Case C-45/09

Gisela Rosenbladt

v

Oellerking Gebäudereinigungsges. mbH

(Reference for a preliminary ruling from the Arbeitsgericht Hamburg)

(Directive 2000/78/EC – Discrimination on the grounds of age – Termination of employment contract on reaching retirement age)

Summary of the Judgment

1. Preliminary rulings – Jurisdiction of the Court – Further reference on a question decided by the Court – Admissibility

(Art. 267 TFEU)

2. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on grounds of age

(Council Directive 2000/78, Art. 6(1))

3. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on grounds of age

(Council Directive 2000/78, Art. 6(1))

4. Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on grounds of age

(Council Directive 2000/78, Arts 1 and 2)

1. Article 267 TFEU always allows a national court, if it considers it desirable, to refer questions of interpretation to the Court again. Moreover, in proceedings under Article 267 TFEU, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling. That is so where the referring court raises the question of the compatibility with Directive 2000/78 of national legislation providing for a clause on automatic termination of the employment contracts of employees who have reached the age of 65 on the ground that they have become eligible to retire. A reference for a preliminary ruling as to whether such a clause is discriminatory is therefore admissible.

(see paras 31-32, 34-35)

2. Article 6(1) of Council Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that it does not preclude a national provision under which clauses on automatic termination of employment contracts on the ground that the employee has reached the age of retirement are considered to be valid, in so far as, first, that provision is objectively and reasonably justified by a legitimate aim relating to employment policy and the labour market and, second, the means of achieving that aim are appropriate and necessary. The implementation of that authorisation by means of a collective agreement is not, as such, exempt from any review by the courts but, in accordance with the requirements of Article 6(1) of that directive, must itself pursue such a legitimate aim in an appropriate and necessary manner.

First, given the broad discretion which the Member States enjoy 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, such clauses are objectively and reasonably justified since the termination of the employment contracts of employees who have reached retirement age directly benefits young workers by making it easier for them to find work, which is otherwise difficult at a time of chronic unemployment and the rights of older workers are, moreover, adequately protected. That mechanism which is based on the balance to be struck between political, economic, social, demographic and/or budgetary considerations and the choice to be made between prolonging people’s working lives or, conversely, providing for their early retirement.

Second, that mechanism, which is distinct from dismissal and resignation, has its basis in an agreement. That allows not only employees and employers, by means of individual agreements, but also the social partners, by means of collective agreements, – and therefore with considerable flexibility – to opt for application of that mechanism so that due account may be taken not only of the overall situation in the labour market concerned, but also of the specific features of the jobs in question. In the light of those considerations, it does not appear unreasonable for the authorities of a Member State to take the view that a measure such as the authorisation of clauses on automatic termination of employment contracts on the ground that an employee has reached the age at which he is eligible for a retirement pension may be appropriate and necessary in order to achieve legitimate aims in the context of national employment policy.

(see paras 41, 43-44, 49, 51, 53, operative part 1)

3. Article 6(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that it does not preclude a measure such as the automatic termination of employment contracts of employees who have reached retirement age, set at 65, provided for by a framework collective agreement for employees in the commercial cleaning sector.

First, by guaranteeing workers a certain stability of employment and, in the long term, the promise of foreseeable retirement, while offering employers a certain flexibility in the management of their staff, the clause on automatic termination of employment contracts is the reflection of a balance between diverging but legitimate interests, against a complex background of employment relationships closely linked to political choices in the area of retirement and employment.

Second, given that the employment law of the Member State concerned does not prevent a person who has reached the age at which he is eligible for payment of a pension from continuing to work and that a worker in that position continues to enjoy protection from discrimination on grounds of age, the termination by operation of law of an employment contract does not have the automatic effect of forcing the persons concerned to withdraw definitively from the labour market. That law does not, therefore, establish a mandatory scheme of automatic retirement. It does not prevent a worker who wishes to do so, for example, for financial reasons, from continuing to work beyond retirement age and does not deprive employees who have reached retirement age of protection from discrimination on grounds of age where they wish to continue to work and seek a new job. In the light of those arguments, the national legislation does not go beyond what is necessary to achieve the aims pursued, given the wide discretion granted to the Member States and the social partners in the area of social policy and employment.

(see paras 68, 74-77, operative part 2)

4. Articles 1 and 2 of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that they do not preclude a Member State from declaring a collective agreement containing a clause on the automatic termination of employment contracts for employees in the commercial cleaning sector to be of general application, provided that it does not deprive employees falling within the scope of that collective agreement of the protection from discrimination on grounds of age conferred on them by those provisions.

