Source: EURLEX
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# 52014SC0005

**COMMISSION STAFF WORKING DOCUMENT Annexes to the Joint Report on the application of the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC) /\* SWD/2014/05 final \*/**

  

Annex I: Know your rights — Guidance to
victims of discrimination

This
guidance informs victims of discrimination of their rights under the EU
anti-discrimination directives and explains how they can assert their rights in
discrimination cases.[1]

The
prohibition of discrimination is one of the fundamental principles of the
European Union. However, the EU can adopt legislation against discrimination
only on grounds of sex, racial or ethnic origin, religion or belief,
disability, age or sexual orientation.

As
EU law provides only a minimum level of protection, most Member States
provide wider protection against discrimination under their national
legislation. Please check your rights under national law (see ‘Useful links’
below). However, neither EU law nor national law provides legal protection
against every possible form of discrimination.

On grounds of racial or ethnic origin, EU law: - prohibits discrimination in a wide area covering employment, education, social protection (including social security and healthcare), social advantages and access to and supply of goods and services available to the public (including housing); - requires the Member States to set up national equality bodies to assist victims of discrimination. || On grounds of religion or belief, disability, age and sexual orientation, EU law: - prohibits discrimination only in the field of employment, occupation and vocational training; - requires employers to provide reasonable accommodation to disabled persons; - allows differential treatment on certain grounds (age and religion or belief) but only on certain strict conditions. ||

Both the Racial Equality and Employment Equality Directives: - prohibit various forms of discrimination: direct and indirect discrimination, harassment, instruction to discriminate and victimisation; - ensure that when victims of discrimination have established in court facts on the basis of which it may be deemed that there has been discrimination, it is then for the other party to prove that there has been no discrimination;  - require Member States to provide effective sanctions and remedies against discrimination; - require Member States to provide information to victims of discrimination on their rights under these directives.

1.
Which grounds of discrimination are prohibited under the EU’s
anti-discrimination legislation?

Racial
or ethnic origin: the Racial Equality Directive
prohibits discrimination on grounds of racial or ethnic origin.

Religion
or belief, disability, age or sexual orientation:
the Employment Equality Directive prohibits discrimination on grounds of
religion or belief, disability, age or sexual orientation.

Sex:
Discrimination on grounds of sex is prohibited under Equal Treatment Directives
2004/113/EC and 2006/54/EC in employment and access to goods and services.

Nationality:
EU citizens and their family members are protected from discrimination on
grounds of nationality under the EU Treaties and within the scope of EU law, in
areas such as the free movement of persons and services. Rights to equal
treatment of certain categories of  third-country nationals are protected on
specific conditions under Directive 2003/109/EC (Long-term residents) and a
number of other Directives.

2.
What if I am discriminated against on other grounds?

You
may still be protected from discrimination under national law, so please check
whether your national law offers protection in your particular case. Many
Member States provide protection from discrimination on other grounds such as
political opinion, marital status, birth, social origin, property, health or
physical characteristics.

Article
21 of the Charter of Fundamental Rights of the European Union also prohibits
discrimination on grounds such as social origin, language, political or other
opinion, property and birth. However, while the Charter is binding on EU
institutions, it applies to Member States only when they are implementing EU
law.

3.
In which areas of life am I protected from discrimination under the EU’s anti‑discrimination
directives?

You
are protected from racial or ethnic discrimination in employment,
occupation and vocational training, social protection (including social
security and healthcare), social advantages, education and access to and supply
of goods and services which are available to the public, including housing or
financial services.

Discrimination
based on religion or belief, disability, age or sexual orientation is only
prohibited in respect of employment, occupation and vocational training.

Under
the EU equal treatment directives, you are also protected from discrimination
on grounds of sex in employment, occupation and vocational training as well as
in access to and supply of goods and services.

Please
check the protection provided under your national law, which is sometimes wider
than that provided under EU law. Many Member States also ban discrimination on
the grounds of religion or belief, disability, age or sexual orientation
outside the area of employment.

Know your rights — in employment Discrimination is prohibited in all areas of employment, starting at the job application stage. Job advertising must not give the impression that certain groups may be excluded because of their age, racial origin or other protected characteristics. You are entitled to equal treatment in areas such as recruitment, working conditions, promotion, pay, access to vocational training and dismissal.

Know your rights — in services Discrimination on grounds of racial or ethnic origin is prohibited in services available to the public, whether in the public or private sector. You can’t be refused access to a restaurant, bar, fitness club, hotel, etc. on the basis of your racial or ethnic origin (e.g. you are Roma or black). Note that certain actions by the public authorities (e.g. the police) are not ‘services’ under EU law and so do not fall under the Racial Equality Directive. Other services not made ‘available to the public’ are also exempt (e.g. an elderly lady wishing to rent out a room in her own house is not obliged to advertise in a newspaper, but may look for a tenant in the limited circle of her family and acquaintances).

4.
What type of discrimination is prohibited?

Both
directives prohibit discrimination in different forms, including direct and
indirect discrimination, harassment, instructions to discriminate and
victimisation.

Direct
discrimination is when a person is treated less favourably than
others on any of the grounds covered by EU law. For example, a refusal to
recruit you because you are Muslim, Jewish, black or are over 35 years old; a
refusal to admit your child to a school because you are Roma; dismissal when an
employer in economic difficulties needs to reduce staff and chooses only those
aged over 50, or an estate agent’s refusal to rent to you because of your skin
colour.

Indirect
discrimination occurs where a seemingly neutral provision,
criterion or practice still puts you at a particular disadvantage compared to
others because you are, for example, older, disabled or homosexual. This
concerns measures which may look neutral and unproblematic at first sight but
nevertheless have a discriminatory effect on a particular group of people. An
employer’s refusal to hire persons who cover their head or face may appear
neutral, but it will mainly affect Muslims and may therefore qualify as
indirect discrimination based on religion or belief. It does not
matter whether the discrimination was intentional or not. Often statistical
information is useful to demonstrate indirect discrimination: for example when
considering whether rules that are unfavourable for part-time workers
indirectly discriminate against women, the fact that most part-time workers are
women must be borne in mind.

Indirect
discrimination may be justified in some situations if it has a legitimate aim
and the means of achieving that aim are appropriate and necessary. This needs
to be assessed on a case-by-case basis.

Harassment is
unwanted conduct violating dignity or creating an intimidating, hostile,
degrading, humiliating or offensive environment. For example, you are
homosexual and your boss and colleagues regularly tell homophobic jokes and
exchange homophobic e-mails.

Instruction
to discriminate is also a form of discrimination. For example, a
nightclub owner who instructs his staff to refuse entrance to people of a
particular racial or ethnic group or an employer who asks a temporary work
agency only to send workers aged under 40.

Victimisation
occurs
if you suffer negative consequences in reaction to your complaint
about discrimination. For example, you are dismissed or refused promotion
because you have filed a discrimination complaint against your boss or have
testified as a witness in a discrimination case.

Know your rights — prohibition of indirect discrimination: Many seemingly neutral requirements or measures may be indirect discrimination if they affect specific groups such as older or disabled workers or persons of a particular religion. A requirement that workers carry out a job by bicycle would exclude many disabled applicants, and unrealistic language skill requirements or unjustified dress codes might exclude many applicants from ethnic minorities.

5.
Are there situations in which different treatment on the basis of the protected
grounds is allowed?

Yes,
EU law allows for certain exceptions to the general prohibition.

There
is a general exception in employment where a specific requirement is
indispensable for a certain professional activity. For example a casting
director may seek for an actor of a particular racial origin for a role in a
film. Likewise, priests can legitimately be required to adhere to the faith of
their religious communities. However, this exception does not cover employees
of churches or other religious organisations (such as cleaners or gardeners)
whose religion or belief is not directly relevant to their activities.

Member
States may also allow different treatment on grounds of age if this is
appropriate and necessary to achieve legitimate employment and labour market
objectives. For example, under certain conditions, Member States may specify a
certain age at which employees have to retire in order to promote
intergenerational solidarity and facilitate access to the labour market for
younger workers.

EU
law specifically allows (but does not oblige) Member States to prevent or
compensate for disadvantages faced by a specific group under any of the
protected grounds. This is known as ‘positive action’; your country may, for
example, have decided to set targets for public sector employers to employ
persons with disabilities.

Most
Member States have taken up the option under EU law of creating special rules
for the armed forces to allow different treatment on grounds of age and
disability.

6.
Does everyone in the EU have to respect the prohibition of discrimination?

Yes,
the prohibition is binding on everyone, i.e. individuals, legal persons and
large and small organisations and companies in both the public and private
sectors.

7.
Is everyone in the EU protected from discrimination?

Yes,
in principle, the anti-discrimination directives protect everyone in the EU and
not only EU citizens. However, the
protection of non-EU citizens only covers discrimination on grounds of racial
or ethnic origin, religion or belief, disability, age
or sexual orientation (and sex under the gender equality directives).
It does not cover differences of treatment resulting from the fact that a
person is not an EU citizen.

Immigrants
from an African country, for example, must not be discriminated against in
their workplace on grounds of race, age or sexual orientation. However, any
lack of entitlement to social housing or to other benefits because they are not
EU citizens does not qualify as discrimination under the anti-discrimination
directives.

8.
Am I protected only on the basis of my own characteristics?

No,
the protection from discrimination is wider.

You
are also protected from discrimination by association, a situation in which you
are treated unfavourably because of someone else’s characteristics,
e.g. if you are discriminated against and harassed in the workplace
because you need extra time off to care for your disabled child.

Discrimination
on the basis of assumptions or perceptions is also prohibited, even if these
assumptions are wrong. For example, if you are not employed because the employer
mistakenly thinks that you are homosexual or Muslim.

9.
What if I am disabled and need some adjustments in the workplace to be able to
work?

If
you are disabled, your employer or future employer is required to provide
‘reasonable  accommodation’ for you in the workplace. ‘Reasonable’ means that
such measures should not impose a disproportionate burden on employers, such as
high financial costs relative to the size of their business, or be in breach of
workplace health and safety rules.

You
should first discuss your needs with your employer, who may not be aware of his
obligation to provide reasonable accommodation. The decision on what
adjustments are reasonable for employers can only be made on a case-by-case
basis. You may also wish to consult an organisation for the rights of the
disabled in your country.

Know your rights — right to reasonable accommodation in employment Reasonable adjustments in the workplace to suit your needs as a disabled worker may include providing you with a reserved parking space, an accessible workspace and specially adapted equipment.      Your job application cannot be refused on the grounds that the employer would have to make reasonable adjustments to allow you to carry out the job.

10.
Who can help me if I am discriminated against?

If
you know, or suspect, that you have been discriminated against, seek advice and
assistance from agencies such as specialised equality bodies, trade unions or
non-governmental organisations before taking legal action.

Member
States are responsible for implementing EU law in national laws and
enforcing it correctly. They must guarantee your rights under EU law at
national level.  EU law requires Member States to set up national equality
bodies, which provide independent assistance to victims of discrimination.
Although the EU obligation only extends to the grounds of racial or ethnic
origin and sex, the remit of the national equality body in most Member States
also covers religion or belief, disability, age and sexual orientation and in
many cases nationality, language or political opinion too.

The
forms of assistance which the national equality bodies are required to provide
to victims of discrimination are not specified in EU law and vary across Member
States. Depending on their competences and resources, some national bodies may
only provide you with useful information, whereas others may help you pursue
your complaint in national proceedings or may examine your case
themselves.

You
can consult the website of your own national equality body under ‘Useful links’
below for further information, including details of its competences and the
assistance it can offer.

In
many Member States, trade unions (in employment issues) and human rights
and other non-governmental organisations provide information and
assistance to victims of discrimination. The EU’s anti-discrimination law
provides such organisations with a right to engage in discrimination
proceedings either on behalf or in support of the complainant.

11.
Should I report discrimination?

Yes.
You can only obtain a remedy (e.g. reinstatement in your job or compensation)
if you complain. Filing a complaint will also help others by enhancing
awareness of discrimination and changing attitudes. Real change often requires
a critical mass of cases.

12.
Who deals with my complaint?

National
law identifies who is responsible for dealing with complaints about individual
situations. You should turn to national advice services (see Question 10) for
more information about the complaints process.

If
you complain to the Commission about a Member State’s failure to comply with EU
law, the Commission will examine whether your complaint reveals
incorrect transposition or application of EU law. Should the Commission find a Member State to be in breach of EU law, it can decide to launch infringement proceedings
against it.

The
Commission cannot intervene in individual cases between victims of
discrimination and their employers, service providers or public authorities. In
particular, it cannot order a Member State (or a company or individual in a Member State) to provide any particular remedy to you, such as reinstatement in your job or
compensation. A complaint to the Commission can never substitute for enforcing
your rights through national authorities and courts.

13.
What do I need to do to prove that I have been discriminated against?

Do
you have reason to believe that you would have been treated differently were it
not for your disability, age, ethnic or racial origin, religion or belief,
sexual orientation or sex?

If
so, you should collect all the evidence (documents, statistical evidence and
witness statements) you can find to support your claim. Check how you can
access the necessary documents (e.g. documents held by your employer). Your
national equality body may be able to help you gain access or you may be able
to obtain an administrative or court order.

Seek
advice from relevant sources (national equality body, trade union or
non-governmental organisation) on how to prove your case.

By
shifting the burden of proof, the EU anti-discrimination directives make it
easier for victims of discrimination to enforce their rights. As a victim
claiming compensation or reinstatement in your job, you only need to establish
facts from which it may be presumed that there has been discrimination. It is
then for the other party to prove that no discrimination occurred.

14.
If I detect discrimination, can I complain even if it does not affect me
directly?

If
you complain to the Commission about a Member State’s failure to comply with EU
law, you do not have to demonstrate an individual interest or show that you are
directly concerned by the problem.

If
you complain about your own individual situation, you should file your
complaint at national level in line with national requirements.

15.
What methods are available for seeking remedies?

Member
States decide whether discrimination cases should be dealt with in criminal,
civil or administrative proceedings. Some Member States provide the option for
mediation (for example, a negotiated solution between you and your employer).
If different options are available, you need to decide on the best one for you.
If you would rather not wait for the outcome of potentially lengthy and
expensive court proceedings, you may decide to opt for mediation (if available
under your national law), which is usually quicker and less costly.

16.
What are the remedies? Can I receive compensation? Can I have my job back if I
have been dismissed for discriminatory reasons?

Rather
than harmonising sanctions and remedies in cases of discrimination, the anti‑discrimination
directives require the
Member States to have effective, proportionate and dissuasive sanctions in
place and to ensure that judicial procedures are available for the enforcement
of obligations under EU law. You should check what remedies are available under
your national legislation.

Typical
remedies are compensation to the victim, reinstatement in a job or orders
requiring the discriminating party to take specific action (for example, an
order for an employer to change its discriminatory
recruitment policy).

17. How much will I have to pay for
proceedings?

For
national proceedings, this will depend on your national law. Enquire early on
about your entitlement to free legal aid, which may also be available from
equality bodies, trade unions or non-governmental organisations.

