Opinion of the Advocate General — ECLI:EU:C:2020:944
Date: 2020-11-19
Language of the case: Greek
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary C-511/19 — 1 
Case C-511/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
4 July 2019 
Referring court: 
Areios Pagos (Greece) 
Date of the decision to refer: 
11 June 2019 
Applicant:  
AB 
Respondent:  
Olympiako Athlitiko Kentro Athinon — Spyros Louis 
  
Subject-matter of the main proceedings 
Reference for a preliminary ruling — Article 267 TFEU — Directive 
2000/78/ΕC — Equal treatment in employment and occupation — Age 
discrimination — Indirect discrimination — National legislative provision 
providing for employees under contract in the broader public sector to be placed 
on reserve based on the criterion of closest entitlement to retirement on a full 
old-age pension — Justification for the national legislative provision 
Subject-matter and legal basis for the request for a preliminary ruling 
Interpretation of EU law, Article 267 TFEU 
Questions referred 
(Α) Does the adoption by the Member State of legislation applicable to 
government, local authorities and public-law legal entities and to all bodies 
(private-law legal entities) in the broader public sector in general in their 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-511/19 
 
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capacity as employer, such as that adopted under Article 34(1)(c), (3)(a) and 
(4) of Law 4024/2011 placing staff under a private-law contract of 
employment with the above bodies on reserve for a period not exceeding 
twenty-four (24) months between 1 January 2012 and 31 December 2013 
based solely on the criterion of the closest entitlement to retire on a full old-
age pension corresponding to thirty-five (35) years’ insurance, constitute 
indirect age discrimination within the meaning of Article 2(1) and (2)(b) and 
Article 3(1)(c) of Directive 2000/78/EC, especially given the fact that, under 
the insurance legislation in force at the time and disregarding cases that are 
of no relevance here, staff under a contract of employment needed to be 
insured with the Social Insurance Institute (IKA) or some other major 
insurance fund for (at least) 10 500 working days (35 years) and to be (at 
least) 58 years of age in order to substantiate their right to retire on a full-old 
age pension, without of course precluding the possibility of the above period 
of insurance (35 years) being completed at a different age depending on the 
individual case? 
(Β) If the answer to Question (Α) is in the affirmative, can the adoption of a 
labour reserve system be objectively and logically justified, within the 
meaning of Article 2(2)(b)(i) and Article 6(1)(a) of the Directive, by the 
immediate need to ensure organisational, operational and fiscal results and, 
more specifically, by the immediate need to cut public spending in order to 
achieve certain quantitative targets by the end of 2011, as referred to in the 
explanatory memorandum to the law and provided for in particular under the 
Medium-Term Fiscal Strategy Framework, and thus honour Greece’s 
undertaking to its partner-lenders to address the very acute and prolonged 
fiscal and economic crisis gripping the country and, at the same time, to 
restructure and reduce the swollen public sector? 
(C) If the answer to Question (Β) is in the affirmative: 
(1) Is the adoption of a measure such as that adopted under 
Article 34(1)(c) of Law 4024/2011, providing for the salary of staff placed 
on reserve to be cut drastically to 60% of the basic salary of which they were 
in receipt when they were placed on reserve, without at the same time 
requiring the said staff to work in the relevant public sector, and causing the 
loss (in fact) of any promotion in terms of pay-scale or employment grade 
during the period between their being placed on reserve and their dismissal 
due to retirement on a full old-age pension, an appropriate and necessary 
means of achieving the above aim, within the meaning of Article 2(2)(b)(i) 
and Article 6(1)(a) of the Directive, where: 
(a) such staff retain the facility to find an alternative occupation (in the 
private sector) or have the opportunity to pursue a freelance profession 
or business while on reserve, without losing the right to payment of the 
aforesaid reduced basic salary, unless the salary or income from their 
new occupation or employment exceeds the salary of which they were 
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in receipt prior to being placed on reserve, in which case the above 
reduced basic salary is cut by the surplus (see Article 34(1)(f)); and 
(b) the public-sector employer or, if it is abolished, the Organismos 
Apascholisis Ergatikou Dynamikou (Hellenic Manpower Employment 
Organisation, Greece, ‘OAED’) undertakes to pay both the employer’s 
and the employee’s main, supplementary and health and welfare 