Directive 2000/78 does not, as such, govern the conditions under which the Member States may declare a collective agreement to be of general application, even if the Member States are required to ensure, by means of appropriate laws, regulations or administrative provisions, that all workers are able to enjoy fully the protection granted to them by Directive 2000/78 against discrimination on the grounds of age.

(see paras 79-80, operative part 3)

JUDGMENT OF THE COURT (Grand Chamber)

12 October 2010 ( )

(Directive 2000/78/EC – Discrimination on the grounds of age – Termination of employment contract on reaching retirement age)

In Case C‑45/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Arbeitsgericht Hamburg (Germany), made by decision of 20 January 2009, received at the Court on 2 February 2009, in the proceedings

Gisela Rosenbladt

v

Oellerking Gebäudereinigungsges. mbH,

THE COURT (Grand Chamber),

composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot and A. Arabadjiev, Presidents of Chambers, G. Arestis, A. Borg Barthet, M. Ilešič, J. Malenovský, L. Bay Larsen, P. Lindh (Rapporteur) and T. von Danwitz, Judges,

Advocate General: V. Trstenjak,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 23 February 2010,

after considering the observations submitted on behalf of:

– Mrs Rosenbladt, by K. Bertelsmann, Rechtsanwalt,

– Oellerking Gebäudereinigungsges. mbH, by P. Sonne, Rechtsanwalt,

– the German Government, by M. Lumma and J. Möller, acting as Agents,

– the Danish Government, by B. Weis Fogh, acting as Agent,

– Ireland, by D. O’Hagan, acting as Agent,

– the Italian Government, by I. Bruni, acting as Agent, assisted by W. Ferrante, avvocato dello Stato,

– the United Kingdom Government, by V. Jackson, acting as Agent, assisted by T. Ward, Barrister,

– the European Commission, by J. Enegren and V. Kreuschitz, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 28 April 2010,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of 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).

2 The reference was made in the course of proceedings brought by Mrs Rosenbladt against Oellerking Gebäudereinigungsges. mbH (‘Oellerking’) concerning the conditions for termination of her contract of employment.

Legal context

European Union legislation

3 Recital 25 in the preamble to Directive 2000/78 provides:

‘The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.’

4 According to Article 1 of Directive 2000/78, ‘[t]he purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’

5 Article 2 of Directive 2000/78, which is headed ‘Concept of discrimination’, provides:

‘1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

2. For the purposes of paragraph 1:

(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;

(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or

(ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.

…’

6 According to Article 6 of Directive 2000/78, which is headed ‘Justification of differences of treatment on grounds of age’:

‘1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

Such differences of treatment may include, among others:

(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

(b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

(c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.’

7 Article 16 of Directive 2000/78, which is headed ‘Compliance’, provides:

‘Member States shall take the necessary measures to ensure that:

(a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished;

(b) any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers’ and employers’ organisations are, or may be, declared null and void or are amended.’

National legislation

The General Law on equal treatment

8 Directive 2000/78 was transposed into German law by the General Law on equal treatment (Allgemeines Gleichbehandlungsgesetz) of 14 August 2006 (BGBl. 2006 I, p. 1897, ‘the AGG’). That law provides, in Paragraph 1, headed ‘Object of the Law’:

‘The object of this law is to prevent or eliminate any discrimination on grounds of race, ethnic origin, sex, religion or belief, disability, age or sexual identity.’

9 Paragraph 2 of the AGG, headed ‘Scope’, provides:

‘(1) Discrimination on one of the grounds listed in Paragraph 1 is prohibited under this Law as regards:

…

2. Conditions of employment, including remuneration and conditions for dismissal and those appearing in collective agreements and individual employment contracts, in particular, and measures taken during the course and on cessation of an employment relationship and in the case of career advancement.

…

(4) The provisions on general and specific protection against dismissal apply exclusively to dismissals.

…’

10 Under Paragraph 7 of the AGG, headed ‘Prohibition of discrimination’:

‘(1) Employees may not be discriminated against on one of the grounds given in Paragraph 1; this applies equally where the person responsible for the discrimination merely assumes, when exercising the discrimination, that one of the grounds given in Paragraph 1 exists.