Useful
links:

European Commission, DG Justice, on
‘Tackling discrimination’:  http://ec.europa.eu/justice/discrimination/index\_en.htm

European Commission, DG Justice, on
‘Gender equality’:
http://ec.europa.eu/justice/gender-equality/index\_en.htm

European Commission, DG Justice, on
‘Fundamental rights’:
http://ec.europa.eu/justice/fundamental-rights/index\_en.htm

European Commission,
Secretariat-General, on ‘Application of EU law’: http://ec.europa.eu/eu\_law/index\_en.htm

European
Network of Equality Bodies (Equinet): http://www.equineteurope.org/

European
Court of Human Rights on application to the Court: http://www.echr.coe.int/Pages/home.aspx?p=applicants&c=#n1365511865464\_pointer

European
Commission, DG Home, on status of non-EU nationals who are long‑term residents,
including on their right to equal treatment with nationals in certain key
areas:  
http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/immigration/long-term-residents/index\_en.htm

National
equality bodies:

Austria: Ombud for Equal Treatment: www.gleichbehandlungsanwaltschaft.at

Belgium:
Centre for Equal Opportunities and Opposition to Racism: http://www.diversite.be/?
Institute for the Equality of Women and Men:  http://igvm-iefh.belgium.be/

Bulgaria: Commission for Protection Against Discrimination (CPD)
www.kzd-nondiscrimination.com

Croatia: Office for the Ombudsman: www.ombudsman.hr

Cyprus: Office for the Commissioner for Administration (Ombudsman)
www.no-discrimination.gov.cy

Czech Republic: Office for the Public
Defender of Rights: www.ochrance.cz

Denmark:
Danish Institute for Human Rights: www.humanrights.dk
Board of Equal Treatment: http://www.ligebehandlingsnaevnet.dk/

Estonia: Gender Equality and Equal Treatment Commissioner: http://www.svv.ee/

Finland:
Ombudsman for Minorities: http://www.ofm.fi/
Ombudsman for Equality: www.tasa-arvo.fi

France: Defender of Rights: www.defenseurdesdroits.fr

Germany: Federal Anti-Discrimination Agency (FADA):
www.antidiskriminierungsstelle.de or www.federal-anti-discrimination-agency.com

Greece: Greek Ombudsman: www.synigoros.gr

Hungary:
Equal Treatment Authority:  www.egyenlobanasmod.hu
Office of the Commissioner for Fundamental Rights: www.ajbh.hu

Ireland: Equality Authority: www.equality.ie

Italy: National Office against Racial Discrimination (UNAR): www.unar.it

Latvia: Office of the Ombudsman: http://www.tiesibsargs.lv/eng/

Lithuania: Office of the Equal Opportunities Ombudsperson: www.lygybe.lt

Luxembourg: Centre for Equal Treatment: www.cet.lu

Malta: National Commission for the Promotion of Equality (NCPE): www.equality.gov.mt

Netherlands: Netherlands Institute for Human Rights: http://www.mensenrechten.nl/

Poland: Human Rights Defender:  www.rpo.gov.pl

Portugal:
Commission for Immigration and Intercultural Dialogue – ACIDI: www.acidi.gov.pt
Commission for Citizenship and Gender Equality – CIG: http://www.cig.gov.pt/
Commission for Equality in Labour and Employment – CITE:  www.cite.gov.pt

Romania: National Council for Combating Discrimination (CNCD):
www.cncd.org.ro

Slovakia: National
Centre for Human Rights: http://www.snslp.sk

Slovenia: Advocate of the Principle of Equality:  www.zagovornik.net

Spain: Race and Ethnic Equality Council: www.igualdadynodiscriminacion.org

Sweden: Equality Ombudsman: www.do.se

United Kingdom:
Great Britain: Equality and Human Rights Commission (EHRC):
www.equalityhumanrights.com
Northern Ireland: Equality Commission for Northern Ireland:  www.equalityni.org

Annex II :
Summary of case-law

1. Introduction

This
Annex provides a summary of the case-law of the Court of Justice of the
European Union (the 'CJEU' or the 'Court') on Directives 2000/43/EC and
2000/78/EC. It does not aim to give an exhaustive account of all aspects of the
case-law but rather to summarise the most important aspects[2].
It will also mention a few cases of the European Court of Human Rights
('ECtHR') which concern its interpretation of the provisions on the prohibition
of discrimination in the European Convention of Human Rights, where that
appears to be of particular interest in the context of the interpretation of EU
law[3].
Reference will be made to some judgments of national courts, as a way to
illustrate the manner in which the national legislation transposing the two
Directives has been applied.

There
have been more cases decided by the CJEU concerning Directive 2000/78/EC
than Directive 2000/43/EC, and of those most are about discrimination on the
ground of age. In particular the cases concern the interpretation of Article
6(1) of Directive 2000/78/EC, which provides that differences of treatment
based on age may be justified if they have a legitimate aim and the means used
to achieve that aim are appropriate and necessary. The judgments of the CJEU
concerned mainly discrimination against older workers, for example, rules
providing for the termination of an employment contract when workers reach pensionable
age. Some cases also dealt with specific measures unfavourable to younger
workers.

Case-law
on the grounds of racial or ethnic origin, disability or sexual orientation is
still less developed. In such cases the CJEU has dealt with basic issues such
as, for example, public statements by an employer that he will discriminate in
recruitment, the definition of disability and the concept of reasonable
accommodation, and the exclusion of same-sex partners from work-related
benefits. The CJEU has not yet had an opportunity to deal with a case
concerning discrimination based on religion or belief under Directive
2000/78/EC.

2. General
issues

a)
The application of the Directives ratione temporis

The
first case regarding the application of the two anti-discrimination Directives
was Mangold, which concerned a rule of a German law of 2002 providing
for the possibility to conclude freely fixed-term contracts with workers over
the age of 52 (where otherwise the admissibility of such fixed-term contracts
was subject to certain conditions). The plaintiff, who was 56 years old when he
concluded an employment contract with a lawyer, claimed that the rule
constituted unjustified age discrimination contrary to Article 6(1) of
Directive 2000/78/EC. The CJEU agreed that the rule was discriminatory on the
basis of age.

The
fact that, at the time when the plaintiff’s employment contract took effect
(July 2003), the Directive had not yet been transposed in Germany (the relevant deadline was December 2006) was not an obstacle for the Court to rule
the Directive having certain legal effects. The Court recalled that during the
period prescribed for transposition of a directive Member States must refrain
from taking any measures liable to seriously compromise the attainment of the
result it prescribes.[4]

Moreover,
the Court added that the principle of non-discrimination on grounds of age is a
general principle of European Union law, its source being in various
international instruments and the constitutional traditions of the Member
States. Therefore, where national rules fall within the scope of European Union
law, which was the case at hand since the German law in question was deemed to
implement Directive 1999/70 on fixed-term work, the Court must answer a
preliminary ruling request. The Court concluded that the national court was
responsible for providing the legal protection which individuals derive from EU
law rules and to ensure that those rules are fully effective, setting aside any
provision of national law which may conflict with that law.[5]

In
latter cases the Court developed and clarified its jurisprudence in this
respect. In Bartsch, the Court ruled that national courts must not apply
the prohibition of discrimination based on age when the situation under
examination has no link with European Union law. In contrast to Mangold,
no such link existed in Bartsch, since the case concerned a period of
time preceding the deadline to transpose the Directive and the measure in
question was not implementing an EU Directive or any other instrument of EU
law.[6]

But
in Kücükdeveci, the deadline to transpose the Directive had already
expired and thus the Directive was considered applicable. Moreover, the CJEU
ruled that national courts were obliged to disapply national legislation if it
was incompatible with the principle of equal treatment, and could even do that
on their own initiative. This obligation applied notwithstanding the fact that
the situation at hand concerned a relation between two private parties.[7]

b) The Charter
of Fundamental Rights of the European Union

The
Court has stated that the principle of non-discrimination is proclaimed in
Article 21 of the Charter and is given specific expression in the Directives.[8]

Therefore,
the Court has ruled that the interpretation of the Directives must take into
consideration the rights protected by the Charter – such as the right to engage
in work[9]
and the right to negotiate and conclude collective agreements[10]
laid down in its articles 15 and 28, respectively.

c) Personal
scope - Discrimination by association or based on perception

In
Coleman,[11]
the Court clarified that the prohibition of discrimination on the grounds of
disability could, under certain circumstances, include discrimination based on
the association to a disabled person. However, the Court only recognised this
possibility regarding direct discrimination and harassment.

Ms Coleman was a legal
secretary in a firm of solicitors in London. Her young son was a disabled child
whose health required special care. Ms Coleman claimed that she had been
discriminated because she was the primary carer of a disabled child, since her
colleagues, who were parents of non-disabled children, had been treated more
favourably in similar circumstances. She complained, for example, that her employer
refused to allow her to go back to her previous job when she returned from
maternity leave, refused her flexible working hours and she was subject to
insulting comments about her and her child.

The Court ruled that, since
its objective is to “combat all forms of discrimination in employment and
occupation”, the Directive “applies not to a particular category of person but
by reference to the grounds mentioned in Article 1” – including disability and
therefore protects persons who are discriminated against due to someone else’s
disability as the mother in this case. Otherwise, i.e. accepting a restrictive
interpretation which limited the protection to persons with disabilities only,
would deprive the Directive of its effectiveness and would reduce the
protection it is meant to ensure.[12] The Court therefore concluded that Ms Coleman, the worker who was
mother of a disabled child, was protected by the Directive under the
circumstances of the case.

The same reasoning would
appear to apply, mutatis mutandis, to all other grounds of
discrimination protected under the two Directives.

National courts

In a UK case[13], an
employee alleged that he had been subjected by colleagues at work to sexual
innuendo suggesting that he was homosexual, in consequence of which he left his
job.  He was in fact a heterosexual married man and it was accepted that the
perpetrators of this conduct had known that he was not gay. The UK Court of
Appeal held that it did not matter whether the employee in these circumstances
was gay or not.  What was required was that an employee’s sexual orientation –
whether real or supposed – was the basis of the harassment.  This was held to
be the case, not only in the event of harassment of a person who was thought to
be gay but was not, but also where a person harassed who was being treated as
though he were gay although it was known that he was not. It followed that
there had been harassment on grounds of sexual orientation.

d)
Defence of rights - Principles of equivalence and effectiveness

In Bulicke,[14] the
Court interpreted Article 9(3) of Directive 2000/78/EC, providing that national
law governs time limits for bringing actions to court for the enforcement of
obligations under the Directive.[15] The
case related to Article 15(4) of the German General Law on Equal Treatment,
which provides that a complaint of discrimination in employment has to be
introduced within a time limit of two months. In the case of a job application
such period starts at the receipt of the rejection.

Ms
Bulicke, who was aged 41, had applied for a job advertised as being for people
“between 18-35 years of age”. Her application was rejected with an explanation
that all posts had been filled, but two people aged 20 and 22 were recruited.
When she complained about discrimination, the competent court dismissed her
action since she had submitted it a few days after the two-month limit had
expired.

The
CJEU recalled its case-law on the matter, according to which procedural rules
to enforce EU law must be the same as for similar procedures for the
enforcement of purely national law  (principle of equivalence) and can’t render
practically impossible or excessively difficult the exercise of the EU right
(principle of effectiveness).[16] The
Court noted that under German law workers also had to bring cases to court
within short time-limits in some other situations.[17] 
Moreover, it also considered that, in principle, the two-month period did not
make impossible or excessively difficult the exercise of rights conferred by EU
law – notably in the light of the possibility that a teleological
interpretation of the provision in discussion would allow to count the period
only from the moment when the worker has knowledge of the discrimination.
However, the CJEU left it for the national court to decide if the principles of
equivalence and effectiveness were actually respected in the case.[18]

e) Burden of proof - access to information in recruitment
procedures

In Meister[19] the Court interpreted the rule on
the sharing of the burden of proof of Article 8(1) of Directive 2000/43/EC and
Article 10(1) of Directive 2000/78/EC.[20]

Ms Meister was a Russian national, 45
years old at the time of the relevant facts, whose application for a job was
rejected twice without any explanation. She claimed in court that she fulfilled
the requirements of the job advertisement and that she had been discriminated
on the basis of her sex, age and ethnic origin. She asked for the concerned
employer to produce the recruitment file, so that she could prove that she had
better qualifications than the person selected.

The Court refused to read in the
abovementioned provisions such a right to access to information. However, the
Court stated that the refusal by the employer to grant any
access to information may be taken into account by the national court when
examining whether or not there was a prima facie case of discrimination.[21]

National courts

A Swedish case[22] demonstrates the use of situation testing as evidence of
discrimination. In this case a group of young men conducted a test one
evening to determine whether certain selected restaurants discriminated against
persons of non-Swedish origin. Before they proceeded to the entrance, the men
split up into several smaller groups. In some groups, all were of foreign
appearance, in other groups all had fair complexions. The light-skinned persons
were admitted to the restaurant, whereas the darker-skinned persons were
stopped on the grounds that they did not have a VIP card or were not on the
guest list. The sequence of events was documented by hidden microphones and
video cameras. The Swedish courts found that the men of non-Swedish origin had
been subjected to racial discrimination and ordered the restaurant to pay
compensation to each of them.

3. Racial and
ethnic origin

The
most important case decided by the CJEU on racial and ethnic origin
discrimination was Firma Feryn.[23]

It
concerned a procedure initiated by the Belgian Centre for equal
opportunities and combating racism against Firma Feryn, a company
specialising in the installation of garage doors. The director of that company
made public statements declaring that he wanted to recruit installers but could
not take on employees of a particular ethnic origin (‘immigrants’) since the
company’s customers were reluctant to give such persons access to their homes
during the installation work. Under Belgian law the Centre could bring
legal proceedings on discrimination, even in the absence of an identifiable
complainant. The Centre claimed in the national procedure that Firma
Feryn had applied a discriminatory recruitment policy.

The
Court declared that, the fact that an employer states publicly that it will not
recruit employees of a certain ethnic or racial origin constitutes direct
discrimination within the meaning of Directive 2000/43/EC. The Court
emphasised that such statements are likely to strongly dissuade certain
candidates from submitting their candidature and, therefore, to hinder their
access to the labour market. Pointing to the objective of the Directive, the
Court considered that the absence of an identifiable complainant is not an
obstacle for the finding of direct discrimination.

Concerning
the application of the rule on the burden of proof of Article 8(1) of Directive
2000/43/EC, the Court declared that this type of statements by an employer, by
which it makes clear that it will not recruit any employees of a certain ethnic
or racial origin, are sufficient for a presumption of the existence of a
directly discriminatory recruitment policy. It is then for that employer to prove
that its actual recruitment practice does not correspond to those statements.

Finally,
on what sanctions were appropriate for recruitment discrimination in the
present case, the Court stated that the Directive requires the Member States to
provide effective, proportionate and dissuasive sanctions, even where there is
no identifiable victim.

The
Court dealt with the scope of Directive 2000/43/EC in two cases.[24]

In
Runevič-Vardyn it interpreted the concept of “services” within the
meaning of Article 3(1)(h) of the Directive, which prohibits
discrimination, inter alia, regarding “access to and supply of goods and
services which are available to the public”. The case regarded Lithuanian rules
requiring that the surnames and forenames of natural persons be entered on
certificates of civil status only in a form complying with the spelling rules
of the Lithuanian language. The complainants, of Polish origin, were interested
in having their names spelt in the Polish language. The Court ruled that -
although the Directive’s scope cannot be interpreted restrictively - such
national rules do not come within the concept of a ‘service’ within the meaning
of that provision.[25]

In
Kamberaj the Court dealt with the exclusion clause of the Directive
provided for in its Article 3(2). This states that differences of treatment
based on nationality, concerning entry into and residence of third-country
nationals or stateless persons in the European Union, and arising from their
legal status, are not covered by the Directive.