insurance contributions to the relevant insurance fund based on the 
salary of which the employee was in receipt prior to being placed on 
reserve pending the employee’s retirement (see Article 34(1)(d)); and 
(c) exemptions from labour reserve status are provided for vulnerable 
social groups which require protection (other spouse placed on reserve, 
spouse or child with a disability of at least 67% living with and 
dependent on the employee, employee with a disability of at least 67%, 
parents of large families, single-parent family living with and 
dependent on the employee) (see Article 34(1)(b); and 
(d) the aforesaid staff are granted the option of transferring to other vacant 
posts in public-sector bodies based on objective and merit-based 
criteria by including them in the selection lists of the Anotato 
Symvoulio Epilogis Prosopikou (Supreme Council for Civil Personnel 
Selection, Greece, ‘ASEP’) (see Article 34(1)(a)), although that option 
was limited in fact owing to drastic cutbacks in staff recruitment by 
various public-sector bodies due to the need to cut spending; and 
(e) care is taken to adopt measures concerning the repayment of housing 
loans obtained from the Tameio Parakatathikon kai Daneion (Deposits 
and Loans Fund, Greece) by workers placed on reserve and to draft an 
agreement between the Greek State and the Enosi Ellinikon Trapezon 
(Hellenic Bank Association, Greece) to facilitate the repayment of 
loans contracted by such staff from other banks, based on each 
worker’s total family income and assets (see Article 34(10) and (11); 
and 
(f) provision has been made under a more recent law (see Article 1(15) of 
Law 4038/2012, Government Gazette Series I, Number 14) for pension 
regulations and the payment order to be issued as a matter of priority 
for the staff referred to under (b) and (c), that is within no more than 
four months of their dismissal and submission of the supporting 
documents required in order to release their pension; and  
(g) the aforesaid loss of promotion in terms of pay-scale or employment 
grade by staff under a private-law contract of employment during the 
period between their being placed on reserve and their dismissal due to 
retirement on a full old-age pension will not apply in most cases, 
including the present case, as, due to the length of time the employees 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-511/19 
 
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have spent in the public sector, they have already reached the top pay 
scale and/or employment grade provided for under the applicable 
legislation governing promotions. 
(2) Is the adoption of a measure such as that adopted under 
Article 34(1)(e) of Law 4024/2011, eliminating, for employees who are 
dismissed or who retire from their occupation on qualifying for a full old-
age pension, all (or a proportion) of the severance pay provided for under 
Article 8(b) of Law 3198/1955 equal to 40% of the severance pay provided 
for employees with supplementary insurance (which, in the case of public-
sector bodies fulfilling a public service obligation or subsidised by the State, 
such as the respondent private-law legal entity, is capped at the sum of 
EUR 15 000), by offsetting it against the reduced salary received during the 
period on reserve, an appropriate and necessary means of achieving the 
above aim within the meaning of Article 2(2)(b)(i) and Article 6(1)(a) of the 
Directive, bearing in mind that the aforesaid staff would otherwise have 
received that reduced severance pay under the aforesaid applicable labour 
legislation irrespective of whether they resigned or were dismissed by the 
body in which they were employed? 
Provisions of EU cited 
Council Directive 2000/78/ΕC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation (OJ 2000 L 303, 
p. 16): Recital 25 and Articles 1, 2(1) and (2)(b), 3(1)(c) and 6(1)(a) 
Provisions of national law cited 
Law 4024/2011, Pension arrangements, uniform pay scales/employment grades, 
reserve labour force and other provisions in application of the Medium-Term 
Fiscal Strategy Framework 2012-2015 (Government Gazette Series I, Number 
226): Article 34 
Law 3304/2005, Application of the principle of equal treatment irrespective of 
racial or ethnic origin, religious or other beliefs, disability, age or sexual 
orientation (Government Gazette Series I, Number 16) 
Law 4443/2016 Ι) Transposition …of Directive 2000/78/ΕC establishing a general 
framework for equal treatment in employment and occupation, …(Government 
Gazette Series I, Number 232) 
Brief summary of the facts and proceedings 
1 ΑΒ, the applicant in the main proceedings, was engaged by the respondent in the 
main proceedings, Olympiako Athlitiko Kentro Athinon — Spyros Louis 
OLYMPIAKO ATHLITIKO KENTRO ATHINON 
 
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(‘OAKA’) on 23 June 1982 as an electrician/technician under an employment 
contract of indefinite duration. 