…’

11 Paragraph 10 of the AGG, headed ‘Permissible difference of treatment on grounds of age’, provides:

‘1. Paragraph 8 notwithstanding, a difference of treatment on grounds of age is also permissible if it is objective and reasonable and justified by a legitimate aim. The means of achieving that aim must be appropriate and necessary. Such differences of treatment may include in particular the following:

…

5. An agreement which provides for the termination of the employment relationship without notice of termination at a date when the employee may claim an old-age pension; this shall be without prejudice to Paragraph 41 of the SGB VI …’

12 During the period from 18 August to 11 December 2006, Paragraph 10 of the AGG included the following among the differences in treatment on grounds of age which could be permitted:

‘7. An individual or collective agreement on protection from dismissal for employees of a certain age and with a certain length of service, provided that it does not seriously and grossly reduce the protection of other employees against dismissal through the application of social criteria under Paragraph 1(3) of the Kündigungsschutzgesetz (Law on protection against dismissal).’

The Social Security Code

13 Paragraph 41(4) of Book VI of the Sozialgesetzbuch (German Social Security Code, ‘SGB VI’), in the version applicable between 1 January 1992 and 31 July 1994, read as follows:

‘The right of the insured person to a retirement pension on grounds of age may not be considered to be a ground giving rise to termination of an employment relationship by an employer under the Law on protection against dismissal. In the event of dismissal because of serious constraints affecting the company, the right of an employee to a retirement pension on grounds of age may not be taken into consideration, where the decision is made on the basis of social criteria, before he has reached the age of 65. An agreement under which an employment relationship is intended to end at a date when the employee has an entitlement to an old-age pension shall be effective only if the agreement was concluded or confirmed by the employee within the last three years prior to that date.’

14 On the basis of that provision, the case-law of the German courts has held clauses of collective agreements providing for the automatic termination of the employment contract of an employee who has reached the age of 65 to be null and void (judgment of the Bundesarbeitsgericht (Federal Labour Court) of 1 December 1993 – 7 AZR 428/93 – BAGE 75, 166).

15 Subsequently, the legislature intervened in order to prevent age limits laid down by collective agreement from being held invalid in accordance with that case-law. Accordingly, during the period from 1 August 1994 to 31 July 2007, the third sentence of Paragraph 41(4) of the SGB VI was worded as follows:

‘An agreement which provides for the termination of an employee’s employment relationship without notice of termination at a date when the employee may claim an old-age pension before reaching the age of 65 years shall be deemed, vis-à-vis the employee, to have been concluded on reaching the age of 65, unless the agreement was concluded or confirmed by the employee within the last three years prior to that date.’

16 Since 1 January 2008, Paragraph 41 of the SGB VI has been worded as follows:

‘Retirement pension and protection from dismissal

The right of the insured person to a retirement pension on grounds of age may not be considered to be a ground giving rise to termination of an employment relationship by an employer under the Law on protection against dismissal. An agreement which provides for the termination of an employee’s employment relationship without notice of termination at a date when the employee may claim an old-age pension before reaching the standard retirement age shall be deemed, vis-à-vis the employee, to have been concluded on reaching the standard retirement age, unless the agreement was concluded within the last three years prior to that date or was confirmed by the employee within the last three years prior to that date.’

The Law on collective agreements

17 During the period from 28 November 2003 to 7 November 2006, Paragraph 5 of the Law on collective agreements (Tarifvertragsgesetz BGBl. 1969 I, p. 1323), headed ‘General applicability’, was worded as follows:

‘(1) The Minister for the Economy and Employment may, at the request of a party to a collective agreement and in consultation with a committee made up of three representatives of national employers’ organisations and three representatives of trades union organisations, declare a collective agreement to be of general application, if

1. the employers bound by that agreement employ no less than 50% of the employees falling within the scope of the collective agreement and if

2. the declaration of general application appears to be in the general interest.

The conditions set out in points 1 and 2 may be disregarded if the declaration of general applicability appears necessary to remedy social hardship.

…’

The framework collective agreement for employees in the commercial cleaning sector

18 Since 1987, Paragraph 19(8) of the framework collective agreement for employees in the commercial cleaning sector (Allgemeingültiger Rahmentarifvertrag für die gewerblichen Beschäftigten in der Gebäudereinigung, ‘the RTV’) provides:

‘Save as otherwise provided in the employment contract, the employment relationship shall end at the end of the calendar month in which the employee may claim a retirement pension, … at the latest, at the end of the month in which the employee reaches the age of 65.’

19 By notice published on 3 April 2004, the RTV was declared by the Minister of the Economy and Employment to be generally applicable with effect from 1 January 2004.

The dispute in the main proceedings and the questions referred for a preliminary ruling

20 For 39 years Mrs Rosenbladt worked as a cleaner in a barracks in Hamburg-Blankenese (Germany).

21 From 1 November 1994 Mrs Rosenbladt was employed by Oellerking, a cleaning firm, under a part-time employment contract (2 hours a day, 10 hours a week) with a gross monthly salary of EUR 307.48.