The
case related to Italian legislation providing for housing benefit for low
income tenants, which differentiated between Italian nationals and legally
resident third-country nationals. The plaintiff, an Albanian national, whose
application for that benefit had been rejected, complained of discrimination
contrary to Directive 2000/43/EC and to Directive 2003/109/EC on the status of
third-country nationals who are long-term residents.[26]
The Court noted that he complained of discrimination based on his status as a
third-country national and pointed to the text of Article 3(2) of Directive
2000/43/EC. It concluded that the discrimination claimed by the applicant,
although it could potentially be contrary to Directive 20003/109/EC, does not
fall within the scope of Directive 2000/43/EC.[27]

-
The European Court of Human Rights

It
is also worth noting that the European Court of Human Rights ('ECtHR') has
ruled on several cases regarding discrimination based on racial and ethnic
origin. When interpreting the European Convention of Human Rights, the ECtHR
has made reference to the provisions of Directive 2000/43/EC.

In
2005, in Timishev the Court interpreted the concepts of race and
ethnicity for the purposes of Article 14 of the European Convention of Human
Rights, which provides that the rights protected by the Convention “shall be
secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.”

The
Court stated that:

“Ethnicity and
race are related and overlapping concepts. Whereas the notion of race is rooted
in the idea of biological classification of human beings into subspecies
according to morphological features such as skin colour or facial
characteristics, ethnicity has its origin in the idea of societal groups marked
by common nationality, tribal affiliation, religious faith, shared language, or
cultural and traditional origins and backgrounds.” [28]

In
2008, in the landmark case D.H. and others v the Czech Republic [29]
the European Court of Human Rights dealt with a complaint by a group of Czech
nationals of Roma origin. The applicants had been placed in special schools for
children with learning difficulties, who were unable to follow the ordinary
school curriculum. Their placement was based on a psychological test to measure
the child’s intellectual capacity. They claimed that, as a result of their Roma
origin, they had suffered discrimination in the enjoyment of their right to
education. The case was brought to the ECtHR notably because at the time of the
relevant facts (between 1996 and 1999) the Czech Republic had not yet acceded
to the European Union.

In
its ruling, the ECtHR noted that the rules governing children’s placement in
special schools did not refer to the pupils’ ethnic origin, but pursued the
legitimate aim of adapting the education system to the needs, aptitudes and
disabilities of the children. However, the number of Roma children in special
schools was disproportionately high and Roma pupils formed a majority of the
pupils in special schools. The evidence submitted in this regard was sufficient
in the view of the Court to give rise to a strong presumption of indirect
discrimination. As a consequence, the burden of proof shifted to the
Government. The latter had to show that the difference in the impact of the
legislation was the result of objective factors unrelated to ethnic origin.

Examining
whether there was an objective and reasonable justification to the situation at
hand, the Court noted that the psychological tests were conceived for the
majority population and did not take Roma specifics into consideration.
Therefore, the results of these tests could not serve as justification for the
difference in treatment. The ECtHR also dismissed the relevance of the parental
consent given to the placement of the children in the concerned schools. It
considered that the parents of the Roma children were often poorly educated and
thus incapable of realising the consequences of their consent and that, in any
event, the right to racial equality could not be waived.

The
ECtHR recognised the efforts made by the Czech authorities to ensure that Roma
children receive schooling and its difficulties in attaining that objective. It
also acknowledged that new legislation has abolished the special schools.

However,
the Court noted that the applicants had been placed in schools for children
with mental disabilities, where a more basic curriculum was followed and where
they were isolated from pupils from the wider population. As a result, their
social integration and their future job prospects were at risk.

Therefore,
the Court was not satisfied that the difference in treatment between Roma
children and non-Roma children was objectively and reasonably justified and
that the means used were proportional to the aim pursued.

The
Court concluded that since the relevant legislation as applied in practice at
the material time had a disproportionately prejudicial effect on the Roma
community, there had been a violation of Article 14 (prohibition of
discrimination) of the European Convention on Human Rights read in conjunction
with Article 2 of its Protocol No. 1 (right to education).[30]

In
its reasoning to reach this conclusion, the ECtHR referred to the provisions of
Directive 2000/43/EC on indirect discrimination and sharing of the burden of
proof and to the related case-law of the CJEU decided in the context of EU law
on gender equality and free movement of workers.[31]

National
courts

Instruction
to discriminate

In
a Dutch case,[32]
three branch managers and a personnel officer of a supermarket chain were
convicted under the Dutch Criminal Code of intentionally discriminating against
people of Moroccan descent on account of their race. The branch managers had
informed the personnel officer of the chain by email that they did not want any
more applicants of Moroccan descent to fill vacancies. The personnel officer
complied with the branch managers’ request and did not send any more applicants
of Moroccan descent to the branches in question.

Education

The
legislation transposing Directive 2000/43/EC into national law has given rise
to many cases in national courts. These cases indicate that, although these
courts did not make many preliminary references to the CJEU on racial and
ethnic discrimination cases, they do apply regularly the national rules
implementing Directive 2000/43/EC. Some judgments are interesting to note.

In
June 2011 the Hungarian Supreme Court examined the decision of a local council
to rent part of the building of the municipal school to a private foundation
for a symbolic fee. The foundation was established to launch a private school,
to which the local council provided significant financial support. Since the
private school required a tuition fee, most of the Roma pupils stayed in the
local school, while most of the other students enrolled in the private school.

The
Hungarian Supreme Court found the existence of segregation based on the fact
that the local council was the owner of the building in which both the local
public school and the private school operated. By renting out part of the local
school building to the private foundation, the local council contributed to
maintain the segregation between Roma and non-Roma pupils. The Supreme Court
concluded that the equal treatment rules of the Hungary Equal Treatment Law had
been violated and obliged the local council to refrain from any future
violation.[33]

More
recently, in Slovakia, in October 2012, the Regional Court in Prešov confirmed
a decision of a first instance court ruling that an elementary school violated
the principle of equal treatment by putting Roma children into separate
classrooms and thus discriminated them on the ground of their ethnicity. The
courts also ordered the school to rectify the illegal situation by placing
Romani children into classrooms together with children who are not of Roma
origin.

The
school claimed that the separate classes allowed teachers to have a more
individualised approach when teaching Roma children since they came from
socially disadvantageous backgrounds. Moreover, the children separation helped
Roma children not feeling handicapped since they would realise that other
children were doing better at school. Both the first and second instance courts
rejected these arguments. The Regional Court emphasised that segregation is
unacceptable and explained the importance of an inclusive education.[34]

Employment
and occupation

In
a Latvian case[35] a female
Roma job applicant was not given the job of a shop assistant “due to her
accent”.  The Latvian Jelgava Court found that the true reason for the refusal
to employ her was her ethnicity. The Court concluded that for a position of
shop assistant the requirement to speak Latvian accent-free was not objectively
substantiated, as an accent does not impede good communication with customers.
Consequently, the Court found that the plaintiff had been indirectly
discriminated on the basis of her ethnic origin and ordered the defendant to
pay compensation.

A
Romanian case[36]
is an example of apparently neutral measures that were found to involve
indirect discrimination on the grounds of ethnic origin in self-employed
activities. In this case, members of the Association of Florists of Romania in
Bucharest were found to have been indirectly discriminated by the Mayor of the
town as a result of his order to eliminate all the sites for flower retail
following new rules with regard to street trade (the measures affected a group
of florists within the Roma community). The Court found that the Mayor treated
similarly both people who met the conditions of site authorisation for flower
retail and people who failed to meet these conditions. The Court concluded that
the decisions should have been taken individually in each and every case. Since
they were not, they were indirectly discriminatory.

Access
to services

In a Swedish case[37]
two Roma women and their children were denied service at a restaurant. The
restaurant staff alleged that the restaurant had previously had Roma customers
who had engaged in inadmissible behaviour, and that they therefore no longer
permitted Roma customers to eat there. The District Court found that the women
had been subjected to racial discrimination and awarded them
SEK 15 000 each in damages.

4. Religion or
belief

The
Court of Justice of the European Union has not yet dealt with a case related to
discrimination based on religion or belief.

In
contrast, the European Court of Human Rights has dealt with many cases
regarding the right to freedom of thought, conscience and religion, inscribed
in Article 9 of the European Convention of Human Rights. Only some of these
cases concern discrimination based on religion in situations regarding
employment and occupation and therefore could potentially be covered under the
remit of Directive 2000/78/EC.

A
recent judgment illustrates the approach of the ECtHR to finding the balance
between the right to religious freedom and other competing human rights, as
well as other legitimate public interests.

In
Eweida and Others v The United Kingdom[38] the
ECtHR dealt with complaints presented by British citizens working for different
employers, who were all practising Christians. Ms Eweida,
a British Airways’ employee, and Ms Chaplin, a geriatrics nurse, complained
that their employers put restrictions in the workplace on visibly wearing
Christian crosses around their necks. Ms Ladele, who was a Registrar of Births,
Deaths and Marriages, had been dismissed for refusing to accept as part of her
duties the obligation to celebrate civil partnerships between same-sex couples.
She believed that same-sex partnerships are contrary to God’s law and that it
was incompatible with her beliefs to do anything to condone homosexuality.

In the case of Ms Eweida the
ECtHR explained that, on the one hand there was Ms Eweida’s wish to manifest
her religious belief, while on the other hand there was the employer’s concern
about its corporate image. The Court ruled that the domestic courts, by
rejecting the plaintiff’s complaints, had accorded too much weight to the
employer’s concern. The Court noted, first, that Ms Eweida’s cross was discreet
and could not have detracted from her professional appearance; secondly, there
was no evidence that the wearing of other items of religious clothing (which
were previously authorised) had had any detriment to British Airways’ image
and, finally, the fact that the company meanwhile had amended its uniform code
to allow for the wearing of religious symbolic jewellery demonstrated that the
earlier prohibition was not crucial. In conclusion, the Court ruled that there
had been a violation of Article 9 of the Convention on the right to freedom of
religion in her respect.

On the contrary, regarding
Ms Chaplin, the nurse, the Court decided that the protection of health and
safety on a hospital ward, which was the reason for asking her to remove the
cross, was more important than in Ms Eweida’s case and that hospital managers
were well placed to make decisions about clinical safety. Similarly, in the
case of Ms Ladele, the Court accepted that the national courts did strike a
fair balance when they confirmed the employers’ decisions to bring disciplinary
proceedings against her. The Court noted in particular that the employer was
pursuing a policy of non-discrimination against service-users, and the right
not to be discriminated against on grounds of sexual orientation was also
protected under the Convention. Therefore, regarding both Ms Chaplin and Ms
Ladele, the ECtHR found no violation of Article 9 of the
Convention, or of its Article 14 on prohibition of discrimination.[39]

Quite interestingly, in its judgment,
under the section on “Relevant Domestic Law”, the ECtHR quotes Article 2(2)(b)
of Directive 2000/78/EC – which prohibits and defines indirect discrimination.[40]

National courts

The concept of “belief” was interpreted
by the Austrian Supreme Court of Justice[41] when
it decided that disciplinary measures against a high ranking civil servant at
the Federal Asylum Service did not violate the prohibition of discrimination
based on “belief”. The Court found that his views about asylum seekers and the
government’s asylum policy, expressed in a book he published, did not
constitute a “belief” for that purpose.

This is in line with the Commission's
reading. The concept of "belief" should be read in the context of
"religion or belief". It refers to a belief or a philosophical
conviction (like those of atheists or agnostics, for example), which does not
need to be of a religious nature, but it doesn’t cover political opinion. If
the legislator had wanted to cover political opinion, it would have stated so
and referred to "political opinion" separately, as in Article 21 of
the Charter of Fundamental Rights of the European Union. [42]

5.
Disability

The
Court interpreted the concept of disability for the purposes of the protection
granted by Directive 2000/78/EC in two cases.

In
Chacón Navas, the Court distinguished illness from disability. It ruled
that a worker who had been dismissed by his employer solely on account of
sickness is not protected by the Directive.[43] Since the
scope of the Directive cannot be extended by analogy, sickness cannot be
regarded as a ground of discrimination in addition to those already explicitly
included in Directive 2000/78/EC.[44]

The
Court stated that concept of ‘disability’ – not specifically defined in the
Directive - must be given an autonomous and uniform interpretation throughout
the European Union. That concept refers to “a limitation which results in
particular from physical, mental or psychological impairments and which hinders
the participation of the person concerned in professional life.” Since the
Directive is concerned with the participation of persons with disabilities in
professional life over a long period of time, it must be probable that the
limitation of the person will last for a long time.[45]

In
Ring and Werge the Court further developed its interpretation and
accepted that the concept of disability includes a condition caused by an
illness where that illness entails a long-term limitation such as the one
defined in Chacón Navas.[46]
In this context, the state of health of a person with a disability who is fit
to work, albeit only part-time, is thus capable of being covered by the concept
of ‘disability’.[47]

The
Court reached this conclusion after recalling that, since the European Union
has approved the United Nations Convention on the Rights of Persons with
Disabilities,[48]
Directive 2000/78/EC had to be interpreted according to the Convention.
The Court pointed out the open definition of disability provided by Article 1
of the Convention, according to which:

«Persons with
disabilities include those who have long-term physical, mental, intellectual or
sensory impairments which in interaction with various barriers may hinder their
full and effective participation in society on an equal basis with others.»[49]

The
Court also clarified that the nature of the measures to be taken by the employer
is not decisive for considering whether a person’s state of health is covered
by that concept, since the measures are the consequence of and not the
constituent element of the disability.[50]

A
very important provision of the Directive regarding persons with disabilities
is the obligation to provide reasonable accommodation to persons with
disabilities, inscribed in Article 5 of Directive 2000/78/EC. The remit and
content of this obligation was also clarified by the Court.

In
Commission v Italy the Court ruled that the obligation implies that all
employers adopt effective and practical measures, where needed in a particular
case, in favour of all persons with disabilities and regarding the various
aspects of employment and occupation, so that these people have access to,
participate in, or advance in employment, or to undergo training. The general
clause that these measures cannot impose a disproportionate burden is always
applicable. Since the Italian legislation, although providing for specific
measures to be ensured by some employers in favour of some persons with
disabilities in certain circumstances, nevertheless did not provide for such a
general obligation, the Court ruled that Italy had failed to fulfil its
obligation to completely and correctly transpose Article 5 of the Directive.[51]

In
Ring and
Werge
the Court decided that a reduction in working hours may constitute a form of
reasonable accommodation required by the same provision. The Danish legislation
at stake allowed an employer to dismiss a worker with a shorter period of
notice if he had been absent because of illness during 120 days in the previous
12 months. The Court stated that such legislation was incompatible with the
Directive, in case the worker’s absences were due to the fact that the employer
failed to provide reasonable accommodation to the worker with disabilities.
However, the Court also ruled that the legislation could be compatible with the
Directive if, when applied to a worker who was absent because his disability,
the legislation pursued a legitimate aim and did not go beyond what was
necessary for that purpose. The CJEU left the issue to be decided by the
national court.[52]

Finally,
in Odar the Court analysed a potential case of indirect discrimination
based on disability. A redundancy plan in Germany granted to workers older than
54 years of age a lower amount of compensation as compared to other workers.
That amount decreased progressively from that age on the basis of how close
they were to obtain their pension – including a severe disability pension. The
plan was neutral by making the calculation of the compensation on the basis of
the pensionable age of the worker. But severely disabled workers were at a
particular disadvantage because, since they are entitled to a pension at the
age of 60 instead of 63 for other workers, they received less compensation when
they were dismissed.

