The scope of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted, in the light of Article 3(1)(c) and Article 3(3) of that directive, read in conjunction with recital 13 in the preamble to the directive, as including pay within the meaning of Article 157(2) TFEU. Availability pay intended for civil servants dismissed on grounds of redundancy, which represents immediate consideration in cash, paid by the employer to the civil servants in respect of their employment, thus constitutes pay within the meaning of Article 157(2) TFEU and therefore falls within the scope of Directive 2000/78.

Since that provision allows Member States to provide for an exception to the principle of non-discrimination on grounds of age, it must be interpreted strictly. The wording of Article 6(2) and the purpose and general scheme of Directive 2000/78 support the conclusion that that provision is intended to apply only in the cases exhaustively listed.

Articles 2 and 6(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding a national provision under which a civil servant who has reached the age at which he is able to receive a retirement pension is denied, solely for that reason, entitlement to availability pay intended for civil servants dismissed on grounds of redundancy.

It is true that the aim of ensuring the availability of civil servants and their protection in the event of redundancy, while limiting entitlement to availability pay only to civil servants who require protection and who comply with their obligation to remain available, falls within the category of legitimate employment policy and labour market objectives provided for in Article 6(1) of Directive 2000/78. Moreover, to limit entitlement to availability pay solely to civil servants who are not entitled to a retirement pension does not seem to be either unreasonable in the light of the aim pursued by the legislature or manifestly inappropriate to achieve the legitimate objectives put forward. However, a national provision under which both civil servants who wish to retire and who will consequently receive a retirement pension and civil servants who wish to pursue their professional career within the public administration beyond the age of 65 are automatically excluded from receiving availability pay merely because they could, inter alia because of their age, draw such a pension, goes beyond what is necessary to ensure the objectives pursued. Such a measure may thus force civil servants who wish to remain in the labour market to accept a retirement pension which is lower than the pension to which they would be entitled if they were to remain in employment for more years.

Furthermore, the legitimate objectives pursued by that legislation may be attained by less restrictive, but equally appropriate, measures. Thus, provisions which limit entitlement to availability pay solely to civil servants who have temporarily waived their right to receive a retirement pension in order to continue employment, while providing, in cases where civil servants refuse to take up another suitable post, for measures to punish any abuse, ensure that only civil servants who are actually available to take up an alternative post are entitled to receive availability pay.

(see paras 51, 58, 66, 67, 69, 72, 74, operative part 2)