Opinion of the Advocate General — ECLI:EU:C:2013:65
Date: 2013-02-07
Language of the case: Danish
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Denmark

summary, a measure such as that at issue in the present case can be justified, provided that the graduation by age of contributions provided for pursues the aim of enabling older employees to save up a sufficient pension amount even if they start work at the undertaking in question later in their career, and graduation by age is at the same time intended to include younger employees in the occupational pension scheme at an early stage without overburdening them with pension contributions in their initial years of service. However, that applies only in so far as no other equally appropriate practicable measures for attaining those aims can be taken by economically reasonable means, which have a less disadvantageous effect on younger employees, and the disadvantages of unequal treatment are also not out of proportion to the advantages of the scheme. vi) Promotion of loyalty to the employer 74. The Belgian Government also points out that the measure could also be intended to bind employees to the undertaking for longer. Experian did not comment at the hearing on whether graduation by age was also intended to pursue this goal. It is therefore a matter for the national court to inquire whether this is the case and whether graduated contributions amount to a kind of premium on loyalty to the employer. 75. If that were the case, that would in principle be a legitimate aim. Graduation by age also appears, at least in regard to younger employees, appropriate to bind employees to the undertaking for longer. It must however be borne in mind that graduation of contributions is not related to the period of employment in the undertaking but is granted irrespective of that factor and thus also benefits employees who commence employment with Experian only very late in their career. Graduation by age is therefore not necessary on that score alone. Rather the more lenient and effective means of linking the amount of the contribution to participation in the undertaking rather than to age could be considered. That is for the national court to consider if it includes that aim within its purview. VI – Conclusion 76. I therefore propose that the Court should answer the questions referred to it as follows: (1) Article 6(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation allows a Member State to maintain in force a legal situation in which an employer may, as part of pay, make contributions graduated by age to an occupational pension scheme by, for example, paying a pension contribution of 6% for employees under 35 years of age, 8% for employees between 35 and 44 years of age and 10% for employees over 45 years of age. (2) Such a pension scheme can also be justified under Article 6(1) of Directive 2000/78 provided that the graduation by age of contributions provided for pursues the aim of enabling older employees to save up a sufficient pension amount even if they start work at the undertaking in question later in their career and graduation by age at the same time is intended to include younger employees in the occupational pension scheme at an early stage without overburdening them with pension contributions in their initial years of service. However, that applies only in so far as no other equally appropriate practicable measures for attaining those aims can be taken by economically reasonable means, which have a less disadvantageous effect on younger employees and the disadvantages of unequal treatment are also not out of proportion to the advantages of the scheme. 1 – Original language: German. 2 – See, in that regard, the leading judgment in Case C‑411/05 Palacios de la Villa [2007] ECR I‑8531 and Cases C‑499/08 Ingeniørforeningen i Danmark [2010] ECR I‑9343, ‘Andersen’ and C‑152/1 Odar [2012] ECR. 3 – Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) (‘the Directive’). 4 – Another aspect of Article 6(2) of the Directive is before the Court in Case C‑546/11, Toftgaard. See my Opinion of today’s date in that case. 5 – Law No 459 of 12 June 1996 on the prohibition of unequal treatment in the employment market. Amending Law No 1417 of 22 December 2004 incorporated the criteria of age and disability into the Law on equal treatment. The amending Law entered into force in December 2004. 6 – Danish Association of commercial and office employees. 7 – See Case C‑147/08 Römer [2011] ECR I‑3591, paragraph 32, and Case C‑267/06 Maruko [2008] ECR I‑1757, paragraph 41. 8 – Since this case relates to a purely occupational pension scheme and not a State payment system or one equated thereto, the exception in Article 3(3) of the Directive plainly does not apply. In particular the payments are not governed directly by statute but exclusively by the employment contract and only apply to a specific group of employees, namely employees of Experian. See Case C‑262/88 Barber [1990] ECR I‑1889, paragraph 22. 9 – See Case 80/70 Defrenne [1971] ECR 445, paragraph 6; Case 12/81 Garland [1982] ECR 359, paragraph 5; Barber, cited in footnote 8 above, paragraph 12; and Römer, cited in footnote 7 above, paragraph 32. 10 – Opinion in Römer, cited in footnote 7 above, point 54. 11 – See Case 170/84 Bilka [1986] ECR 1607, paragraph 22; Barber, cited in footnote 8 above, paragraph 28; and Case C‑50/96 Schröder [2000] ECR I‑743, paragraph 27. See also the thirteenth recital in the preamble to 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 (OJ 2006 L 204, p. 23), which states: ‘[i] n its judgment of 17 May 1990 in Case C‑262/88, the Court of Justice determined that all forms of occupational pension constitute an element of pay within the meaning of Article 141 of the Treaty’. 