the European Union, Arts 21 and 28; Council Directive 2000/78, Arts 2 and 6(1)) 2. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on grounds of age – Right to negotiate collective agreements – Rights enshrined in the Charter of Fundamental Rights of the European Union (Charter of Fundamental Rights of the European Union, Arts 21 and 28; Council Directive 2000/78, Arts 2 and 6(1)) 1. The principle of non-discrimination on grounds of age proclaimed in Article 21 of the Charter of Fundamental Rights of the European Union and given specific expression in Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, more particularly Articles 2 and 6(1) of that directive, must be interpreted as precluding a measure laid down by a collective agreement which provides that, within each salary group, the basic pay step of a public sector contractual employee is determined on appointment by reference to the employee’s age. The fact that European Union law precludes that measure and that it appears in a collective agreement does not interfere with the right to negotiate and conclude collective agreements recognised in Article 28 of the Charter of Fundamental Rights of the European Union. While the criterion of length of service is generally appropriate for achieving the legitimate aim of taking account of the professional experience acquired by the employee before he is appointed, the determination according to age of the basic pay step of a public sector contractual employee on appointment goes beyond what is necessary and appropriate for achieving that aim. A criterion also based on length of service or professional experience but without resorting to age would, from the point of view of Directive 2000/78, appear better adapted to achieving the legitimate aim mentioned above. The fact that, for a large number of employees appointed at a young age, the step in classification corresponds to their professional experience and that the criterion of age coincides in most cases with their length of service does not alter that assessment. (see paras 74, 77-78, operative part 1) 2. Articles 2 and 6(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation and Article 28 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding a measure in a collective agreement which replaces a system of pay for public sector contractual employees leading to discrimination on grounds of age by a system of pay based on objective criteria while maintaining, for a transitional period limited in time, some of the discriminatory effects of the earlier system in order to ensure that employees in post are transferred to the new system without suffering a loss of income. A transitional system intended to protect established advantages must be regarded as pursing a legitimate aim within the meaning of Article 6(1) of Directive 2000/78. Moreover, having regard to the broad discretion enjoyed by the social partners in the field of determining pay, it is not unreasonable for the social partners to adopt transitional measures which are appropriate and necessary for avoiding a loss of income on the part of the contractual employees concerned. (see paras 91-92, 98-99, operative part 2)