22 That contract provides that, in accordance with Paragraph 19(8) of the RTV, it is to end at the end of the calendar month in which the employee may claim a retirement pension, or, at the latest, at the end of the month in which the employee reaches the age of 65.

23 In accordance with that clause, on 14 May 2008 Oellerking gave Mrs Rosenbladt notice of the termination of her employment contract, with effect from 31 May 2008, on the ground that she had reached retirement age.

24 By letter of 18 May 2008, Mrs Rosenbladt informed her employer that she intended to continue working. Despite her objection, Mrs Rosenbladt’s employment contract ceased to have effect on 31 May 2008. However, Oellerking offered her a new employment contract from 1 June 2008 for the duration of the proceedings in the main action.

25 On 28 May 2008, Mrs Rosenbladt brought an action against her employer before the Arbeitsgericht Hamburg (Hamburg Labour Court). She claims that the termination of her employment contract was unlawful as it constituted discrimination on the grounds of age. She argues that an age limit like that laid down in Article 19(8) of the RTV cannot be justified either under Article 4 of Directive 2000/78 or under Article 6 thereof.

26 Since 1 June 2008, Mrs Rosenbladt has been receiving a statutory old-age pension of EUR 253.19 per month, or EUR 228.26 net.

27 The referring court has doubts regarding the consistency of the clause on automatic termination of employment contracts laid down in Paragraph 19(8) of the RTV with the principle of equal treatment in employment and occupation enshrined in the primary law of the Union and in Directive 2000/78.

28 In those circumstances, the Arbeitsgericht Hamburg decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

‘(1) Following the entry into force of the [AGG] are the rules of a collective agreement, which discriminate on the basis of age, without the AGG expressly permitting this (as it did previously in Paragraph 10(7)), compatible with the prohibition of age discrimination set out in Article 1 and Article 2(1) of [Directive 2000/78]?

(2) Does national legislation that permits the State, the parties to a collective agreement and the parties to an individual employment contract to provide for the automatic termination of an employment relationship upon reaching a specific fixed age (in this case: 65), contravene the prohibition of age discrimination laid down in Article 1 and Article 2(1) of [Directive 2000/78] if, according to established practice in place for several decades in the Member State, clauses of this type have consistently applied to the employment relationships of nearly all workers, regardless of the economic, social and demographic situation and the situation actually prevailing on the employment market?

(3) Does a collective agreement that permits an employer to end an employment relationship at a specific fixed age (in this case: 65), contravene the prohibition of age discrimination laid down in Article 1 and Article 2(1) of [Directive 2000/78] if, according to established practice in place for several decades in the Member State, clauses of this type have consistently applied to the employment relationships of nearly all workers, regardless of the economic, social and demographic situation and the situation actually prevailing on the employment market?

(4) Does a State that declares a collective agreement permitting employers to end employment relationships at a specific fixed age (65) to be generally applicable and upholds this general applicability contravene the prohibition of age discrimination laid down in Article 1 and Article 2(1) of [Directive 2000/78], where it does so regardless of the economic, social and demographic situation and of the situation actually prevailing on the employment market?’

The questions referred

Admissibility

29 Ireland submits that the questions referred are materially identical to those the Court answered in its judgment in Case C-388/07 Age Concern England [2009] ECR I‑1569. Moreover, the second to fourth questions concern not so much the interpretation of European Union (EU) law as its application. The Court should therefore decline jurisdiction.

30 Both the parties to the main proceedings and the German Government dispute the admissibility of the first question. They argue, in essence, that the referring court cited a provision of the AGG which is not applicable to the dispute in the main proceedings, thereby depriving that question of relevance.

31 Those arguments are not founded. Apart from the fact that the questions that gave rise to the answers in Age Concern England are not identical to those raised in the present case, it must be borne in mind that Article 267 TFEU always allows a national court, if it considers it desirable, to refer questions of interpretation to the Court again (see Joined Cases 28/62 to 30/62 Da Costa en Schaake [1963] ECR 31, 38). Moreover, it is clear from the terms of the reference for a preliminary ruling that the referring court seeks an interpretation of EU law to enable it to deliver judgment in the main proceedings.

32 Furthermore, it should be recalled that, in proceedings under Article 267 TFEU, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑119/05 Lucchini [2007] ECR I‑6199, paragraph 43, and Case C‑414/07 Magoora [2008] ECR I‑10921, paragraph 22).

