CELEX: 62009CC0356
Language: en
Date: 2010-09-16
Title: Opinion of Advocate General Kokott delivered on 16 September 2010. # Pensionsversicherungsanstalt v Christine Kleist. # Reference for a preliminary ruling: Oberster Gerichtshof - Austria. # Social policy - Equal treatment of men and women in matters of employment and occupation - Directive 76/207/EEC - Article 3(1)(c) - National rules facilitating the dismissal of workers who have acquired the right to draw their retirement pension - Objective of promoting employment of younger persons - National rules setting the age conferring entitlement to a retirement pension at 60 years for women and 65 years for men. # Case C-356/09.

OPINION OF ADVOCATE GENERAL
      KOKOTT
      delivered on 16 September 2010 1(1)
      
      Case C‑356/09
      Dr Christine Kleist
      (Reference for a preliminary ruling from the Oberster Gerichtshof (Austria))
      (Social policy – Equal treatment of men and women – Different statutory normal pensionable age for men and women – Discontinuation of the special protection against dismissal under a collective agreement upon reaching the statutory normal
         pensionable age – Dismissal of an employee after reaching the applicable statutory normal pensionable age for women – Discrimination on the grounds of sex in relation to dismissals – Directive 76/207/EEC – Directive 2002/73/EC)
      I –  Introduction
      1.        The Court has dealt time and again with the compulsory retirement of employees who reach the applicable retirement age. From
         the point of view of European Union law, this problem has predominantly been dealt with in recent years in relation to age
         discrimination. (2) In the present case, however, the question of discrimination between male and female employees forms the focal point, as
         was the case almost 25 years ago in Marshall (3) and Beets-Proper. (4)
      
      2.        Dr Kleist, who was employed as chief physician at the Austrian Pensionsversicherungsanstalt, was compulsorily retired at the
         age of 60 by her employer. The basis for this was a provision of a collective agreement under which doctors can be retired
         upon reaching the statutory normal pensionable age. Under Austrian law the normal pensionable age is currently 65 for men
         and 60 for women. 
      
      3.        The Court is now asked to decide whether there is discrimination on the grounds of sex if compulsory retirement for women
         is set at a different age from that for men. In Marshall, a case with very similar facts, the Court accepted that there was discrimination on the grounds of sex. (5) The present case will in particular deal with whether that judgment should also be followed when compulsory retirement is
         used to pursue employment policy objectives. 
      
      4.        Issues relating to the horizontal direct effect of directives or general principles of law, as were recently the subject of
         great debate in the context of Mangold (6) and Kücükdeveci, (7) do not arise in the present case. Rather, this case concerns a classic vertical legal relationship, in which a social security
         institution governed by public law appears as the employer. 
      
      II –  Legal background
      A –    European Union law
      5.        The European Union legal framework for this case is determined by Directive 76/207/EEC (8) – now no longer in force – as amended by Directive 2002/73/EC. (9) (10)
      
      6.        Article 2 of Directive 76/207 provided inter alia as follows:
      
      ‘1.      For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination
         whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.
      
      2.For the purposes of this Directive, the following definitions shall apply:
      
      –        direct discrimination: where one person is treated less favourably on grounds of sex than another is, has been or would be
         treated in a comparable situation;
      
      –        indirect discrimination: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular
         disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified
         by a legitimate aim, and the means of achieving that aim are appropriate and necessary;
      
      …
      8.      Member States may maintain or adopt measures within the meaning of Article 141(4) [EC] with a view to ensuring full equality
         in practice between men and women.’
      
      7.        Article 3(1) of Directive 76/207 provided as follows:
      
      ‘Application of the principle of equal treatment means that there shall be no direct or indirect discrimination on the grounds
         of sex in the public or private sectors, including public bodies, in relation to:
      
      …
      (c)      employment and working conditions, including dismissals, as well as pay as provided for in Directive 75/117/EEC; 
      …’
      8.        In addition, reference should be made to Directive 79/7/EEC, (11) Articles 1, 3 and 4 of which provide that the principle of equal treatment for men and women should also be progressively
         implemented with regard to the Member States’ statutory pension schemes. However, Article 7(1) of Directive 79/7 provides
         inter alia the following exception thereto: 
      
      ‘This Directive shall be without prejudice to the right of Member States to exclude from its scope: 
      (a)      the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences
         thereof for other benefits;
      
      …’
      B –    National law
      1.      Statutory provisions
      9.        Firstly under Austrian law, it is to be noted that Paragraph 253(1) of the General Law on Social Security (Allgemeines Sozialversicherungsgesetz;
         ‘the ASVG’) sets out different normal pensionable ages for men and women: (12)
      
      ‘A male insured person shall be entitled to a retirement pension on attaining the age of 65 years (the normal pensionable
         age), and a female insured person on attaining the age of 60 years (the normal pensionable age), where the qualifying period
         (Paragraph 236) has been complied with.’
      
