Opinion of the Advocate General — ECLI:EU:C:2007:106
Date: 2007-02-15
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Anti-discrimination
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 1. Social policy – Equal treatment in employment and occupation – Directive 2000/78 (Council Directive 2000/78, 14th recital, Arts 1, 2(1) and (2)(a), and 3(1)(c)) 2. Social policy – Equal treatment in employment and occupation – Directive 2000/78 (Council Directive 2000/78, Art. 2(1) and (6)) 1. As is clear both from its title and preamble and its content and purpose, 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 includes age. According to recital 14 in its preamble, the said directive is 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 does not in any way preclude the application of that directive to national measures governing the conditions for termination of employment contracts where the retirement age, thus established, has been reached. Thus, national legislation according to which the fact that a worker has reached the retirement age laid down by that legislation leads to automatic termination of his employment contract affects the duration of the employment relationship between the parties and, more generally, the engagement of the worker concerned in an occupation, by preventing his future participation in the labour force. Consequently, 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 as directly imposing less favourable treatment for workers who have reached that age as compared with all other persons in the labour force. Such legislation therefore establishes a difference in treatment directly based on age, as referred to in Article 2(1) and (2)(a) of Directive 2000/78. (see paras 42, 44-46, 51) 2. The prohibition of any discrimination on grounds of age, as implemented by Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, must be interpreted as not precluding national legislation pursuant to which compulsory retirement clauses contained in collective agreements are lawful where such clauses provide as sole requirements that workers must have reached retirement age, set at 65 by national law, and must have fulfilled the conditions set out in the social security legislation for entitlement to a retirement pension under their contribution regime, where – the measure, although based on age, is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market, and – it is not apparent that the means put in place to achieve that aim of public interest are inappropriate and unnecessary for the purpose. In the first place, the said legislation was adopted as part of a national policy seeking to promote better access to employment, by means of better distribution of work between the generations and to regulate the labour market, particularly for the purposes of curbing unemployment. The legitimacy of such an aim of public interest cannot reasonably be called into question, since employment policy and labour market trends are among the objectives expressly laid down in the first subparagraph of Article 6(1) of Directive 2000/78 and, in accordance with the first indent of the first paragraph of Article 2 EU and Article 2 EC, the promotion of a high level of employment is one of the ends pursued both by the European Union and the European Community. In that regard, the mere fact that the national provision in question does not expressly refer to an objective of that kind does not automatically preclude it from being justified under Article 6(1) of Directive 2000/78, provided that other elements, taken from the general context of the measure concerned, enable the underlying aim of that law to be identified for the purposes of judicial review of its objective justification. Since, moreover, as Community law stands at present, the Member States and, where appropriate, the social partners at national level enjoy broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it, it is for the competent authorities of the Member States to find the right balance between the different interests involved, ensuring that the national measures laid down in that context do not go beyond what is appropriate and necessary to achieve the legitimate aim pursued by the Member State concerned. It does not appear unreasonable for the authorities of a Member State to take the view that compulsorily retiring workers on the ground that they have reached the specified age-limit may be appropriate and necessary in order to achieve the legitimate aim in the context of national employment policy, consisting in the promotion of full employment by facilitating access to the labour market. Nor can the measure be regarded as unduly prejudicing the legitimate claims of compulsorily retired workers, since the relevant legislation is not based only on a specific age, but also takes account of the fact that the persons concerned are entitled at the end of their working lives to financial compensation by way of a retirement pension, the level of which cannot be regarded as unreasonable. (see paras 53-57, 62, 64, 68, 71-73, 77, operative part)