The
Court accepted that the plan had the legitimate aim of making a fair
distribution of limited financial resources, avoiding that the compensation be claimed
by persons that are not seeking a new employment. However, it considered that
the plan had an excessive adverse effect on the legitimate interests of
severely disabled workers. The plan did not take into account factors affecting
in particular persons with disabilities, such as their greater difficulties to
find new jobs and the fact that their financial needs, resulting from their
disability, may increase with age. The Court ruled that the plan went beyond
what was necessary to achieve its objective and was therefore indirectly
discriminatory.[53]

National
courts

In
a Swedish case[54]
an employer learned that a business administrator on his staff had been
diagnosed as suffering from Asperger’s syndrome. The Swedish Court had to
decide whether the employee was subsequently subjected to discrimination on
grounds of disability inter alia by the fact that the employer suspended
his development programme, downgraded his terms of employment and subjected him
to harassment. The Court found that discrimination had occurred and awarded the
employee compensation for discrimination.

6.
Sexual orientation

Tadao
Maruko[55] was
the first case in which the Court interpreted the rules of
Directive 2000/78/EC prohibiting discrimination based on sexual
orientation.

Mr Maruko had concluded a registered life partnership with another
man, who was a designer of theatrical costumes and affiliated to an
occupational pension scheme for theatrical professionals in Germany, which included old-age insurance and the related survivors’ benefits. When his
partner died, Mr Maruko applied for a widower’s pension. His request was denied
since the relevant rules restricted the pension to surviving spouses only.

The Directive does not cover
social security and social protection schemes.[56] However, under the occupational pension scheme in question, the survivor’s
pension derived from the employment relationship of the deceased partner.
Therefore, the Court classified the pension as “pay”, which is within the scope
of the Directive.[57]

The German court asked if the
refusal to pay the survivor’s pension to the registered life partner
constituted discrimination on grounds of sexual orientation. The plaintiff and
the Commission claimed that such refusal constituted indirect discrimination.

The CJEU noted that German law reserved
marriage only to persons of different sex, while it established a separate
regime for persons of the same sex, the life partnership, which had gradually
been made equivalent to marriage. Since the rules of the pension scheme restricted
the survivor’s pensions to surviving spouses and denied it to life partners,
the Court considered that the latter were treated less favourably than
surviving spouses.

Therefore,
the Court ruled that this less favourable treatment constituted, in principle,
direct discrimination on grounds of sexual orientation. However, the CJEU left
it for the national court to determine whether or not surviving spouses and
surviving life partners are in a comparable situation as regards that pension.[58]

In Römer[59]
the Court applied the same basic reasoning to a case regarding a retirement
pension for civil servants of the Land of Hamburg – which was higher for
married pensioners, as compared to those living in a life partnership.

The CJEU
explained how the national court should carry out the comparability test, i.e.
how it should analyse whether life partners are in a legal and factual
situation comparable to that of a married person as regards that pension. The
national court should focus on the rights and obligations of spouses and life
partners, according to the applicable law, and consider both the purpose of and
the conditions to obtain the specific benefit in discussion.[60]

In Dittrich[61]
the Court interpreted further the concept of “pay” for the purposes of the prohibition
of discrimination based on sexual orientation. The case concerned the
assistance granted to federal public servants in Germany in the event of
illness, which reimburses a considerable part (50% to 80%) of health care
expenses incurred by the public servant or some of his relatives. Each one of
the plaintiffs had concluded a life partnership and had requested reimbursement
of medical expenses incurred by the respective partner. The applicable law
listed spouses, but not partners, among the family relatives who were eligible
for assistance. Therefore, their requests were rejected by the administration.

The Court found
that the assistance was paid to the civil servant as part of her or his
employment. Consequently, the Court concluded that such assistance could, in
principle, be considered as “pay” and thus covered by Directive 2000/78/EC.
However, it left for the German court to determine whether the assistance in
question was indeed financed by the State administration acting as an employer,
or instead by the social security budget.[62]

Finally,
in ACCEPT [63]
the Court interpreted the rule on the sharing of the burden of proof of Article
10(1) of Directive 2000/78/EC, as applied to the prohibition of discrimination
based on sexual orientation.[64]
The case concerned the statements of Mr Becali, who presented himself as being
the ‘patron’ of ‘FC Steaua’, a professional football club based in Bucharest.[65]
In an interview on the possible transfer of a professional football player, Mr
Becali stated in essence that he would never hire a homosexual player.

ACCEPT,
an association promoting and protecting lesbian, gay, bisexual and transsexual
rights in Romania, complained against ‘FC Steaua’ and Mr Becali before the National
Council for Combatting Discrimination (“CNCD”)[66],
claiming that the principle of equal treatment had been violated in recruitment
matters.

The
CNCD decided that Mr Becali’s statements could not be considered as originating
from an employer or a person responsible for recruitment. However, they could
be considered harassment and the CNCD gave Mr Becali a warning. Since more than
six months passed after the facts took place, that sanction was the only one
possible under Romanian law. ACCEPT decided to bring an action against the
decision of the CNCD before the Court of Appeal of Bucharest, which asked for a
preliminary ruling to the CJEU.

The
Court considered that the Directive applied to the situation under discussion,
since it involved statements concerning the “conditions for access to
employment… including …recruitment conditions”, as provided for in Article
3(1)a) of Directive 2000/78/EC.

Mr
Becali claimed and appeared to play an important role in the club’s management,
but he was not able to legally bind the football club in recruitment matters.
For the Court this was not an obstacle for his statements to be considered able
to establish a prima facie presumption of discrimination, according to Article
10(1) of the Directive. The Court added that, in order to rebut a presumption
of discrimination the football club, as an employer, was not required to prove
he had recruited persons with a particular sexual orientation. This would
interfere with the right to privacy. However, the club could refer, for
example, to equality provisions regarding its recruitment policy, or to an
eventual reaction clearly distancing itself from Mr Becali's statements.

Finally,
the Court interpreted Article 17 of Directive 2000/78/EC, which establishes
that Member States must adopt rules imposing sanctions for discriminatory
behaviour, and that those sanctions must be effective, proportionate and
dissuasive. The Court had to rule whether or not the Directive is incompatible
with national legislation providing that, in case of a finding of
discrimination based on sexual orientation, which occurs more than six months
after the facts occurred, the only possible sanction is a ‘warning’. The CJEU
left for the national court to determine whether or not such a sanction was
effective, proportionate and dissuasive.[67]

7.  Age

As
mentioned above, most judgments of the CJEU on the two anti-discrimination
Directives related to Directive 2000/78/EC and concerned age related cases.
This is to some extent the logical consequence of the flexible nature of the
applicable provisions of Directive 2000/78/EC, in particular its Article 6(1)
which allows for the justification of differences of treatment based on age.

The
challenge faced by the CJEU has been that of striking a fine balance:
acknowledging the margin of manoeuvre of Member States to exercise their
competences in matters of social and employment policy, while not depriving the
prohibition of discrimination based on age of its substance.

7.1 General

a)
Material scope – retirement age and termination of the employment contracts

In
defining the material scope of the Directive, the Court ruled that it applies
also to the termination of employment contracts when workers reach a certain
age.

In Palacios,
a regional collective agreement took advantage of the possibility authorized by
the Spanish law and provided that, under certain conditions, an employment
contract could be automatically terminated once the worker reached the age of
65 – which was the normal retirement age giving right to a pension. The Court
recalled that the Article 3(1)(c) of the Directive prohibits discrimination “in
relation to employment and working conditions, including dismissal and pay”.
Recital 14 of the Directive states that the latter is “without prejudice to
national provisions laying down retirement ages”, but the Court considered that
the recital only meant that the Directive did not affect the competence of
Member State to define the retirement age of their workers. It concluded that
the automatic termination of employment “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.”[68]
In this manner the Court distinguished the definition of retirement age for the
purposes of being entitled to a pension, which is a national competence, from
the termination of a contract of employment, which is within the material scope
of the Directive.

b)
Article 2(5) of Directive 2000/78/EC – public security and mandatory retirement

Measures setting a maximum age to
exercise a profession, such as dentist or airline pilot, can, in principle,
fall within the scope of application of Article 2(5).

Petersen
concerned a German rule setting a maximum age of 68 for practice as panel dentist
in Germany, whose work can be reimbursed under the framework of the national
social security system. The Court accepted that objectives such as the
protection of health of patients, regarding the competence of doctors, or the
financial balance of the public health care system, could be covered by Article
2(5). However, since it was possible for the dentists to work in private
practice beyond the age of 68, the Court considered that the rule in question
was not necessary for the first objective, the health of patients, while it
left for the national court to examine whether it was for the second, the
financial balance of the public health care system.[69]

In
Prigge, the Court ruled that the objective of air traffic safety was
covered by the concept of “public security” under Article 2(5). The case
concerned a rule, set by a collective agreement for Lufthansa, prescribing the
automatic termination of employment for airline pilots when they reach the age
of 60. However, since national and international legislation fixes that age at
65 years only, the Court decided that the rule was not necessary to achieve
that objective.[70]
The Court declared that, as an exception to the principle of equality, Article
2(5) has to be interpreted restrictively.[71]

c) Article 4(1) of
Directive 2000/78/EC - occupational requirements based on age

Maximum
age limits to exercise certain professions can be a genuine and determining
occupational requirement within the meaning of Article 4(1).

In Wolf
there was a maximum age of 30 years to be recruited to an intermediate career
in the fire service, a career entailing not management but physical activities
such as fighting fires, rescuing persons and dealing with dangerous animals. On
the basis, notably, of scientific reports explaining that capacity and
endurance diminishes with age, the Court recognised that the full physical
capacity to carry out the profession of fire service is related to the age of
the person. Therefore, it accepted that the age limit was justified under
Article 4(1) and considered it proportionate.[72]

Likewise, in Prigge, mentioned
above, the Court accepted that possessing particular physical capabilities can
be considered a genuine and determining occupational requirement for airline
pilots and that guaranteeing air traffic safety was a legitimate aim within the
meaning of Article 4(1). However, since no reason was put forward to justify
why the retirement age of airline pilots should be at 60 for Lufthansa pilots
according to their collective agreement, instead of 65 according to national
and international law, the Court ruled that such a requirement was
disproportionate. The Court stated that as an exception to the principle of
equality, Article 4(1) should also be interpreted narrowly.[73]

National courts

In a UK case,[74]
a TV presenter claimed that she had been removed from a TV programme due to the
combination of her age and her sex. The Employment Tribunal found that a
particular characteristic need not have been the sole or even the principal
reason why a person suffers detrimental treatment, as long as it significantly
influenced the reason for treatment. The Tribunal concluded that,
had the claimant been 10 to 15 years younger she would have been given proper
consideration to remain as a presenter. The Tribunal stated that the
discrimination was not justified: the wish to appeal to a primetime audience,
including younger viewers, was a legitimate aim; but it had not been
established that choosing younger presenters was required to appeal to such an
audience. The Tribunal concluded that the removal of the claimant was
discriminatory based on age (finding only age discrimination).

7.2. Article 6(1) – the
objective and reasonable justification

Under
Article 6(1) of Directive 2000/78/EC, a difference of treatment based on age
must (i) be justified by a legitimate aim and (ii) use means that are
appropriate and necessary to achieve that aim.

The
Court has been very accommodating with Member States regarding the aims
accepted as legitimate for this purpose. This fits with the general wording and
with the purpose of Article 6(1). By contrast, the Court has been stricter
in its scrutiny of the proportionality of the measures used to reach those
stated aims. As a result, most differential treatment measures considered by
the Court have been accepted as compatible with the Directive, with some
(notable) exceptions.

a)
Legitimate aims – a broad discretion

The
Court has consistently made it clear that Member States enjoy broad discretion
in their choice of measures for the attainment of their social and employment
policy objectives.[75]
This discretion is not only for the choice of a particular aim, but also for
the means of achieving it. It applies equally to national social partners when
they have regulatory powers.[76]
In this context, the choices made at national level may be based on political,
economic, social, demographic and/or budgetary considerations and having regard
to the actual labour market situation.[77]

Moreover,
it is not necessary that the measure under examination explains or refers
explicitly to the legitimate objective that it pursues. It is sufficient that
other elements, derived from the general context of the measure, allow for the
identification of its underlying aim, so that the courts are in a position to
review its legitimacy and to consider whether the means used are appropriate
and necessary.[78]
Therefore, the Court has often examined the objectives of a measure on the
basis of the explanations made by the relevant public authorities after its
adoption.[79]

Member
States are not obliged to draw up a specific list of the differences in
treatment which may be justified by a legitimate aim. They may simply provide
in their legislation that a difference of treatment based on age is not
unlawful if it constitutes a proportionate means to achieve a legitimate aim.[80]
Member States are also free to include in their legislation examples of
differences of treatment and aims that are different from those that are
expressly listed in Article 6(1) - such as the automatic termination of
employment contracts when workers reach a certain age.[81]

Moreover,
the coexistence of a number of aims does not preclude the existence of a
legitimate aim.[82]
Public authorities may also change the instruments used to attain their
objectives, for example to adapt them to a changing employment market, without
this questioning the ability of such objectives to justify differences of
treatment based on age. Accordingly, in Palacios, the fact that the
possibility of a compulsory retirement procedure was reintroduced in Spain after being repealed for several years was considered of no relevance for this
purpose, since it was for national authorities to find the right balance
between the different interests involved.[83]

On
the other hand, the Court has also imposed some basic limits. Generally, it has
often emphasised that Member State discretion on social objectives cannot
obstruct the implementation of the principle of equality on the grounds of age.[84]

A
simple reference to a legitimate aim is not sufficient to guarantee that it
will be accepted as such by the Court. It has emphasised that mere
generalisations concerning the capacity of a specific measure to contribute to
employment policy, labour market or vocational training objectives do not
constitute evidence on the basis of which it could reasonably be considered
that the means chosen are suitable for achieving that aim.[85]

In
any case, legitimate aims have to be social policy objectives “of a public
interest nature”, as opposed to purely individual reasons specific to the
employer’s situation – like cost reduction or improvement of competitiveness.
However, in the pursuit of those legitimate aims, the law may recognise “a
certain degree of flexibility for employers”[86] such as, for
example, greater flexibility in personnel management by easing the dismissal of
young workers.[87]

The
acceptable aims

In
line with the principles set out above, one of the recurrent aims accepted by
the Court is the promotion of employment for certain categories of workers, who
have difficulties in finding work.[88]

This
may concern potentially all older workers[89] or all
younger workers[90] 
but it may also concern only a limited category of those workers. In Hütter
an Austrian law on contractual civil servants excluded periods of employment
completed before the age of 18 from being taken into account for the purpose of
determining their salary. The Court accepted that promoting the integration
into the labour market of young people who have pursued a general education,
instead of a vocational training, could be a legitimate aim.[91] 
In the same line, the promotion of employment can also concern a specific
occupation, like, for example, the profession of panel dentist,[92]
university professor,[93]
judge, prosecutor or notary.[94]

Often,
the promotion of employment for younger workers may be put in the more general
context of solidarity between generations in the distribution of
employment opportunities. In the case-law of the Court, this is certainly the
single most important legitimate aim justifying differences of treatment based
on age. It essentially means that older workers may have their employment
contract terminated (in particular if they are entitled to a pension) and
therefore be obliged to leave their jobs to make room for younger workers. Employment
being a scarce resource, Member States are in principle free to decide how they
manage access to it, for example by regulating the duration of the working
life.