33 According to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑4233, paragraph 22 and the case-law cited).

34 In the present case, the main proceedings concern the question whether the clause contained in Paragraph 19(8) of the RTV on automatic termination of the employment contracts of employees who have reached the age of 65 on the ground that they have become eligible to retire is discriminatory. The referring court raises the question, in particular, of the compatibility of such a rule with Directive 2000/78. The questions referred are sufficiently precise to allow the Court to answer them effectively.

35 Therefore, the reference for a preliminary ruling must be considered to be admissible.

Substance

The second question

36 By its second question, which it is appropriate to consider first, the referring court essentially seeks to know whether Article 6(1) of Directive 2000/78 must be interpreted as meaning that it precludes a national provision such as that in Paragraph 10(5) of the AGG, in so far as that provision provides that clauses on automatic termination of employment contracts on the ground that an employee has reached the age at which he is eligible to retire, may escape the prohibition on discrimination on the grounds of age.

37 As a preliminary point, it must be found that Paragraph 10(5) of the AGG provides for a difference in treatment directly based on age, as referred to in Article 2(2)(a) of Directive 2000/78 (see, to that effect, Case C‑411/05 Palacios de la Villa [2007] ECR I‑8531, point 51).

38 The first subparagraph of Article 6(1) of Directive 2000/78 states that a difference of treatment on grounds of age does not constitute discrimination if, within the context of national law, it is objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary. The second subparagraph of Article 6(2) lists several examples of differences of treatment with characteristics of the sort referred to in the first subparagraph.

39 Paragraph 10 of the AGG essentially incorporates those principles. Point 5 of that provision includes, among the examples of differences in treatment on the grounds of age which may be justified, agreements providing for termination of the employment relationship without notice of termination at a date when the worker may claim a retirement pension because of his age. Such a measure thus does not establish a regime of compulsory retirement but allows employers and employees to agree, by individual or collective agreements, on a means, other than resignation or dismissal, of ending employment relationships on the basis of the age of eligibility for a retirement pension.

40 Article 6(1)(a) of Directive 2000/78 does not include clauses on automatic termination of employment contracts among those appearing on the list of differences of treatment on the grounds of age which may be justified and, for that reason, may be considered not to be discriminatory. However, that fact alone is not decisive as the list is merely a guide. Thus, when the Member States implement the directive, they are not obliged to draw up a specific list of differences in treatment which may be justified by a legitimate aim (Age Concern England, paragraph 43). If, in the exercise of their discretion, they decide to do so, they may include in that list examples of differences in treatment and aims other than those expressly covered by the directive, provided that those aims are legitimate within the meaning of Article 6(1) thereof and are appropriate and necessary to achieve those aims.

41 It should be recalled in this context that 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 (see Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 63, and Palacios de la Villa, paragraph 68).

42 According to the explanations given by the referring court, it was not the intention of the legislature, when adopting Paragraph 10(5) of the AGG, to call into question, in the name of combating discrimination on the grounds of age, the existing situation, in which clauses on automatic termination of employment contracts when an employee reaches retirement age are widely used. It highlights the fact that such clauses have often been used for decades, regardless of social and demographic conditions and of the situation on the employment market.

43 In the proceedings before the Court of Justice, the German Government observed, inter alia, that the lawfulness of clauses on automatic termination of employment contracts of employees who have reached retirement age, which is also acknowledged in a number of other Member States, is the reflection of a political and social consensus which has endured for many years in Germany. That consensus is based primarily on the notion of sharing employment between the generations. The termination of the employment contracts of those employees directly benefits young workers by making it easier for them to find work, which is otherwise difficult at a time of chronic unemployment. The rights of older workers are, moreover, adequately protected as most of them wish to stop working as soon as they are able to retire, and the pension they receive serves as a replacement income once they lose their salary. The automatic termination of employment contracts also has the advantage of not requiring employers to dismiss employees on the ground that they are no longer capable of working, which may be humiliating for those who have reached an advanced age.

44 It must be observed that the automatic termination of the employment contracts of employees who meet the conditions as regards age and contributions paid for the liquidation of their pension rights has, for a long time, been a feature of employment law in many Member States and is widely used in employment relationships. It is a mechanism which is based on the balance to be struck between political, economic, social, demographic and/or budgetary considerations and the choice to be made between prolonging people’s working lives or, conversely, providing for early retirement (see, to that effect, Palacios de la Villa, paragraph 69).

45 Therefore, aims such as those described by the German Government must, in principle, be regarded as ‘objectively and reasonably’ justifying ‘within the context of national law’, as provided for by Article 6(1) of Directive 2000/78, a difference in treatment on grounds of age such as that provided for by Paragraph 10(5) of the AGG.