2 By notice issued by ΟΑΚΑ on 30 December 2011, ΑΒ was automatically placed 
on reserve as of 1 January 2012 in application of Article 34(1)(c), (3)(a), (4) and 
(8) of Law 4024/2011. Although, when he was placed on reserve, he was in 
receipt of a salary of EUR 3 775.58 (gross) per month, that salary was cut when he 
was placed on reserve to 60% of his basic salary, giving a total of EUR 1 064.99 
(gross) per month as of 1 January 2012. 
3 On 30 April 2013 ΟΑΚΑ terminated AB’s contract of employment and, under the 
provision of Article 34(1)(e) of Law 4024/2011, which provides for severance pay 
on dismissal to be offset against the salary paid to the employee while on reserve, 
it did not pay him statutory severance pay on the grounds that he qualified for a 
full old-age pension from his insurance fund. 
4 Relying inter alia on the contradiction between the aforesaid provisions of 
Article 34 of Law 4024/2011, inasmuch as they introduce age discrimination, and 
the provisions of Directive 2000/78, AB initiated proceedings in the Monomeles 
Protodikeio Athinon (Court of First Instance (Single Judge), Athens, Greece), by 
which he requested, inter alia, that the Court find his placement on reserve as of 
1 January 2012 to be void, order ΟΑΚΑ to pay him the difference between the 
salary of which he was in receipt prior to being placed on reserve and the salary 
which he was paid after being placed on reserve for the period from 1 January 
2012 to 30 April 2013, and further find that ΟΑΚΑ was liable to pay him 
severance pay totalling EUR 32 108.04 (without the EUR 15 000 cap) with 
statutory interest. 
5 The Monomeles Protodikeio Athinon (Court of First Instance (Single Judge), 
Athens) upheld the claim in part. More particularly, in its judgment, having found 
that the sole criterion by which AB had been selected for placement on reserve in 
application of Article 34 of Law 4024/2011 was his closeness to retirement and 
that this constituted age discrimination which did not serve an objective and 
rational legitimate aim, in breach of the relevant provisions of Directive 2000/78, 
as transposed into the national legal system under Law 3304/2005 (as 
subsequently replaced by Law 4443/2016), the Court held, having interpreted the 
aforesaid provision of Article 34 of Law 4024/2011 in light of the letter and 
purpose of the Directive, that the placement of ΑΒ on reserve was void and it 
therefore awarded him the aforesaid difference in salary for the period from 
1 January 2012 to 30 April 2013 and found that ΟΑΚΑ was liable for payment to 
him of the sum of EUR 15 000 in severance pay. 
6 OAKA lodged an appeal against the judgment of the Monomeles Protodikeio 
Athinon (Court of First Instance (Single Judge), Athens) in the Monomeles 
Efeteio Athinon (Court of Appeal (Single Judge), Athens, Greece), which 
dismissed the action as unfounded. The court of second instance held, inter alia, 
that ΑΒ was not entitled to the difference in salary for the aforesaid period, as his 
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placement on reserve in application of Article 34 of Law 4024/2011 was entirely 
valid, in that it did not conflict either with the provisions of the Constitution or 
with the provisions of Directive 2000/78. 
7 The court of second instance held that the labour reserve system served the need 
to limit wage costs and restore public finances and restructure and limit the 
swollen public sector and broader public sector, and that it was introduced under 
the relevant provision of the Medium-Term Fiscal Strategy Framework during the 
extended economic crisis faced by the country which, in any event, justifies 
different treatment based on the horizontal and objective criterion of closeness to 
entitlement to retire on a full pension. At the same time (given that it allows 
workers placed on reserve to meet their day-to-day needs pending full retirement 
and takes care to protect vulnerable social groups and to regulate matters 
concerning the repayment of housing loans, thereby ensuring that their key 
constitutional and social rights are not affected), it is an appropriate and necessary 
means of achieving the aforementioned aim. 
8 The court of second instance also found that OAKA was included in the bodies 
covered by the reduced severance pay provisions and that, therefore, the severance 
pay owed to AB totalled EUR 15 000 (as found by the court of first instance), 
which was offset against the salary paid to him while on reserve under 
Article 34(1)(e) of Law 4024/2011. 
9 AB lodged an application for annulment of the judgment of the Monomeles 
Efeteio Athinon (Court of Appeal (Single Judge), Athens), contending, inter alia, 
that the contested judgment was vitiated by error in that, in admitting that the 
labour reserve system arrangements introduced under Article 34(1)(c), (2), (3), 
first paragraph, (4) and (9) of Law 4024/2011 are compatible with the 
Constitution and with Articles 2([2])(b), 3(1)(c) and 6(1), first paragraph, of 
Directive 2000/78 prohibiting age discrimination, it infringed the above 
substantive provisions of the Constitution and of EU law. 
