Order — ECLI:EU:C:2018:68
Date: 2018-02-07
Language of the case: Italian
Court formation: Tenth Chamber
Subject matter: Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Order of the Court (Tenth Chamber), 7 February 2018 Social policy — Male and female workers — Access to employment and working conditions — Equal treatment — Directive 2006/54 — National legislation providing for the temporary possibility for performing artists having reached retirement age to continue to perform until the age previously laid down for entitlement to a pension — Establishment of different levels, according to sex, of the age for entitlement to that pension — Direct discrimination on grounds of sex — Unlawful (European Parliament and Council Directive 2006/54, Arts 2(1)(b) and 14(1)(c)) Article 14(1)(c) Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation must be interpreted as meaning that national rules, such as those laid down in Article 3(7) of Decree-Law No 64 of 30 April 2010, converted into Law No 100, of 29 June 2010, in the version in force at the material time, pursuant to which workers employed as dancers having reached the retirement age laid down by those rules of 45 years old for both women and men, have the option for a transitional period of two years to continue to work until the working age limit laid down by the previous rules, set at 47 years old for women and 52 years old for men, establishes direct discrimination based on sex which is prohibited by that directive. In that connection, it must be recalled that Directive 2006/54 draws a distinction between discrimination directly on grounds of sex and ‘indirect’ discrimination inasmuch as the former cannot be justified by a legitimate aim. By contrast, pursuant to Article 2(1)(b) of that directive, provisions, criteria or practices liable to constitute indirect discrimination can avoid being classified as discriminatory if they are ‘objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary’ (judgment of 18 November 2010, Kleist, C‑356/09, EU:C:2010:703, paragraph 41). Therefore, a difference of treatment, such as that at issue in the main proceedings, cannot be justified by the wish to avoid exposing the workers concerned to a sudden change, in a restrictive sense, from the preceding rules on continuation of employment. (see paras 38-40, operative part)