46 It remains to be determined whether such a measure is appropriate and necessary within the meaning of Article 6(1) of Directive 2000/78.

47 The authorisation of clauses on automatic termination of employment contracts on the ground that an employee has reached retirement age cannot, generally, be regarded as unduly prejudicing the legitimate interests of the workers concerned.

48 Legislation such as that at issue in the main proceedings is not based only on a specific age, but also takes account of the fact that the persons concerned are entitled to financial compensation by means of a replacement income in the form of a retirement pension at the end of their working life (see, to that effect, Palacios de la Villa, paragraph 73).

49 Moreover, the mechanism of automatic termination of employment contracts provided for by a measure such as that in Paragraph 10(5) of the AGG does not authorise employers to terminate an employment relationship unilaterally when workers reach the age at which they are eligible for payment of a pension. That mechanism, which is distinct from dismissal and resignation, has its basis in an agreement. That allows not only employees and employers, by means of individual agreements, but also the social partners, by means of collective agreements, – and therefore with considerable flexibility – to opt for application of that mechanism so that due account may be taken not only of the overall situation in the labour market concerned, but also of the specific features of the jobs in question (Palacios de la Villa, paragraph 74).

50 The legislation at issue in the main proceedings contains, in addition, a further limitation intended to ensure the consent of employees where clauses on automatic termination of employment contracts may be applied before normal retirement age. Paragraph 10(5) of the AGG authorises clauses on automatic termination of employment contracts for employees who have reached the age at which they become eligible for a retirement pension, ‘without prejudice to Paragraph 41 of the SGB VI’. That provision essentially requires employers to obtain or confirm the consent of workers to any clause on automatic termination of an employment contract on the ground that the employee has reached the age at which he is eligible for a pension, where that age is less than the normal retirement age.

51 In the light of those considerations, it does not appear unreasonable for the authorities of a Member State to take the view that a measure such as the authorisation of clauses on automatic termination of employment contracts on the ground that an employee has reached the age at which he is eligible for a retirement pension, provided for by Paragraph 10(5) of the AGG, may be appropriate and necessary in order to achieve legitimate aims in the context of national employment policy, such as those described by the German Government (see, to that effect, Palacios de la Villa, paragraph 72).

52 That conclusion does not, however, mean that such clauses in a collective agreement are exempt from any effective review by the courts in the light of the provisions of Directive 2000/78 and of the principle of equal treatment. Such review is exercised according to the specific features of the clause being examined. It must be ensured, in respect of each agreement providing for a mechanism for automatic termination of an employment relationship, that the conditions laid down in the first subparagraph of Article 6(1) of that directive, inter alia, are fulfilled. Moreover, Article 16(b) of that directive expressly requires the Member States to take the measures necessary to ensure that ‘any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements … are, or may be, declared null and void or are amended’.

53 Consequently, the answer to the second question is that Article 6(1) of Directive 2000/78 must be interpreted as meaning that it does not preclude a national provision such as Paragraph 10(5) of the AGG, under which clauses on automatic termination of employment contracts on the ground that the employee has reached the age of retirement are considered to be valid, in so far as, first, that provision is objectively and reasonably justified by a legitimate aim relating to employment policy and the labour market and, second, the means of achieving that aim are appropriate and necessary. The implementation of that authorisation by means of a collective agreement is not, as such, exempt from any review by the courts but, in accordance with the requirements of Article 6(1) of that directive, must itself pursue a legitimate aim in an appropriate and necessary manner.

The first and third questions

54 By its first and third questions, which it is appropriate to consider together, the referring court asks, essentially, whether Article 6(1) of Directive 2000/78 precludes the clause on automatic termination of employment contracts laid down by Paragraph 19(8) of the RTV, where an employee has reached retirement age, which is set at 65.

55 The answer to that question turns on whether, first, that measure meets a legitimate aim and, second, whether it is appropriate and necessary within the meaning of Article 6(1) of Directive 2000/78.

56 The referring court explains that, in a judgment of 18 June 2008, the Bundesarbeitsgericht (7 AZR 116/07) held that provision of the RTV to be compatible with Article 6(1) of Directive 2000/78. However it doubts that that solution could be transferred by analogy to the situation at issue in the main proceedings, in so far as that situation post-dates the entry into force of the AGG.

57 The referring court points out that the aims pursued are not specified in the collective agreement at issue in the main proceedings.