As
early as in Palacios, the Court recognised the legitimacy of the
promotion of better access to employment, by means of a better distribution of
work between generations.[95]
The same basic idea was regularly used in cases where legislation or collective
agreements provided for the compulsory retirement or termination of employment
when a worker reaches a certain age.[96]

The
Court pointed out that the automatic termination of the employment contracts of
workers who become entitled to a pension has existed for a long time in many
Member States, such a mechanism being based on a balance struck by public
authorities between different considerations and on the choice between
prolonging people’s working lives or providing for their early retirement.[97]

In Rosenbladt
the Court explained its reasoning in more detail. It declared that the
lawfulness of that automatic termination of employment contracts was based on a
long lasting political and social consensus, which was based primarily on the
notion of sharing employment between the generations.

The
automatic termination of employment contracts for workers entitled to a pension
is advantageous for both younger and older workers. Obviously, it makes it
easier for younger workers to find work, particularly in times of chronic
unemployment. But older workers also benefit from such a measure. First, most
of them want to stop working as soon as they are able to retire and the pension
they receive replaces their salary. Moreover, the automatic termination of
employment contracts at a certain age has the advantage of avoiding the
dismissal of old workers if they are no longer capable of working, which may be
humiliating.[98]

The
mix of different generations of employees can also contribute to the quality of
the activities carried out, inter alia by promoting the exchange of experience
and innovation.[99]
Therefore, establishing an age structure that balances young and older workers
in order, inter alia, to encourage the recruitment and promotion of young
people, improve personnel management and providing a high-quality service, can
constitute a legitimate aim of employment and labour market policy.[100]

However,
a sign that the discretion for Member States in this respect as recognised by
the Court is not unlimited can be found in Georgiev. The case concerned
Bulgarian legislation providing for the compulsory retirement of university
professors when they reach the age of 68 and allowing them to continue working
beyond the age of 65 only by means of fixed-term one-year contracts. The
plaintiff argued that the alleged aim of encouraging the recruitment of young
people was an abstract assertion and the legislation was not aligned with the
reality of the labour market concerned, notably because young people were not
interested in a career as a professor. The CJEU left for the national court to
examine whether the aims asserted by the University and the Bulgarian
government did “correspond to the facts”.[101]

Meanwhile,
other social objectives were also accepted by the Court as legitimate aims.
Some relate to the general interests of employers, and one relates to the
interests of employees.

Rewarding
experience that enables a worker to perform his duties better was considered a
legitimate aim of pay policy.[102]

In Andersen
the Court ruled that, since a severance allowance is meant to facilitate it for
older employees with many years of service to move to new jobs, the non-payment
of that allowance to workers who are entitled to an old-age pension could have
the legitimate aim of ensuring that employers do not end up paying a double
compensation to long-serving employees who have been dismissed (in the form of
the allowance and of the pension to which the employer has contributed).[103]

In Commission
v Hungary, the Court accepted that the lowering of the compulsory
retirement age of judges, prosecutors and notaries could have the legitimate
aim of equalising the compulsory retirement age of the different professions
within the civil service, provided all persons in a specific sector were
treated equally.[104] 
However, in this case, the Court ruled that the measure at stake was neither
appropriate nor necessary, since there was no evidence that a less abrupt
transition could not achieve the aim of equalisation of retirement ages within
the civil service (see below).

Protecting
workers’ established rights may also be a legitimate aim. This was ruled in Hennigs,
in the context of a transitional arrangement which replaced an old civil
servants’ regional pay system, which had been based on age, with a new system
based on objective criteria without having regard to age. The result was that
the workers who had previously their salaries based on age maintained those
salaries, while the new system applied for the future.[105]

Finally,
in a few cases the Court did not accept that the alleged objectives
could be considered a legitimate aim for the purposes of Article 6(1) of
Directive 2000/78/EC.

In Prigge
the Court ruled that the objective of air traffic safety could not justify a
different treatment based on age under Article 6(1), but was covered
instead by the concept of “public security” under the derogation clause
provided by Article 2(5) of the Directive.[106]

In Hennigs
the Court also rejected the argument that higher pay for older employees could
be justified by their greater social needs in connection with their social
environment. The Court failed to find a direct correlation between the age of
employees and their financial needs and even pointed out that, for example, “a
young employee may have substantial family burdens to bear while an older
employee may be unmarried without dependant children.”[107]

b) Proportional
measures - appropriate and necessary

Article
6(1) requires that the means of achieving the legitimate aims be (i)
appropriate and (ii) necessary. The measure in question only complies with
the proportionality principle if both conditions are fulfilled. The Court has
progressively developed its interpretation of the concept of proportionality.
As will be explained below, in its more recent cases the difference between the
appropriateness and the necessity of a measure has become clearer.

The
Court immediately applied this requirement in Mangold, which, as
mentioned above, concerned a rule of a German law of 2002 providing for the
possibility to conclude freely[108]
fixed-term contracts with workers over the age of 52. The Court agreed that the
rule had the legitimate aim of promoting the employment of older workers, but
considered that it was not appropriate and necessary for that purpose.

The
Court pointed out that the rule was applicable only on the basis of the
workers’ age, “regardless of any other consideration linked to the structure of
the labour market in question or the personal situation of the person
concerned” – such as whether or not they were unemployed before the fixed-term
contract was concluded and what was the duration of their unemployment. The end
result was that a significant group of workers was in danger, during a
substantial part of their working life, of being excluded from stable
employment. The Court ruled that it had not been shown that the measure was objectively
necessary to attain the objective of integration of unemployed older
workers.

The Court
declared that the “observance of the principle of proportionality requires
every derogation from an individual right to reconcile, so far as is possible,
the requirements of the principle of equal treatment with those of the aim
pursued. [109]

By the same
token, in a later case the Court stated that if a certain measure unduly
prejudices the legitimate interests of workers in a given situation, it goes
beyond what is necessary to attain the social policy aims pursued by that
provision.[110]
In Rosenbladt, the Court specified that in order to examine if that was
the case, the measure at issue 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.[111]

By contrast to Mangold,
in Palacios the Court accepted that a Spanish measure was proportionate
and did not unduly prejudice the legitimate claims of workers. The case
concerned a rule of a collective agreement providing for the automatic
termination of an unemployment contract (i) once the worker reached the
normal retirement age giving right to a pension, 65 years, and (ii) provided
the worker was then entitled to a full pension. Moreover, the collective
agreement had been concluded at regional and sectorial level. The Court
considered that the rule at stake was not based on a specific age only but also
took into account other elements. It noted also that the social partners could
consider the general employment situation and the specific features of the job
in question.[112]

In Hütter
the Court developed the concept of an appropriate measure, this time in
a situation regarding young workers. As mentioned above, according to the
Austrian law in question, periods of employment completed before the age of 18
were not considered when fixing the salaries of contractual civil servants. The
Court accepted that the law could have the legitimate aim of encouraging
students to pursue a general secondary education rather than vocational
education (by not putting the former when they are recruited after completing
their studies at an older age at a disadvantage as compared with the latter who
complete their studies younger) and also of promoting the recruitment of
persons who have had a vocational education rather than of persons with a
general education (by avoiding to make apprenticeship more costly for the
public sector). However, the Court considered the two aims contradictory, since
the legislation could not, “simultaneously, be of advantage to each of those
two groups at the expense of the other.” The Court concluded that a law
containing such a contradiction in terms as to its stated rationale was not
appropriate within the meaning of Article 6(1).[113]

Later,
the Court further refined the concept of appropriateness and ruled that, in
order for a measure to be appropriate to attain the objective pursued, it must
genuinely reflect a concern to attain it in a consistent and systematic manner.[114]
In this context, exceptions to a provision of a law can, in certain cases,
undermine the consistency of that law, in particular where their scope is such
that they lead to a result contrary to the objective that it pursues. [115]

In Andersen
the Court distinguished between an appropriate and a necessary measure. The
Danish legislation in question provided that employees who worked in the same
company for 12 years were entitled to a severance allowance unless they were
old enough to obtain a pension. The Court accepted that the rule was
appropriate to provide workers with increased protection when they have
difficulties to find a new employment and to ensure that employers do not pay a
double compensation to employees who have been dismissed. However, if older
workers wanted to continue to work, they could not waive their right to a
pension and receive the severe allowance. Consequently, those workers could be
forced to accept a lower pension than the one they would obtain if they could
work longer. Therefore, the Court ruled that the Danish legislation in question
unduly prejudiced the legitimate interests of those workers and went beyond
what was necessary to reach its own objectives.[116]
The measure was appropriate, but not necessary.

In Commission
v Hungary, the Court ruled that the measure at stake was neither
appropriate, nor necessary. The case concerned the sudden lowering of the
compulsory retirement age of judges, prosecutors and notaries from 70 to 62
years within the period of one year. The Court considered that the measure was
not necessary, since there was no evidence that a less abrupt transition could
not achieve the aim of equalisation of retirement ages within the civil
service. In particular the Court noted that, while the measure in question was
applied within the period of one year only, meanwhile the government had
enacted legislation raising the retirement age for civil servants in general
from 62 to 65 years over a period of 8 years.[117]
Moreover, the measure was not appropriate to achieve the objective of
establishing a more balanced age structure and facilitating the access of young
lawyers to the judicial system. In fact, the new retirement age vacated posts
for them in the short-term, but, in comparison, decreased their chances of
getting a job there in the medium and long term.[118]

The examples
above illustrate how the Court interpreted and applied the requirement of
proportionality inscribed in Article 6(1). However, it should be noted that in
many cases the Court has accepted that the measures in discussion were
proportionate, being appropriate and necessary within the meaning of that
provision. In some cases the Court left it for the national court to determine
whether or not that was the case.[119]

8. Conclusion

The
case-law of the Court of Justice of the European Union on the two
anti-discrimination Directives is relatively recent. However, it has already
made an essential contribution to the interpretation and clarification of the Directives’
provisions.

The
Court has provided guidelines on how to interpret crucial aspects of the
Directives, such as: when is discrimination based on association prohibited;
the very concept of disability; and the circumstances in which differences of treatment
based on age are acceptable.

This
importance of the Court’s case-law will no doubt increase in the future when it
comes to consider issues such as the role of the EU Charter of Fundamental
Rights in the interpretation of the Directives, discrimination based on racial
and ethnic origin or religion and concepts such as indirect discrimination.

An
illustration of the potential for further development of the Court’s case-law
is the pending case Kaltoft,[120]
which discusses whether and under what conditions obesity can eventually be
considered a disability for the purposes of the protection afforded under
Directive 2000/78/EC.

Annex
III: Provisions on age discrimination in employment
and occupation in the Member States

I. Introduction

This annex provides an overview of the
most important provisions in the national laws of Member States on age
discrimination in employment and occupation. Article 6 of the Directive
explicitly allows for justifications of different treatment on grounds of age.
Age as a ground of discrimination differs from other protected grounds in the
Directive insofar as people all go through different ages during their lifetime
and their needs, expectations and circumstances as well as experience and
physical and intellectual capabilities change with their age. A certain degree
of differentiation based on a person's age – including age limits – is
sometimes necessary to reflect the transition from one phase to another (e.g.
from work to retirement) or for the protection of certain age groups that are
more vulnerable than others. Every person might need the Directive's protection
against age discrimination in employment or occupation at a certain point in
their life. Therefore it is essential to distinguish between, on the one hand,
differences in treatment which are justified on the basis that the measure is a
proportionate means to attain a legitimate aim and, on the other hand,
discrimination which is unlawful.

The annex[121]
is based on: Member States' and stakeholders' replies to Commission's
consultation in 2012 and on the Report by the European Network of Legal Experts
in the non-discrimination field on "Age and Employment",
published by the Commission in July 2011.[122]

II. The general impact of the
prohibition of age discrimination in the Member States

In
its contribution, AGE Platform Europe underlines that the adoption of the
Directive 2000/78/EC in its view has triggered a change of attitude towards
older people. An increasing number of employers are bringing retired staff back
into the workplace (for instance retired doctors).  AGE Platform has found that
an increasing number of employees would like to continue working past their
normal retirement age. Also, according to their findings, following the
adoption of the Directive the general situation of older workers has improved.
The concept of age discrimination in employment and occupation was new to the
Member States and in many Member States it meant a change in the way employers
approached age issues around older and younger workers.  For instance, more
attention is paid to avoiding stereotype 'age requirements' (like looking for a
'young and dynamic' colleague) in job vacancy notes.[123]
In line with discussions about sustainable pension schemes, the Directive
triggered debates around extending working life and postponing retirement. Some
Member States have abolished mandatory retirement age in this context and encourage working longer. Moreover, some Member
States have changed their legislation in order to allow workers receiving
pension to earn some income on top without losing part of their pension
entitlement.[124]
Age discrimination plays a role in national case-law and also has yielded a
large number of cases before the Court of Justice of the European Union.

1.
Exceptions under Article 6(1)(a) of the Directive: specific conditions for
younger or older workers as regards access to employment and occupation[125]

All Member States introduced specific
provisions or measures for younger and/or older workers. As regards younger
workers, some Member States provide for special assistance to young job-seekers
(IE, HU, FI), some provide for financial incentives for employers (BG, ES, IT,
RO) or have introduced  special legal measures increasing the level of
protection (HU, LT). Moreover, Member States have decided to adopt legal
measures aimed at facilitating access to the labour market through a lower
degree of protection ranging from the admissibility of lower wages to a total
exemption from anti-discrimination rules (BE, DK, IT and UK).

As regards older workers, some
Member States provide for financial
incentives for employers (ES, IT, MT, RO), or other measures, as for instance
additional leave (BE, BG, DE, EE), options for part-time work (BE, SI) or rules
on termination of employment (HU).

The
Directive, in Article 6(1)(a), allows for differences of treatment with regard
to, among others, special conditions for young people and older workers, if
these differences 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.[126]

a)
Younger workers:

Younger
workers enjoy the special protection of Council Directive 94/33/EC of 22 June
1994 on the protection of health and safety of young people at work as regards,
in substance, working time, rest periods and night work.[127]
Many measures reported by Member States in their contributions are measures to
ensure compliance with Council Directive 94/33/EC and will therefore not be
mentioned here.[128]

Apart
from the protection provided by Directive 94/33/EC, Member States have
transposed Article 6(1) of Directive 2000/78/EC by introducing a justification
clause for different treatment on grounds of age. In addition, some Member
States have adopted special measures to help integrate younger people in the
employment market.

Among
others, a lower salary is permissible in Belgium for workers
between 15 and 18 years.

In Bulgaria, employers are reimbursed by the State for the salary costs of employees
under the age of 29 for the first year (and for six months in case of an
internship or apprenticeship).

Denmark
gives the right to impose special rules on remuneration for workers under the
age of 18 years to partners of collective and other agreements in order to
support the integration of younger workers in the labour market. It exempts
younger people under 15 years of age from the prohibition of age discrimination
if the employment is not regulated by collective agreement.

Spain has
measures to support the training and employment for people under 25 years in
the form of partially subsidised contracts, for example on job-training and for
contracts of indefinite duration.

Ireland has
a training program for early school-leavers in order to improve their
employability.

Italy
provides for a financial incentive for the employer in case of employment of
young workers between 18 and 29 years who are unemployed for at least 6 months
or have no school degree. Moreover, in Italy, labour law provides an
extensive number of legal exceptions to in order to promote the employment and
vocational training of young people. Not all of these rules provide for more
favourable treatment but instead allow a reduction in salaries or a lower degree
of protection as a policy to increase youth employment.

Lithuania
provides that for people under 18 years no probation work period can be set.

Hungary reports
that young workers under 18 years benefit from an additional holiday
entitlement of 5 days and training is
funded for disadvantaged people under 25 years.

Romania has
a financial stimulus program for young graduates and unemployed people who are
single-parents.