12 – See Barber, cited in footnote 8 above. 13 – See footnote 11. 14 – Barber, cited in footnote 8 above, paragraph 25. 15 – That result also accords with Case C‑152/91 Neath [1993] ECR I‑6935, paragraph 29, in which the Court looked at the specific contractual obligation of the employer when considering the question of classification of a payment as pay. In the case of Experian, the contract of employment provides only that the payment of the contribution is an obligation. It lays down no obligation as to the later payment of a pension. 16 – See, in that regards, my Opinion in Andersen (cited in footnote 2 above, point 28) and the references made therein, and the last sentence of the 25th recital in the preamble to the Directive: ‘[i]t is therefore essential to distinguish between differences in treatment which are justified …, and discrimination which must be prohibited’. 17 – See point 22. 18 – This applies at least as regards the German, French, English, Spanish and Italian language versions of the Directive which I have compared. At first sight, the wording of the Danish language version of the Directive contains only two variants, namely membership of occupational social security schemes (‘adgang til’) and the use, in those schemes, of age criteria in actuarial calculations (‘anvendlse af alderskriteriet inden for rammerne af disse ordninger’). However, that difference is, in my view, of no relevance in the present case, since the fixing of age limits for membership is also referred to in the Danish language version of the Directive and Experian’s retirement scheme is already justified by virtue of the first variant. 19 – It does not, however, include membership of all occupational social security schemes but only of those which relate to old age or disability. See on this my Opinion in Case C‑546/11 Toftgaard, of today’s date. 20 – Case C‑144/04 Mangold [2005] I‑9981, paragraph 74, and Case C‑555/07 Kücükdeveci [2010] ECR I‑365, paragraph 20. 21 – See Mangold, cited in footnote 20 above, paragraph 75. 22 – See Kücükdeveci, cited in footnote 20 above, paragraph 21. 23 – See Case C‑341/08 Petersen [2010] ECR I‑47, paragraph 60. 24 – See also, in that regard, point 38 of this Opinion. 25 – See Article 5(b) and (c) of the Commission’s Proposal for a Council Directive establishing a general framework for equal treatment in employment and occupation of 25 November 1999, COM(1999) 565 final, p. 23. 26 – See the version of Article 6(1) in the document of the Council of the European Union of 11 October 2000 (No 12269/00, p. 15), which mentions the phrase ‘occupational social security schemes’. Occupational social security schemes were first mentioned in the European Union Council document of 1 March 2000 (No 6434/00, p. 4(g) and in Article 5(b)). 27 – See the annex to the document of the Council of the European Union of 12 October 2000 (No 12270/00 ADD 1, p. 5). 28 – See in that regard the document of the Council of the European Union of 11 October 2000 (No 12270/00 ADD 1, p. 3) in which the United Kingdom refers to that discretion. 29 – See Odar, cited in footnote 2, paragraph 37. 30 – See my Opinion in Andersen, cited in footnote 2, points 42 to 47. 31 – Case C‑388/07 Age Concern England [2009] ECR I‑1569, paragraphs 47 and 48, and Case C‑238/05 Asnef-Equifax and Administración del Estado [2006] ECR I‑11125, paragraph 40 and the case-law cited. 32 – See Mangold cited in footnote 20 above, paragraph 63, and Palacios de la Villa, cited in footnote 2 above, paragraph 68. 33 – See Age Concern England cited in footnote 31 above, paragraphs 47 and 48; Case C‑88/08 Hütter [2009] ECR I‑5325, paragraph 41; and Case C‑447/09 Prigge and Others [2011] ECR I‑8003, paragraph 80 et seq. 34 – Palacios de la Villa (cited in footnote 2 above, paragraph 68); Mangold (cited in footnote 20 above, paragraph 63); Age Concern England (cited in footnote 31 above, paragraph 51); and Kücükdeveci, cited in footnote 20 above, paragraph 38; see to the same effect the 25th recital in the preamble to the Directive , which states that differences in treatment in connection with age ‘require specific provisions which may vary in accordance with the situation in the Member States’ (cited in Palacios de la Villa, cited in footnote 2 above, paragraph 69). 35 – Palacios de la Villa (cited in footnote 2 above, paragraph 72) and Petersen (cited in footnote 23 above, paragraph 70). 36 – See my Opinion in Andersen (cited in footnote 2 above, point 54). 37 – See paragraph 55 of this Opinion 38 – Age ConcernEngland, cited in footnote 31 above, paragraph 51 and the case-law cited. See also my Opinion in Andersen, cited in footnote 2 above, point 63 and in Case C‑19/02 Hlozek [2004] ECR I‑11491, point 59. 39 – See, also, my Opinions in Andersen (cited in footnote 2 above, point 62) and Hlozek (cited in footnote 38 above, points 57 and 58). 40 – See my Opinion in Andersen, cited in footnote 2 above, points 67 and 68, together with the judgments in Case 265/87 Schräder [1989] ECR 2237, paragraph 21; Joined Case C‑96/03 and C‑97/03 Tempelman and van Schaijk [2005] ECR I‑1895, paragraph 47; Joined Cases C‑379/08 and C‑380/08 ERG and Others [2010] ECR I‑2007, paragraph 68; and Andersen, cited in footnote 2 above, paragraph 47. 41 – DKK 860 at the time of the application before the national court was equivalent to approximately EUR 115.50.