58 Where the national legislation in question does not specify the aim pursued, it is important that other elements, taken from the general context of the measure concerned, enable the underlying aim of that measure to be identified for the purposes of review by the courts of whether it is legitimate and whether the means put in place to achieve it are appropriate and necessary (see Palacios de la Villa, paragraph 57, and Age Concern England, paragraph 45).

59 In that connection, the referring court points out that, according to the body representing the interests of the employers in the negotiations on the RTV, Paragraph 19(8) of that collective agreement was intended to give priority to appropriate and foreseeable planning of personnel and recruitment management over the interest of employees in maintaining their financial position.

60 That court also cited the abovementioned judgment of the Bundesarbeitsgericht of 18 June 2008, in which it was made clear that Paragraph 19(8) of the RTV had the aims of facilitating employment for young people, planning recruitment and allowing good management of a firm’s personnel, in a balanced manner according to age.

61 It is therefore appropriate to examine whether those aims may be considered legitimate within the meaning of Article 6(1) of Directive 2000/78.

62 The Court has held that clauses on automatic termination of employment contracts of employees who are eligible to receive a retirement pension may be justified in the context of a national policy seeking to promote better access to employment, by means of better distribution of work between the generations, and, aims of that kind must, in principle, be considered to justify ‘objectively and reasonably’, ‘within the context of national law’, as provided in the first subparagraph of Article 6(1) of Directive 2000/78, a difference in treatment on the ground of age prescribed by Member States (see, to that effect, Palacios de la Villa, paragraphs 53, 65 and 66). It follows that objectives such as those described by the referring court are ‘legitimate’ within the meaning of that provision.

63 Accordingly, it is also necessary to ascertain whether the means used to achieve that aim are ‘appropriate and necessary’.

64 As regards, first, the appropriateness of the clause on the automatic termination of employment of employment contracts under the RTV, the referring court takes the view that, because they are ineffective, clauses of that type do not achieve the aims pursued.

65 As regards the aim relating to the promotion of employment, that court states that clauses on automatic termination of the employment contracts of employees who have reached the age of 65 have been in widespread use for a long time, without, however, having any effect on the level of employment in Germany. Moreover, it observes that Paragraph 19(8) of the RTV does not prohibit an employer from employing people over 65 any more than it requires an employer to replace an employee who has reached the age of 65 with a younger worker.

66 As regards the aim of ensuring a sound structure of the age pyramid in the cleaning sector, the referring court doubts its relevance given that there is no particular risk of an ageing workforce in that sector.

67 In the light of the assessment made by the referring court, it must be observed that the clause on the automatic termination of employment contracts at issue in the main proceedings is the result of an agreement negotiated between employees’ and employers’ representatives exercising their right to bargain collectively which is recognised as a fundamental right (Case C‑271/08 Commission v Germany [2010] ECR I-0000, paragraph 37). The fact that the task of striking a balance between their respective interests is entrusted to the social partners offers considerable flexibility, as each of the parties may, where appropriate, opt not to adopt the agreement (see, to that effect, Palacios de la Villa, paragraph 74).

68 By guaranteeing workers a certain stability of employment and, in the long term, the promise of foreseeable retirement, while offering employers a certain flexibility in the management of their staff, the clause on automatic termination of employment contracts is thus the reflection of a balance between diverging but legitimate interests, against a complex background of employment relationships closely linked to political choices in the area of retirement and employment.

69 Accordingly, in the light of the wide discretion granted to the social partners at national level in choosing not only to pursue a given aim in the area of social policy, but also in defining measures to implement it, it does not appear unreasonable for the social partners to take the view that a measure such as Paragraph 19(8) of the RTV may be appropriate for achieving the aims set out above.

70 Secondly, the referring court raises the question whether a clause on the automatic termination of employment contracts, such as that provided for by Paragraph 19(8) of the RTV is necessary.

71 First, the automatic termination of employment contacts causes significant financial hardship to workers in the commercial cleaning sector in general and to Mrs Rosenbladt in particular. As poorly paid part-time employment is a typical feature of this sector, the statutory old-age pension is not sufficient to meet the basic needs of workers.

72 Second, there are less onerous measures than the automatic termination of employment contracts. For instance, as regards the employers’ interest in planning their personnel management policy, the referring court observes that they need only ask their employees whether they plan to work beyond retirement age.

73 In order to examine whether the measure at issue in the main proceedings goes beyond what is necessary for achieving its objective and unduly prejudices the interests of workers who reach the age of 65, when they may obtain liquidation of their pension rights, that measure must be viewed against its legislative background and account must be taken both of the hardship it may cause to the persons concerned and of the benefits derived from it by society in general and the individuals who make up society.