Slovakia has
special conditions in place for access to employment, remuneration and dismissal
of persons under 18 years, such as, for instance, the obligation on the
employer to create a favourable work environment for the professional
development of the young employee.

Finland has
adopted a special set of targeted measures, particularly a measure called
'Youth Guarantee' ensuring that everyone under the age of 25 as well as recent
graduates under the age of 30 years will be offered work, education or
rehabilitation measures. For school-leavers there is a place guaranteed in
further education.

The
United Kingdom reports of specific pay structures for workers under
21 years. For instance, the national minimum wage is paid at three different
levels based on the respective age of the worker. As a consequence, employers
may have to pay employees aged 22 a higher minimum wage than those under 21
years even where they are doing the same job.

b)
Older workers:

Belgium encourages
recruitment of older workers by providing pay subsidies in specific cases. In
addition, for workers over 55 it is easier to reduce working hours.

Bulgaria
provides for the employer to be reimbursed the first year's salary when he or
she hires a person over 50.

Germany
provides for an additional day's leave for public sector workers over 55, by
way of the Collective Agreement in Public Service.

Estonia grants
extended annual leave to older workers.

Spain has
put in place measures to support training and employment for older workers by
subsidising pay.

France in
2009 adopted a National Action Plan requiring, among others, the setting of a
minimum quota for employees over 50 in the context of collective agreements.
Failure to comply with that quota can be subject to pecuniary sanctions.

Croatia has
a general rule providing that special privileges granted to older workers are
not deemed to constitute discrimination.

Italy
provides for a financial incentive for the employer by reducing his social
security contributions by 50% in case he employs a worker not younger than 50
years and unemployed for at least 12 months.

Hungary provides
for restrictions on employers' ability to terminate employment contracts of
workers within the 5 years preceding their retirement. In addition,
heavy physical work for workers over 45 is prohibited. Employers who offer jobs
to workers over 50 years are subsidised.

Malta has
set financial incentives for employers hiring those over 40 and it offers
special training courses for unemployed over 40 years of age.

Poland, in
2012, repealed provisions which obliged or allowed an employer to terminate
employment only on the grounds of an employee reaching pensionable age.

Romania provides
financial support for employers (tax incentives) hiring unemployed workers over
45.

Slovenia
provides special protection for workers over 55, for example, an option to work
part-time and no obligation to work nights. Also, the
law provides for special protection of workers over 55 (men) or 51 (women),
with regard to the length of working hours.

2.
Exceptions under Article 6(2) of the Directive as regards age requirements in
occupational social security schemes

21 Member States have introduced a
general exception clause in occupational social security schemes allowing for a
difference in treatment based on age.[129]  Of those,
8 Member States explicitly report on age being used as a criterion for
actuarial calculations in occupational social security schemes.[130]

Article
6(2) of the Directive allows for a difference of treatment on grounds of age in
occupational social security schemes in terms of the fixing of ages for
admission or entitlement to benefits and the use of age criteria in actuarial
calculations, if this does not result in discrimination on grounds of sex.

5
Member States have no exception clause in place, namely France, Lithuania, Malta, Portugal and Slovenia.[131]

21
Member States have reported that they have a general exception clause in their
national laws for difference in treatment on grounds of age in occupational
social security schemes, corresponding with Article 6(2) of the Directive. Not
all of those Member States have given further details as to the content of
these exceptions.[132]
Of those, 8 Member States have reported that they explicitly allow for the use
of actuarial factors in occupational social security schemes.[133]

Bulgaria reports
of different age requirements regarding access to social insurance schemes for
some groups of civil servants. Estonia reported that it has no
occupational social security schemes in place.

3.
Particular difficulties in implementing Article 6 of the Directive

In general, most
Member States did not report any particular difficulties in implementing or
applying Article 6 of the Directive. However, many Member States
report that national case-law is evolving around age issues.

Denmark,
Germany
and Ireland observed that in general the most problematic cases
concerning Directive 2000/78/CE at national level deal with questions of age, Germany particularly referring to age-differentiated amounts of severance pay and
insolvency–proof entitlements to an occupational pension.

In the
United Kingdom, the national default retirement age allowing employers to
force an employee to retire was challenged before the Court of Justice,[134]
which resulted in the abolition of a default retirement age as of April 2011.

4.
Comprehensive screening of laws or collective agreements in order to detect
potential age discrimination in areas covered by the Directive

6 Member States carried out such
screenings or report of special procedures to follow up on possible age
discrimination.[135]
In Germany, pension schemes and collective agreements are checked
regularly. 15 Member States did not carry out any comprehensive screenings.[136]
5 Member States did not reply to the question.[137]

In Denmark, in connection with the implementation of the Directive, a review of the
applicable legislation was carried out in the Government in order to ensure
compliance with the prohibition of age discrimination. As a result, a law
providing for higher compensation in case of the unreasonable dismissal for
people over the age of 30 years was identified as needing further assessment.

Germany
has
not carried out a survey but reports that pension schemes and collective
agreements are checked regarding compliance with Directive 2000/78/EC whenever
the occasion arises, for example in the context of court actions.

Ireland
refers to an assessment carried out before adapting its laws in order to ensure
compliance with Directive 2000/78/EC.

In Estonia, a study on the situation of older workers in the employment market was commissioned
and carried out by the University of Tartu[138] providing
for advice as to how to keep older workers in the employment market.

France
regularly presents measures linked to age in its annual report about collective
agreement negotiations. It reported that in order to receive the necessary
agreement from the responsible Ministry a collective agreement has to provide,
among other things, for a numerical target as regards maintaining posts for or
recruitment of older persons.

The
Netherlands published a comprehensive report[139]
by all ministries concerned in order to have an overview about all age limits
applying in their respective areas. In case age limits applied, a short
explanation to justify the measure was included in the report.

Poland refers
to a survey of laws carried out in 2012 in the context of adapting pensionable
age in social security pensions and the intention to raise and also to equalise
the pensionable age of women and men by 2040.

Sweden
reported that it had carried out a detailed review of age limits in labour law
legislation before adopting new laws in order to ensure compliance with the
prohibition of age discrimination in Directive 2000/78/EC. The Government came
to the conclusion that statutory age limits should not be considered age
discrimination.

5.
Non-mandatory and mandatory retirement age

18 Member States have abolished
mandatory retirement ages in the context of transposing the Directive or had
done so already before.[140] 
8 Member States have a mandatory retirement age in place.[141]
The mandatory retirement age as well as pensionable age in Member States that
have abolished mandatory retirement varies between 60 and 70 years. 2 Member
States have not replied to this question.[142]

General
remarks:

Mandatory
retirement[143]
applies where a worker, after having reached a certain age, is not any more
allowed to work. There is a general tendency among Member States to raise
mandatory retirement ages where they exists or to encourage working longer by
incentives as regards special pension increases (Italy). The age of 65 years
seems to be the general guideline for Member States, some of them going beyond.
This tendency to retire around 65 years of age can also be seen in the Member
States which do not have a mandatory retirement age in place.

Non-mandatory
retirement/pensionable age:

Some
of the 18 Member States that have abolished mandatory retirement age
(see above) have in place a general pensionable age which is linked to the
right to receive statutory pension entitlements.

In
the Czech Republic, the current pensionable age is 60 for men and
between 53 and 57 years of age for women depending on how many children they
have had.

In Denmark, pensionable age is set at 67.

In Ireland, pensionable age is set at 65.

In Greece, general pensionable age is currently set at 62 provided that that person has
spent 40 years in employment; otherwise it rises accordingly up to 67.

As of
2012, in Spain, the mandatory retirement clauses provided for in many
collective agreements in the past have been declared legally null and void in
the context of reforming the labour market.

In
France, the general pensionable age is between 65 and 69. At the age of
70 years, an employer may dismiss an employee on grounds of age without this
being considered unlawful age discrimination.

In Latvia, general pensionable age is currently 62 but will be raised gradually until
it reaches 65 in 2025.

In Luxembourg, the general pensionable age is 65. However, the worker may decide to
stay in his or her post until the age of 68. Employment contracts are allowed
to provide for automatic termination at the (pensionable) age of 65.

In Slovakia, workers have a general right to retire at the age of 62.

In Sweden, the right to the basic pension scheme – “guaranteed pension” – requires the
beneficiary to be 65.

In
some Member States, pensionable age is different for men and women, which is
allowed in statutory pension schemes pursuant to Directive 79/7/EEC.[144]
In this sense, gender-differentiated general pensionable ages in
statutory pension schemes are in place currently in Italy, Poland, Slovenia, Slovakia and UK.

In Italy, the pensionable age for men and women is currently being gradually equalised:
in 2018 men and women will be able to retire at 66 (but may continue to work
until 70).

In Poland, the general pensionable age is 60 for women and 65 for men.

In Slovenia, the general pensionable age is 65 and in some specific circumstances it
is  63 for men and 61 for women.

In Slovakia, pensionable age is rising from 53 to 57 for women and from 60 to 62 for
men. In 2014, it will be set at 62 years for both women and men.

Finland has
a flexible pensionable age of between 63 and 68 for both sexes.

In
the United Kingdom, state pension is payable at 60 for women and 65 for
men, although this will be equalised at 65 by November 2018 (and gradually
increased to 68 by 2046).

Mandatory
retirement age in detail:

In Germany, statutory pension schemes are based on a standard retirement age at 65
which as of 2012 is rising to 67 depending on birthdates.

In Ireland, the statutory mandatory retirement age is 65. However, individual
employment contracts may provide for a lower age of retirement. Also, for
positions established by law (i.e. public servants) a mandatory retirement age
(normally 65) is often set.

In Croatia, there is a mandatory retirement age of 65. However, under certain
conditions employment can be extended.

Hungary
provides for a mandatory retirement age in statutory social security pension
schemes, which is currently 62 and will rise to 65 by 2022.

Malta's
mandatory retirement age is currently 60 and will increase to 65 by 2026.

In Portugal, the mandatory retirement age is 70.[145]

Some
Member States provide for gender-differentiated mandatory retirement ages
allowed under Directive 79/7/EEC. These are in place in Lithuania, Austria and Romania. However, Lithuania and Austria have adopted legislation to equalise
pensionable age for women and men in statutory pension schemes

In Lithuania , currently the mandatory retirement age is 60 for women and 62 for men.
As of 2026, the general mandatory retirement age will be 65.

In Austria, currently the mandatory statutory retirement age is 60 for women and 65 for
men. This age will be equalised by 2033, when the pensionable age will be 65
for both sexes.

Romania
currently provides for a gender-differentiated statutory retirement age of 59
for women and of 63 for men, which will be gradually increased to 63 for women
by 2030 and to 65 for men by 2015.

6.
Mandatory retirement age for specific professions (predominantly civil servants)

23 Member States have a set of mandatory
retirement rules in place for specific professions, mostly for the civil
service. However, Denmark, Luxembourg, Malta and Sweden have not adopted additional rules for the mandatory retirement age for specific
professions. In Spain, civil servants are obliged to retire at the age
of 65, but may request an extension until the age of 70.

Many
Member States provide for a mandatory retirement age for public servants. The
highest mandatory retirement age for civil servants is currently in place in
Italy and Portugal where it is set at 70.

In Germany
and Greece, retirement for civil servants is obligatory at the age of 67.[146]

The
majority of Member States which have a mandatory retirement age in place have
set it around 65 for the general civil service and at an earlier age for
certain particularly challenging positions (e.g. police, prison officers, etc).

In Belgium, Ireland,[147]
France,[148]
and Austria there is a mandatory retirement age of 65 for civil
servants. In addition Ireland sets an earlier mandatory retirement age
of 60 for the  national police.

Bulgaria has
a mandatory retirement age of 60 for certain positions in the civil service and
of 65 for judges and prosecutors.

In
the Czech Republic, there is a mandatory retirement age for judges and
public prosecutors, whose office is terminated 'ex lege' at the end of the year
in which they reach 70 years of age.

In Denmark contracts and collective agreements can set a mandatory retirement age.
However, Denmark has no register of the relevant legal provisions and
collective agreements in this respect and underlines that in public
administration there is in general no mandatory retirement age.[149]

In Estonia police officers have to retire between the ages of 55 and 60 and prison
officers have to retire between the ages of 58 and 60.

In Spain, civil servants are required to retire at the age of 65 but may request to
continue working in which case they may continue until the age of 70. Judges,
prosecutors, notaries, bailiffs or university professors may continue working
until the age of 70.

In Croatia, the mandatory retirement age for judges and public prosecutors (including
their deputies) is 70.

In Italy, retirement is mandatory for civil servants at the age of 70. [150]

Cyprus provides
for a mandatory retirement age of 63 for civil servants and of 60 for teachers.

In Latvia,
which otherwise has no general mandatory retirement age, and in
Lithuania, judges have a mandatory retirement age of 70 and 65 respectively
which in Lithuania also applies to diplomats, bailiffs and prosecutors.[151]

In Luxembourg, there are some exceptions from the
general pensionable age of 65 for the public sector, in that staff may retire
early. In general, civil servants may retire at the age of 60 years after 30
years of service or at 57 years after 40 years of service. In addition, members
of the police force may retire between the age of 55 and 60.

In Hungary, there is currently a mandatory retirement age for civil servants of 62
which will gradually increase to 65 by 2022. However,
a civil servant may request to continue working beyond this age and the
employer may agree to that request if it is in the official interest until that
civil servant reaches the age of 70.

The Netherlands has, among others, a specific retirement age of 56 for pilots,[152]
of 65 for notaries and a lot of detailed regulations for retirement ages for
specific professions.[153]

In Poland, border guards have a specific retirement age of between 55 and 60
which is calculated according to grade.

Romania has
a mandatory retirement age of 65 for physicians, nurses, midwives, teachers,
male lawyers and research staff.[154]
Female lawyers have to retire at 60 years of age.

Slovenia has
regulated mandatory retirement age in sectorial laws, like for example the
Judicial Service Act setting the retirement age for judges at 70.

In Slovakia, university teachers have a mandatory retirement age of 70, whereas for
judges and prosecutors it is 65 and for police officers it is 55.

Finland[155] has
a mandatory retirement age of 65 for some groups of public servants, for
example judges and university professors.

The United Kingdom has set a specific mandatory retirement age for national air traffic
staff of 60, for fire fighters of 65, for judges of 70 years and for the police
of 55.

7.
Minimum/maximum entry ages for certain professions

27 Member States have provisions in
place specifying a minimum or maximum entry age for special professions, mostly
in the public service, or for allowing for the adoption of such provisions (Italy). There is a large diversity between Member States as to the prevalence of such
requirements. Member States, in their replies to the questionnaire, often
mentioned some examples. Malta has no such provisions in place at
all.

Article
6 (1) (b) and (c) of the Directive allows for maximum and minimum conditions of
age for recruitment. For maximum recruitment ages this is allowed on condition
that the provisions are based on training requirements of the post in question
or the need for a reasonable period of employment before retirement. Below,
some examples given by Member States are mentioned

Belgium has a
lot of special provisions in place. As an example, Labour Court judges must be
at least 25 years old, judges in the Labour Courts of Appeal and lay judges
sitting in Commercial Courts must be at least 30 years old, 'juges de paix'
(lowest-level judges) and Police Tribunal judges must be at least 35 years old
and Constitutional Court judges must be at least 40 years old when they take
office.

Germany[156] has
set a plethora of exceptions which includes a maximum entry age for federal
police staff depending on the position (between 28 and 42 years). Furthermore,
in general, for public service a candidate aged over 40 has to be approved by
the Federal Ministry of Finance. A Federal judge must have a minimum entry age
of 40. The Federal Ombudsman for data protection must have a minimum entry age
35.