Brief summary of the basis for the request for a preliminary ruling 
10 According to the explanatory memorandum to Law 4024/2011, Article 34 
implemented the labour reserve system provided for under the Medium-Term 
Fiscal Strategy Framework and under Article 37(7) of Law 3986/2001, in order to 
honour Greece’s undertakings towards its partner-lenders to place 30 000 public-
sector workers on reserve and save EUR 300 000 000 during 2012 and to 
complete the procedure by the end of 2011. According to that memorandum, the 
main benefits of the measure are that it directly ensures organisational, operational 
and fiscal results in keeping with the strategic aim of limiting the size of the 
government and cutting public spending, without at the same time making most of 
the workers placed on reserve unemployed or jeopardising their pension and also 
without engendering any mass opposition among the staff of the public 
administration and the broader public sector or, in the overwhelming majority of 
OLYMPIAKO ATHLITIKO KENTRO ATHINON 
 
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cases, burdening the above bodies with the cost of severance pay, which would 
have been a financial disaster. 
11 Bearing the aforementioned aim in mind, that intervention on the part of the 
legislature in introducing the labour reserve system based on the horizontal 
criterion of employees’ closeness to entitlement to a full old-age pension from 
their insurance fund does not infringe the fundamental constitutional principles 
enshrined in Articles 2 (protection of the value of the human being), 4 (equality of 
citizens) and 5 (free development of individuality) of the Constitution. That is 
because, in times of prolonged economic crisis, the legislature may introduce 
immediate spending cuts which place a financial burden on large sections of the 
population, with the aim of improving the future fiscal and economic situation, 
especially where such measures simultaneously seek to achieve the legitimate aim 
of restructuring and limiting the swollen public sector and include specific 
individual arrangements to enable the workers placed on reserve to meet at least 
some of their basic day-to-day needs and specific provisions to mitigate the 
adverse impact which they suffer, so as to ensure that their key constitutionally 
protected individual and social rights are not affected. 
12 Moreover, staff employed by the government, local authorities, public-law legal 
entities and public-sector bodies in general (such as OAKA) to fill posts under a 
private-law contract of employment of indefinite duration may be dismissed by 
the body which employs them at any time by terminating their contract of 
employment under the relevant provisions of labour law. Consequently, as the 
public body concerned could freely terminate their contract of employment, the 
legislature was perfectly within its right to opt for the less onerous reserve system 
for those employees close to retirement. 
13 Moreover, unlike permanent civil servants in the narrow public sector, staff 
employed under a private-law contract of employment do not enjoy permanent 
status and, consequently, they are not subject, even mutatis mutandis, to the 
provisions of Article 103(2) and (4) of the Constitution, the first of which states 
that no-one may be appointed to a post not provided by law and the second of 
which states that civil servants holding posts provided by law are to be permanent, 
based on which the Symvoulio tis Epikrateias (Council of State, Greece) found the 
provision of Article 33 of Law 4024/2011, introducing a pre-retirement standby 
system for permanent civil servants of general government, local authorities and 
public-law legal entities and containing similar arrangements to Article 34 (but 
not the provision of Article 34 relating to this case) to be unconstitutional. 
14 In the light of the above, the referring court dismissed as unfounded the ground 
for annulment to the extent that it alleged that Article 34 of Law 4024/2011 is 
unconstitutional, and went on to examine that ground to the extent that it alleges 
that that provision infringes EU law. 
15 Article 34(1)(c), (3), first paragraph, and (4) of Law 4024/2011 introduce a labour 
reserve system for persons already employed under a private-law contract of 
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employment by government, local authorities, public-law legal entities and 
private-law legal entities in the broader public sector for a period of no more than 
two years (from 1 January 2012 to 31 December 2013), based on the horizontal 
criterion of closeness to entitlement to retirement on a full old-age pension 
corresponding to 35 years’ insurance during the above period. 
16 During that period and pending fulfilment of the necessary retirement 
requirements, the persons on reserve suffer a drastic reduction in salary, but are 
not required to work for their public-sector employer. Also, the severance pay to 
which they would otherwise be entitled is offset against the reduced salary which 
they receive while on reserve and their placement on reserve is considered as 
advance notice of dismissal for the purpose of all the legal consequences that 
entails. 