74 According to the explanations given by the referring court and the observations submitted to the Court of Justice, German employment law does not prevent a person who has reached the age at which he is eligible for payment of a pension from continuing to work. Furthermore, according to those explanations, a worker in that position continues to enjoy protection from discrimination on grounds of age under the AGG. The referring court made clear, in that connection, that the AGG prevents a person in Mrs Rosenbladt’s position, after termination of her employment contract on the ground that she has reached retirement age, from being refused employment, either by her former employer or by a third party, on a ground related to her age.

75 Viewed against that background, the termination by operation of law of an employment contract as a result of a measure such as Paragraph 19(8) of the RTV does not have the automatic effect of forcing the persons concerned to withdraw definitively from the labour market. It follows that that provision does not establish a mandatory scheme of automatic retirement (see, to that effect, Age Concern England, paragraph 27). It does not prevent a worker who wishes to do so, for example, for financial reasons, from continuing to work beyond retirement age. It does not deprive employees who have reached retirement age of protection from discrimination on grounds of age where they wish to continue to work and seek a new job.

76 In the light of those arguments, it must be held that a measure such as Paragraph 19(8) of the RTV does not go beyond what is necessary to achieve the aims pursued, given the wide discretion granted to the Member States and the social partners in the area of social policy and employment.

77 Consequently, the answer to the first and third questions is that Article 6(1) of Directive 2000/78 must be interpreted as meaning that it does not preclude a measure such as the automatic termination of employment contracts of employees who have reached retirement age, set at 65, provided for by Paragraph 19(8) of the RTV.

The fourth question

78 By its fourth question, the referring court seeks to know whether the principle of the prohibition of discrimination on grounds of age, as set out in Articles 1 and 2 of Directive 2000/78, precludes a Member State from declaring a collective agreement containing a clause on the automatic termination of employment contracts, like that appearing in Paragraph 19(8) of the RTV, to be of general application, without taking account of the economic, social and demographic situation and the situation on the employment market.

79 Directive 2000/78 does not, as such, govern the conditions under which the Member States may declare a collective agreement to be of general application. However, the Member States are required to ensure, by means of appropriate laws, regulations or administrative provisions, that all workers are able to enjoy fully the protection granted to them by Directive 2000/78 against discrimination on the grounds of age. Article 16(b) of the directive requires Member States to take the necessary measures to ensure that ‘any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements … are, or may be, declared null and void or are amended’. As long as a collective agreement is not contrary to Articles 1 and 2 of Directive 2000/78 the Member State concerned is free to make it compulsory for persons who are not bound as parties to the agreement (see, by analogy, Case C-67/96 Albany [1999] ECR I-5751, paragraph 66).

80 In the light of those considerations, the answer to the fourth question is that Articles 1 and 2 of Directive 2000/78 must be interpreted as meaning that they do not preclude a Member State from declaring a collective agreement containing a clause on the automatic termination of employment contracts, like that at issue in the main proceedings, to be of general application, provided that it does not deprive employees who have reached retirement age of the protection from discrimination on grounds of age conferred on them by those provisions.

Costs

81 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Grand Chamber) hereby rules:

1. Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that it does not preclude a national provision such as Paragraph 10(5) of the General Law on equal treatment (Allgemeines Gleichbehandlungsgesetz), under which clauses on automatic termination of employment contracts on the ground that the employee has reached the age of retirement are considered to be valid, in so far as, first, that provision is objectively and reasonably justified by a legitimate aim relating to employment policy and the labour market and, second, the means of achieving that aim are appropriate and necessary. The implementation of that authorisation by means of a collective agreement is not, as such, exempt from any review by the courts but, in accordance with the requirements of Article 6(1) of that directive, must itself pursue a legitimate aim in an appropriate and necessary manner.

2. Article 6(1) of Directive 2000/78 must be interpreted as meaning that it does not preclude a measure such as the automatic termination of employment contracts of employees who have reached retirement age, set at 65, provided for by Paragraph 19(8) of the framework collective agreement for employees in the commercial cleaning sector (Allgemeingültiger Rahmentarifvertrag für die gewerblichen Beschäftigten in der Gebäudereinigung).

3. Articles 1 and 2 of Directive 2000/78 must be interpreted as meaning that they do not preclude a Member State from declaring a collective agreement containing a clause on the automatic termination of employment contracts, like that at issue in the main proceedings, to be of general application, provided that it does not deprive employees who have reached retirement age of the protection from discrimination on grounds of age conferred on them by those provisions.

[Signatures]