In Estonia, a Chief Public Prosecutor has to be at least 21 years old. Otherwise, there
are very few age-related requirements in place. For instance, for judges there
is no minimum or maximum entry age.

In Ireland, several minimum and maximum entry ages apply. For the national
police it is set at between 18 and 35 years.

In Greece, exceptions include a maximum entry age of 40 for court bailiffs and of 35
for staff of the Foreign Service.[157]
Diplomats have to retire between 60 and 65 depending on years of effective
service.

In France, aeroplane pilots and police force commissioners must be at least 35 when they
start. For magistrates, the maximum entry age ranges between 31 and 48 years
depending on prior professional experience and the form of competition taken
for a specific post. Otherwise, France has repealed many of its age-related
limitations to public service in recent years.

Croatia has
a maximum age requirement of 30 for entry into the police and fire services.

In Italy, each public body in principle is free to
provide a specific age limit by issuing a special decree. Currently, for judges
and prosecutors there is a maximum entry age of 40 and a minimum of 21. For
notaries the minimum entry age is 21 and the maximum is 50. For fire-fighters
the minimum entry age is 18 years and the maximum is 30. For diplomats, an
maximum entry age of 35 exists.

Latvia has
set the minimum entry age for judges at 30 and for bailiffs, notaries and
prosecutors at 25. It has minimum entry age of between 18 and 35 for the police
service.

In
Lithuania there is a minimum entry age for civil servants of 18,
which is modified for the custom service to 21. There are other exceptions in
place for ship captains, pilots and state
services (judges, bailiffs, notary, members of parliament, members of municipal
councils, etc.).

In Luxembourg there is a minimum entry age of 25 for judges, prosecutors and notaries.
The maximum entry age for fire-fighters is 28.

In Hungary there is a minimum entry age for judges of 30; for judges of the
Constitutional Court of 45; for the armed section of the police, the prison
services and the customs service of 35.

In
the Netherlands there is a maximum entry age of 35 for fire-fighters and
a minimum entry age of 18.

In Austria,
a professional fire fighter in Vienna needs to be at least 20 years of age to
start working and can no longer be recruited in this profession after the age
of 26.

In Poland there is a maximum entry age of 35 for border guards. For judges, there is a
minimum entry age of between 29 and 40 (depending on the level of court). For
prosecutors and notaries there is a minimum entry age of 26.

Portugal has
set certain maximum entry limits for police staff.

Romania has
set a minimum entry age of 18 for a security guard.

In Slovenia there is a minimum entry age of 30 for judges.

Slovakia has
various exceptions including a minimum entry age of 30 for judges, of 25 for a
prosecutor and of 40 for the general prosecutor.

Sweden has
very few age requirements in place. Also, maximum age limits are few. But, for
instance a pilot should not be older than 23 years old when he or she starts the
training.

In the
United Kingdom there are various exceptions including minimum entry ages
of 18 for pilots, fire-fighters, betting-office managers, bus drivers and
croupiers; of 21 for train drivers and of 18-21 for flight attendants.

8.
Derogations for armed forces

All Member States have made age-related
derogations or special age-requirements for the armed forces, mostly as regards
retirement age and specific entry age conditions. 11 Member States have
reported that they have general exemptions from the ban on age-related
discrimination for the armed forces,[158] some of
them without giving further details as to any specific age requirements in that
context.

The
Directive, in Article 3 (4), allows Member States to provide for a general
exemption on the ground of age in the armed forces. In addition, Article 6 (1)
(b) and (c) of the Directive allows for minimum and maximum ages for
recruitment and in relation to the latter this is expressly allowed in order to
fulfil the need for a reasonable period of employment before retirement.

The Czech Republic, Denmark, Cyprus, the Netherlands, Slovakia and the United Kingdom allow for a general exemption from the ban on age-related discrimination
for the armed forces without having given further details as to any specific
age requirements in this context.

Belgium has
set a general maximum entry age for the armed forces of 34.

Bulgaria has
set maximum entry age limits of between 32 and 40, depending on the grade, and
mandatory retirement between 45 and 60, again depending on the grade.

Germany has
made a general exemption from the ban on
age-related discrimination for the armed forces in order to set specific
age-requirements for its military staff.

Estonia has
set a mandatory retirement age of between 50 and 60 for its armed forces and a
minimum entry age for higher and senior officials of 21 (for instance a maximum
entry age of 30 for military court secretaries).

Ireland has
made an explicit derogation as to age discrimination for the armed forces.
There are maximum entry ages set for the Army
and Air Corps of 25, for the Naval Service of 27 and for the Air Corp
Apprenticeship of 19. There is a mandatory retirement age of between 50 to 56
depending on grade.

Greece has
in place a general derogation and applies, for example, a maximum entry age of
27 to 35 for military judges and of 30 for military court secretaries.

In Spain the maximum entry age varies between 20 and 36, depending on the grade of the
position sought and the qualifications required.

France applies,
depending on grade, a mandatory retirement age of between 55 and 62 to its
military staff.

In
Croatia, a general exemption applies. A person can be admitted to
active service as a soldier if not older than 27.

In Italy, the Decree transposing the Directive does not affect the validity of special
rules presently in force for the armed forces in relation to age. Italy has set an entry age for military schools of between 15-17 for general education and
of 17 -26 years for marshals.

Latvia
applies a mandatory retirement age of between 45 and 60 for military staff in
active service and of 65 for reserve staff and maximum entry ages of 27, 35 or
40 years depending on the seniority for admission to military education
establishments.

In Lithuania , reserve and active military service ends at the age of 55. There are
also maximum entry ages in place depending on the grade.

In Luxembourg there is a maximum entry age of 24 for an army soldier.

Hungary
applies a maximum entry age of 47 to its military service.

Malta has
adopted a general exemption from the prohibition of age discrimination in its
armed forces. It has set maximum entry ages for the armed forces of between 25
and 30.

In
the Netherlands a general exception clause applies as regards age
discrimination in the armed forces.

In Poland the mandatory retirement age for professional soldiers is 60 and under
certain conditions is 63.

In Portugal the mandatory retirement age for military staff is 65.  The maximum entry
age is between 24 and 30 for contract staff and permanent officers. For the
navy or air force the maximum entry age is set at 32 and 33 respectively.

Romania has
set a maximum entry age of 35 for active military sub-officers and of 28 for
entrance exams leading to vocational military training.

Slovenia has
set maximum entry ages of between 25 and 30 depending on the position sought.

In Finland, although there is no derogation from the provisions of the national
anti-discrimination law in place, age-related differential treatment is not
expressively prohibited for military staff.

Sweden has
not provided for any exemptions to the applicability of the age-related
anti-discrimination laws but has special age-requirements in place.

III.
Conclusions

The
Directive has led to changes in the Member States as regards awareness around
issues of age discrimination. A growing body of national case-law and of
case-law of the Court of Justice of the European Union has clarified various
issues.

As
regards national legislation, most of the age-related changes in recent years
have taken place around retirement age and around specially targeted measures
for younger and older workers.

The
vast majority of the Member States have decided to abolish mandatory retirement
ages in order to improve the sustainability of their social security systems.
This might also help to change stereotypes as regards the performance of older
workers and to make the best use of their skills.

High
unemployment among younger and older workers together with the economic crisis,
longer life expectancy and demographic changes [have led to special protection
and] have made it necessary to provide for special measures to keep or
reintegrate these workers in the employment market and to encourage longer
working lives.

Recent
research on the work performance of older employees shows that employers are
generally reticent to employ older workers although their performance can
increase with age, particularly where work requires specialist knowledge[159]and
their productivity and reliability is generally better than younger workers.[160]

Therefore,
in the area of age discrimination the Directive and the national implementation
measures can be used to further assist the removal of remaining prejudices and
discrimination. Together with developing national and EU case-law and
awareness-raising initiatives this will help to further clarify the
circumstances in which difference of treatment based on age may be justified.

[1]               This guidance is partially based on a comprehensive
guide, How to Present a Discrimination Claim: Handbook on seeking remedies
under the EU Non-discrimination Directives, July 2011, prepared for the
Commission by Lilla Farkas from the European Network of Legal Experts in the Non-discrimination
Field, available at:  http://ec.europa.eu/justice/discrimination/document/index\_en.htm.

[2]               For a more detailed analysis of the case-law, see the
report prepared to the Commission by Colm O'Cinneide from the European Network
of Legal Experts in the non-discrimination field: “The Evolution and Impact of
the Case-Law of the Court of Justice of the European Union on Directives
2000/43/EC and 2000/78/EC”, November 2012, available at:

                http://ec.europa.eu/justice/discrimination/document/#h2-7

[3]               See also the report prepared to the Commission by
Olivier de Schutter from the European Network of Legal Experts in the
non-discrimination field: "The Prohibition of Discrimination under
European Human Rights Law. Relevance for the EU non-discrimination directives –
an update", available at: http://ec.europa.eu/justice/discrimination/files/the\_prohibition\_of\_discrimination\_under\_european\_human\_rights\_law\_update\_2011\_\_en.pdf

[4]               Case C-144/04, Mangold [2005] ECR I-9981, paragraphs
66-68.

[5]               Idem, paragraphs 74-78.

[6]               Case C-427/06, Bartsch [2008] ECR I-7245, paragraphs
16 and 17. See also Case C‑147/08, Römer [2011] ECR I-3591, paragraphs 63
and 64.

[7]               Case C-555/07, Kücükdeveci [2010] ECR I-365,
paragraphs 23 - 25.

[8]               Joined Cases C-297/10 and C-298/10, Hennigs [2011]
ECR I‑7965, paragraph 78.

[9]               Cases C-159/10 and C-160/10, Fuchs and Köhler [2011]
ECR I-6919, paragraph 62, and Case C‑141/11, Hörnfeldt, judgment of 5 July
2012, nyr, paragraph 37.

[10]             Joined Cases C-297/10 and C-298/10, Hennigs, paragraph
78.

[11]             Case C-303/06, Coleman v Attridge Law [2008] ECR I-5603.

[12]             Idem, paragraphs 50-51.

[13]             English v Thomas Sanderson Blinds Ltd [2008] EWCA Civ
1421.

[14]             Case C 246/09, Bulicke [2010] ECR I-7003.

[15]             This provision is identical to Article 7(3) of
Directive 2000/43/EC.

[16]             Case C 246/09, Bulicke, paragraphs 25-26.

[17]             In case of wrongful dismissals and actions to declare a
fixed-term contract invalid. Idem, paragraph 31.

[18]             Case C 246/09, Bulicke, paragraphs 37- 42.

[19]             Case C-415/10, Meister, judgment of 19 April
2012, nyr.

[20]             The Court also ruled on Article 19(1) of Directive
2006/54/3C on equal treatment of men and women in employment and occupation,
which is identical to the abovementioned provisions of the anti-discrimination
Directives.

[21]             Case C-415/10, Meister, paragraphs 46-47.

[22]             Judgment of the Supreme Court of 1 October 2008 in Case
No T 2224-07 NJA 2008, p. 915 (Ombudsman against Ethnic Discrimination v Escape
Bar & Restaurang AB).

[23]             Case C-54/07, Firma Feryn NV [2008] ECR I-5187.

[24]             Another case regarding racial and ethnic origin
discrimination was Belov, case C-394/11, judgment of 31 January 2013. It
concerned the practice in two districts of the Bulgarian city of Montana, of attaching electricity meters to electricity poles at a height of 7 m, whilst
elsewhere electricity meters are installed at a maximum height of 1.70m, such
that they are accessible for consumers. The districts in question are inhabited
primarily by people belonging to the Roma community and the question therefore
arose on whether this practice constituted indirect discrimination based on
ethnic origin. Advocate General suggested that there was a prima facie case of
indirect discrimination, although the measure could eventually be justified,
under certain conditions, if it prevented fraud and abuse and contributed to
ensuring the quality of the electricity supply in the interest of all
consumers. However, the CJEU ruled that the Bulgarian Commission for Protection
against Discrimination, which had referred the case to the CJEU, was not a ‘court
or tribunal’ within the meaning of Article 267 TFEU and that therefore the case
was inadmissible.

[25]             Case C-391/09, Runevič-Vardyn [2011] ECR I- 3787,
paragraphs 45, 47 and 48. The Court noted that, in the preparatory work
relating to Directive 2000/43/EC, the Council did not accept an amendment
proposed by the European Parliament which would extend the scope of the
Directive to ‘the exercise by any public body, including police, immigration,
criminal and civil justice authorities, of its functions’ - idem, paragraph 46.

[26]             Council Directive 2003/109/EC of 25 November 2003
concerning the status of third-country nationals who are long-term residents,
OJ L 16, of 23.1.2004, p. 44.

[27]             Case C‑571/10, Kamberaj, judgment of 24 April 2012, nyr, paragraphs
48-50 and 93.

[28]             Judgment of the ECtHR of 13 December 2005, in case Timishev
v. Russia, applications 55762/00 and 55974/00, paragraph 55. Since
Directive 2000/43/EC does not provide any definition of “racial and ethnic
origin”, the definitions of the ECtHR can serve as a point of reference for the
interpretation of the Directive.

[29]             Judgment of the Grand Chamber of the European Court of
Human Rights of 13 November 2007 in case D.H. and Others v. the Czech
Republic, application 57325/00.

[30]             Idem, paragraphs 196-210. The Court also found a
discrimination contrary to Article 14 of the Convention combined with Article 2
of its Protocol No.1 in other cases regarding the education of Roma children, such
as: Sampanis and Others v. Greece, application 32526/05, judgment of 5
June 2008 (see in particular paragraphs 77-97 with an analysis similar to the
judgment in D.H. and Others v Czech Republic); Oršuš and Others v. Croatia,
application 15766/03, judgment of 16 March 2010; Sampani and Others v.
Greece, application 59608/09, judgment of 11 December 2012; Horváth and
Kiss v. Hungary, application 11146/11, judgment of 29 January 2013,
concerning the complaints of two young Roma that their education in schools for
the mentally disabled was the result of misplacement and discriminatory, the Court
used again an analysis similar to that of D.H. and Others v Czech Republic
and found that the applicants had been isolated and had received an education
which made their social integration difficult), paragraphs 109-129; and Lavida
and Others v Greece, application 7973/10, judgment of 28 May 2013.

[31]             Idem, paragraphs 81-91, and 187.

[32]             The Hague District Court 11 October 2010,
LJN: BN9971; BN9983; BO0019; BO0022.

[33]             National court decision no. Pfv.IV.20.037/2011/4,
delivered on 29 June 2011.

[34]             Decision of the District Court in Prešov of 5 December 2011
(ref. No 25C 133/10-229), and decision of the Regional Court in Prešov of 30
October 2012 (ref. No 20Co 125/2012, 20Co 126/2012).

[35]             Judgment of the Jelgava Court of 25 May 2006 in case No
C15066406.

[36]             Civil Decision No 6363/02.11.2011 by the Court of
Appeal of Bucharest, Division 8 for Administrative and Fiscal Cases.

[37]             Judgment of Gävle District Court of 16 June 2006 in
Case No T 2285-05, Ombudsman against Ethnic Discrimination v Tahsin Akmese
[Lilla Kungshallen restaurant].

[38]             Eweida and Others v. The United Kingdom,
applications 48420/10, 59842/10, 51671/10 and 36516/10, judgment of 15 January
2013.

[39]             Idem, paragraphs 89-106.

[40]             Idem, paragraph 43.

[41]             Judgment of 24.2.2009 (9ObA 122/07t).