17 These arrangements are designed to serve the need to make the immediate cuts in 
wage costs agreed between Greece and its partner-lenders and to restructure the 
public and broader public sector in light of the severe economic crisis gripping the 
country. 
18 The arrangements in question do not specify a particular age limit for the staff 
placed on reserve and the question of direct age discrimination within the meaning 
of Article 2(1)(a) of Directive 2000/78 does not arise. However, the legislative 
arrangement in question is based on the horizontal criterion of workers’ closeness 
to entitlement to a full old-age pension from their insurance fund on completion of 
35 years’ insurance, provided that retirement requirements are fulfilled during that 
period of time from 1 January 2012 to 31 December 2013. Consequently, the 
question arises as to whether the legislative arrangement enacted under 
Article 34(3), first paragraph, and (4) of Law 4024/2011 constitutes indirect age 
discrimination within the meaning of Article 2(1)(b) of the Directive, especially 
given the fact that, under the insurance legislation and disregarding cases that are 
of no relevance here, insured persons under a contract of employment, such as 
AB, could also have substantiated their right to a full old-age pension from their 
insurance fund based solely on the fact that they had been insured with the Social 
Insurance Institute (IKA) or some other main insurance fund for (at least) 10 500 
working days (35 working years) as an employee working under a contract of 
employment and were also 58 years of age (those being the age and working-day 
limits that applied at the time). 
19 It should, of course, be noted that this particular case does not preclude the 
possibility of the period of insurance (35 years) being completed at a later (or 
earlier) age than 58, depending on when the employee’s working life and 
insurance began or other reasons pertaining to the individual; however, aside from 
the aforesaid minimum period of insurance as an employee (35 years), employees 
insured by the IKA must also be at least 58 years old in order to substantiate their 
right to a full old-age pension after thirty-five years in work. 
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20 If the above legislation does indeed constitute indirect age discrimination within 
the meaning of the Directive, the question then arises as to whether the reasons set 
out in the explanatory memorandum to the law are an objectively and rationally 
legitimate aim which justifies different treatment, bearing in mind the conditions 
under which it was decided to place some staff on reserve, and, furthermore, as to 
whether the following specific legislative measures with regard to the salaries and 
severance pay of the employees placed on reserve are an appropriate and 
necessary means of achieving that aim within the meaning of Articles 2(2)(b) and 
6(1) of Directive 2000/78: 
(a) the measure adopted under Article 34(1)(c) of Law 4024/2011, providing for 
a drastic cut to the salary of the staff placed on reserve to 60% of their basic 
salary, without at the same time requiring the said staff to work in the relevant 
public sector, thereby eliminating any promotion in terms of pay-scale or 
employment grade during the period between their being placed on reserve and 
their dismissal due to retirement on a full old-age pension, bearing in mind the 
measures provided for under the law to protect that staff (facility to find 
alternative occupation or self-employment without losing the right to payment of 
the aforesaid reduced basic salary, undertaking by the body or the OAED to pay 
both the employer’s and the employee’s insurance contributions to the relevant 
insurance fund based on the employee’s previous salary pending the employee’s 
retirement, exemption from reserve status for vulnerable social groups which 
require protection, option for such staff to transfer to other vacant posts in public-
sector bodies, measures regarding the repayment of housing loans obtained by 
such staff, etc.); and 
(b) the measure adopted under Article 34(1)(e) of Law 4024/2011, eliminating, 
for employees who are dismissed or who retire from their occupation on 
qualifying for a full old-age pension, all (or a proportion) of the statutory 
severance pay equal to 40% of the severance pay provided for employees with 
supplementary insurance (which, in the case of public-sector bodies which fulfil a 
public service obligation or are subsidised by the State, such as OAKA, is capped 
at the sum of EUR 15 000), by offsetting it against the reduced salary received 
during the period on reserve, which severance pay that staff would otherwise have 
received under the aforesaid applicable labour legislation irrespective of whether 
they resigned or were dismissed by the body in which they were employed. 
21 In the light of the above, the question arises as to the compatibility of the above 
provisions of Article 34 of Law 4024/2011 with the provisions of Articles 2(1) 
and (2)(b), 3(1)(c) and 6(1)(a) of Directive 2000/78. Therefore, the referring court 
unanimously finds that the questions must be referred to the Court of Justice of the 
European Union for a preliminary ruling in accordance with Article 267 TFEU.