[42]             As mentioned before, there is no case-law of the Court
of Justice of the European Union on religion or belief, but the case-law of the
European Court of Human Rights as regards Article 9 of the European Convention
of Human Rights tends to confirm that “belief” is meant to refer to belief of
spiritual or philosophical nature. See, for example, the judgments of the Court
in Campbell and Cosans v. United Kingdom (applications 7511/76 and 7743/76,
judgment of 25 February 1982, paragraph 36); Metropolitan Church of
Bessarabia and Others v. Moldova (45701/99, of 13 December 2001, paragraph
114) and Moscow Branch of the Salvation Army v. Russia (72881/01, of 5
October 2006, paragraphs 57-58).

[43]             Case C-13/05, Chacón Navas [2006] ECR I-6467,
paragraphs 44-47.

[44]             Idem, paragraphs 54–57.

[45]             Ibidem, paragraphs 39-45.

[46]             Joined Cases C-335/11 and C-337/11, Ring and Werge,
judgment of 11 April 2013, nyr, paragraphs 36-47.

[47]             Idem, paragraph 44.

[48]             The UN Convention
was signed by the then European Community on 30 March 2007. The Council adopted
the decision for conclusion of the Convention on 26 November 2009 (Council
Decision 2010/48/EC, OJ L 23 of 27/1/2010, p.35) and the European Union became
a Party to it on 22 January 2011.

[49]             Joined Cases C-335/11 and C-337/11, Ring and Werge,
paragraph 37.

[50]             Idem, paragraph 45.

[51]             Case C-312/11, Commission v Italy, judgment of 4 July 2013, nyr, paragraphs 61-68.

[52]             Joined Cases C-335/11 and C-337/11, Ring and Werge,
paragraph 68 and 92.

[53]             Case C 152/11, Odar, judgment of 6 December
2012, nyr, paragraphs 65-72.

[54]             Attunda District Court T 2705-11 (Swedish Association
of Graduates in Business Administration and Economics (Civilekonomernas
Riksförbund) and J.T.  v OptoSweden Aktiebolag.

[55]             Case C-267/06, Tadao Maruko [2008] ECR I-175.

[56]             Article 3(3) and recital 13.

[57]             Case C-267/06, Tadao Maruko, paragraphs 56-57
and 61. As to recital 22 of Directive 2000/78/EC, which states that the latter
“is without prejudice to national laws on marital status and the benefits
dependent thereon”, the Court pointed out that, as “pay”, the pension was
covered by the scope of the Directive and although civil status and related
benefits are Member States’ competence, in the exercise of that competence they
must comply with EU law, including the principle of non-discrimination, idem,
paragraphs 59-60.

[58]             Case C-267/06, Tadao Maruko, paragraphs 67-73.

[59]             Case C-147/08, Römer.

[60]             Idem, paragraph 52.

[61]             Joined Cases C-124/11, C-125/11 and C-143/11, Dittrich,
Klinke and Müller, judgment of 6 December 2012, nyr.

[62]             Idem, paragraphs 36-42.

[63]             Case C-81/12, Asociaţia ACCEPT (“Becali”),
judgment of 25 April 2013, nyr.

[64]             This provision is substantially identical to Article
8(1) of Directive 2000/43/EC.

[65]             Mr Becali made his statements on 13 February 2010 and
he had sold his shares in the club on 8 February 2010, although he only
registered that sale on 23 February 2010.

[66]             The Consiliul Naţional pentru Combaterea
Discriminării (National Council for Combatting Discrimination) is the Race
Equality Body for the purposes of Article 13 of Directive 2000/43/EC, but its competences
include also other grounds of discrimination prohibited under Romania law such as sexual orientation.

[67]             Case C-81/12, Asociaţia ACCEPT, paragraph 72.

[68]             Case C-411/05, Palacios de la Villa [2007] ECR
I-8531, paragraphs 42 – 47, confirmed, for example, in Case C-388/07, Age
Concern England [2009] ECR I-1569, paragraph 25.

[69]             Case 341/08, Petersen [2010] ECR I-47,
paragraphs 62-64.

[70]             Case C-447/09, Prigge [2011] ECR I- 8003,
paragraph 64.

[71]             Case C-447/09, Prigge, paragraph 56. See also Petersen,
paragraph 60.

[72]             Case C-229/08, Wolf [2010] ECR I-1, paragraphs
41 and 44.

[73]             Case C-447/09, Prigge, paragraphs 69 to 76.

[74]             Miriam O'Reilly v BBC and Bristol Magazines Ltd,
Judgment of the Employment Tribunal, Case number 2200423/2010.

[75]             Case C-144/04, Mangold, paragraph 63.

[76]             Case C-411/05, Palacios de la Villa, paragraph
68.

[77]             Case C-411/05, Palacios de la Villa, paragraph
69.

[78]             Case C-411/05, Palacios de la Villa, paragraph
57, Cases C-159/10 and C-160/10, Fuchs and Köhler,  paragraph 39, Case
C-141/11, Hörnfeldt,  paragraph 24, and Case C-286/12 Commission v.
Hungary, paragraph 58.

[79]             See, for example, Joined Cases C-250/09 and C-268/09, Georgiev
[2010] ECR I-11869 paragraphs 43 and 44.

[80]             Case C-388/07, Age Concern, paragraphs 34 and 43.

[81]             Case C-45/09, Rosenbladt [2010] ECR I-9391, paragraph
40.

[82]             Cases C-159/10 and C-160/10, Fuchs and Köhler,
paragraph 44.

[83]             Case C-411/05, Palacios de la Villa, paragraphs 70
and 71.

[84]             Case C-388/07, Age Concern, paragraph 51.

[85]             Idem.

[86]             Case C-388/07, Age Concern, paragraph 46.

[87]             Case C-555/07, Kücükdeveci, paragraph 39.

[88]             Case C-411/05, Palacios de la Villa, paragraph
65.

[89]             Case C-144/04, Mangold, paragraph 59.

[90]             Case C-141/11, Hörnfeldt, paragraph 29.

[91]             Case C-88/08, Hütter [2009] ECR I-5325,
paragraphs 40-43.

[92]             Case C-341/08, Petersen, paragraph 68.

[93]             Joined Cases C-250/09 and C-268/09, Georgiev,
paragraph 45.

[94]             Case C-286/12 Commission v. Hungary, paragraph 62
and, concerning prosecutors, Cases C-159/10 and C‑160/10, Fuchs and Köhler,
paragraph 49.

[95]             Case C-411/05, Palacios de la Villa, paragraph 53.

[96]             Case C-411/05, Palacios de la Villa, paragraph 69; Case
341/08, Petersen, paragraph 65; Case C-45/09, Rosenbladt,
paragraph 44; Cases C-159/10 and C-160/10, Fuchs and Köhler, paragraph
50; Case C‑141/11, Hörnfeldt, paragraph 28, and Case C-286/12, Commission
v. Hungary, paragraphs 62-63.

[97]             Case C-411/05, Palacios de la Villa, paragraph 69; Case
C-45/09, Rosenbladt, paragraph 44; and Case C‑141/11, Hörnfeldt, paragraph
28.

[98]             Case C-45/09, Rosenbladt, paragraphs 43-45. See also Cases C-159/10 and C-160/10, Fuchs and Köhler,
paragraph 50 and Case C‑286/12, Commission v. Hungary, paragraphs 62-63.

[99]             Joined Cases C-250/09 and C-268/09, Georgiev, paragraph
46 and Cases C-159/10 and C-160/10, Fuchs and Köhler, paragraph 49.

[100]            Cases C-159/10 and C-160/10, Fuchs and Köhler, paragraph
50 and Case C-286/12, Commission v. Hungary, paragraphs 62-63.

[101]            Joined Cases C-250/09 and C-268/09, Georgiev, paragraphs
47, 48 and 53. See also, in the context of the examination of the
proportionality of the measure, Case C-388/07, Age Concern, paragraph 52
and Joined cases C‑159/10 and C-160/10, Fuchs and Köhler, paragraphs 76
to 83.

[102]            Case C-88/08, Hütter, paragraph 47 and Joined
Cases C-297/10 and C-298/10, Hennigs, paragraph 72.

[103]            Case C-499/08, Andersen [2010] ECR I-9343, paragraphs
27-29. Likewise, in Odar (Case C‑152/11, paragraph 44), preventing
compensation on termination of employment from being claimed by persons who are
not seeking new employment, but will receive an old-age pension, was also
considered a legitimate aim. The case concerned a redundancy plan which granted
to workers older than 54 years of age a smaller amount of compensation as
compared to other workers, that amount decreasing progressively on the basis of
how close they were to obtaining their retirement pension. This case concerned
also indirect discrimination based on disability, see above, section 5.

[104]            Case C-286/12, Commission v. Hungary, paragraphs
59 and 61.

[105]            Joined Cases C-297/10 and C-298/10, Hennigs, paragraphs
90 to 92.

[106]            Case C-447/09, Prigge, paragraphs 58 and 82.

[107]            Joined Cases C-297/10 and C-298/10, Hennigs,
paragraph 70.

[108]            Unless there was a close connection with a previous
contract of employment of an indefinite duration with the same employer, Case
C-144/04, Mangold, paragraph 14.

[109]            Case C-144/04, Mangold, paragraphs 59-65.

[110]            Case C-499/08, Andersen, paragraph 47.

[111]            Case C-45/09, Rosenbladt, paragraph 73 and Case
C-286/12, Commission v. Hungary, paragraph 66.

[112]            Case C-411/05, Palacios de la Villa, paragraphs
73-75.

[113]            Case C-88/08, Hütter, paragraphs 44-50.

[114]            Joined Cases C-159/10 and C-160/10, Fuchs and Köhler,
paragraph 85. See also Case C‑341/08, Petersen, paragraph 53, regarding
Article 2(5) of the Directive.

[115]            Joined Cases C-159/10 and C-160/10, Fuchs and Köhler,
paragraph 86. See also Case C‑341/08, Petersen, paragraph 61.

[116]            Case C-499/08, Andersen, paragraphs 45-47.

[117]            Case C-286/12, Commission v. Hungary, paragraphs
69-74.

[118]            Idem, paragraphs 76-79.

[119]            See, for example, Case C-388/07, Age Concern, Case
341/08, Petersen and Joined Cases C-250/09 and Joined Cases C-250/09 and
C‑268/09, Georgiev.

[120]            Case C-354/13, FOA, acting on behalf of Karsten Kaltoft
v Billund Kommune.

[121]            This annex presents Member
States' provisions as reported by Member States without providing a legal
assessment of their compliance with the Directive. In case the Commission comes
to the conclusion that such a provision is not in line with the Directive it will
take appropriate measures.

[122]            Prepared for the Commission by
Declan O'Dempsey and Anna Beale from the European Network of Experts in the
non-discrimination field, available at: http://ec.europa.eu/justice/discrimination/files/age\_and\_employment\_en.pdf

[123]            This was also underlined by AGE
in its contribution of 5 February 2013, referred to as the ‘Report on Age and
Employment’ available under www.age-platform.eu

[124]            For instance BE and MT.

[125]            As regards caring
responsibilities: Some Member States ensure that workers with caring
responsibilities enjoy special protection(Ireland protects carers with a set of
special provisions,  Poland ensures special protection to parenthood, Rumania
grants special financial benefits to employers employing single parents  and
Slovakia provides for special protection as regards remuneration and dismissal
of persons with carer responsibilities.

[126]            As regards difference of
treatment with regard to Article 6(1) (b) and (c), these will be treated under
point 7 of this annex.

[127]           The aim of this
Directive is to lay down minimum requirements for the protection of young
people at work. The          directive gives legal definitions for the terms
"child", "adolescent", "young person",
"light work", "working time"         and "rest
period" and obliges Member States to take the necessary measures to
prohibit child labour.

[128]            See more
details in this respect on Member State's measures in the Report 'Age and
Employment', page 32-34.

[129]            BE, BG, CZ, DK, DE, IE, EL, ES,
HR, IT, CY,LV, LU, NL, AT, PL, RO, SK, FI, SE and UK.

[130]            BE, DK, IE, HR, IT, CY LU, NL.

[131]            Hungary's answer is not clear in
this respect.

[132]            Only BE, BG, CZ, DK, DE, IE, EL, ES, HR, CY, LV, LU, NL, AT, PL, RO, SK, FI, SE and UK.

[133]            BE, DK, IE, HR, CY, LU and NL.

[134]            Case C-388/07, Age Concern.

[135]            DK, EE, IE, NL, PL and SE.

[136]            BE, BG, CZ, ES  HR, LT, LU, MT,
AT, PT, RO, SK, SL, FI and UK.

[137]            EL, IT, HU, LV and CY.

[138]            'The elderly in the labour
market', 2012, direct link (executive summary in English on page 69): http://www.sm.ee/fileadmin/meedia/Dokumendid/Toovaldkond/uuringud/Vanemaealised\_t%C3%B6%C3%B6turul\_l%C3%B5ppraport.pdf.

[139]            https://zoek.officielebekendmakingen.nl/dossier/28170/kst-28170-28-b1?resultIndex=48&sorttype=1&sortorder=4
 ( in Dutch).

[140]            BG, CZ, DK, EE, IE, EL, ES, FR,
IT, LV, LU, NL, PL, SL, SK, FI, SE and UK.

[141]            DE, HR, HU, LT, AT, PT, RO and
SE.

[142]            BE and CY

[143]            Part 5 of this annex concerns
statutory pension only.

[144]            Council Directive 79/7/EEC of 19
December 1979 on the progressive implementation of the principle of equal
treatment for men and women in matters of social security

[145]            In PT, the retirement age is 65
with the option to increase pension benefits by working up unto the age of 70
years.

[146]            In DE, for police officers under
certain conditions retirement age is 62. In Greece, retirement is obligatory at
67 but can be taken earlier with reduced benefits after having been in service
a certain amount of years. In Greece there are some further exceptions for
special professions.

[147]            Some exceptions apply to police,
pilots (between 60 and 65) and judges (between 70 and 72) or fire-fighters.

[148]            In FR, it will in general slowly
be prolonged to 67 years. However, it is 55 years and will be prolonged to 57
years for non-sedentary categories of workers.

[149]            For instance, mandatory
retirement for teachers at the age of 70 has been abolished.

[150]            IT reports however that for
judges, priests, rural deans and bishops the mandatory retirement age is 70 and
is 60 years for air traffic controllers and fire ambulance staff in some cities.

[151]            Similar rules also apply to
other state officials, particular professions (pilots, ship captains, etc.) as
well as the head of administrations of universities and other educational or
scientific institutions.

[152]            60 years in the event of reduced
working hours.

[153]            The survey with
detailed information is publicly accessible (in NL):    https://zoek.officielebekendmakingen.nl/dossier/28170/kst-28170-28-b1?resultIndex=48&sorttype=1&sortorder=4.

[154]           In some cases, it is possible to
continue working, under certain conditions.

[155]            FI has not replied to this question;
information was taken from the employment report.

[156]            Previously existing age limits
for recruitment to the civil service were abolished in 2009.

[157]            In this respect, the Commission
has opened an infringement case in the past. Also, for lawyers and bailiffs a
maximum entry age of 35 years applies. In this respect the Commission has
contacted the Member State.

[158]            CZ, DK,
IE, EL, FR, HR, CY, MT, NL, SK and UK.

[159]            http://www.securex.be/fr/detail-page/Presse-Les-travailleurs-plus-gs-sont-ils-dpasss-/

[160]            http://www.themenportal.de/unternehmen/jung-und-alt-im-vergleich-wer-zeigt-die-zuverlaessigeren-leistungen-94917

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