      10.      This variation in normal pensionable age for men and women is also laid down in constitutional law in Austria. (13) For that purpose, Paragraphs 1 to 3 of the Federal Constitutional Law on Different Pensionable Ages for Male and Female Insured
         Persons (Bundesverfassungsgesetz über unterschiedliche Altersgrenzen von männlichen und weiblichen Sozialversicherten) provide: (14)
      
      ‘Paragraph 1. Statutory provisions which lay down different pensionable ages for males and females covered by statutory social insurance
         are permissible.
      
      …
      Paragraph 3. As from 1 January 2024, the pensionable age for retirement pensions shall be raised for female insured persons by six months
         on 1 January each year until 2033.’
      
      2.      Terms of a collective agreement
      11.      The collective agreement relevant in the present case is Staff Regulations B for Doctors and Dentists employed by Austria’s
         Social Security Providers (Dienstordnung B für Ärzte und Dentisten bei den Sozialversicherungsträgern Österreichs; ‘the DO.B’),
         in the version of 1 October 2005. 
      
      12.      Under the terms of this collective agreement, after a certain length of service doctors employed by Austria’s social security
         providers receive special protection against dismissal, the distinguishing feature of which is that it largely excludes an
         employer’s ordinary right of termination. The term ‘protected from dismissal’ is also used in relation to this. However, this
         special protection from dismissal only applies until the normal pensionable age has been reached. The employer retains the
         right to retire an employee as soon as the employee reaches the normal pensionable age.
      
      13.      Such retirement is governed by Paragraph 134(2) and (4) of the DO.B as follows: (15)
      
      ‘(2)      Doctors with protection from dismissal have the right to retire if: 
      ...
      2. there is an entitlement to draw a retirement pension under Paragraph 253 of the ASVG …
      …
      (4)      The board can retire a doctor with protection from dismissal if the doctor:
      1. fulfils the conditions pursuant to subparagraph 2, point 1, 2 or 4 …’ 
      14.      In addition, it is relevant to the present case that the DO.B establishes a pension insurance scheme thereunder. Its benefits
         are designed as additional benefits, as provided for in Paragraph 89(1) of the DO.B:
      
      ‘Benefits from the statutory pension insurance scheme shall be credited to the relevant benefits payable under the present
         pension provisions.’ 
      
      However, the additional benefits under the DO.B sometimes significantly exceed the social security law (statutory) pension
         under the ASVG.
      
      III –  The facts and the main proceedings
      15.      Dr Christine Kleist was born on 11 February 1948 and was employed from 7 January 1985 by the Pensionsversicherungsanstalt,
         an Austrian social security provider, where she was last engaged as chief physician. 
      
      16.      In 2005 the Pensionsversicherungsanstalt took the decision to terminate the employment of all employees, both male and female,
         who satisfy the conditions for retiring them under the relevant collective agreement.
      
      17.      Dr Kleist did not wish to retire at the age of 60. She informed the Pensionsversicherungsanstalt of this in a letter dated
         9 January 2007 and requested to remain employed until the age of 65. Nevertheless, the Pensionsversicherungsanstalt gave notice
         of termination of the employment of Dr Kleist in a letter dated 6 December 2007 and retired her on 1 July 2008.
      
      18.      Prior to her retirement, Dr Kleist’s net monthly salary was EUR 4 032.39. At the time of her retirement, her monthly pension
         pursuant to the DO.B was EUR 3 890.62. Were she not to have retired until 1 March 2013, that is to say, after attaining the
         normal pensionable age for men of 65, then, according to information provided by the referring court, she would have received
         a net monthly pension of EUR 4 829.85.
      
      19.      Dr Kleist’s retirement by the Pensionsversicherungsanstalt does not prevent her from continuing to practise professionally
         and from being employed or self-employed. According to information provided by the referring court, she could continue to
         draw her statutory pension pursuant to the ASVG even if she were to work. (16)
      
      20.      According to the referring court, in the district in which Dr Kleist was employed as chief physician for the Pensionsversicherungsanstalt,
         23 doctors are registered as seeking employment, although there may in fact be about three times as many. 
      
      21.      Dr Kleist challenged the termination of her employment before the Landesgericht Innsbruck (Regional Court, Innsbruck) and
         lost there at first instance. (17) Following an appeal lodged by Dr Kleist, legal proceedings continued before the Oberlandesgericht Innsbruck (Higher Regional
         Court, Innsbruck), which set aside the judgment at first instance and upheld Dr Kleist’s action. (18) The proceedings are now pending before the Oberster Gerichtshof (Supreme Court), the referring court, before which the Pensionsversicherungsanstalt
         brought an appeal on a point of law. 
      
      IV –  Reference for a preliminary ruling and proceedings before the Court of Justice
      22.      By an order of 4 August 2009, lodged at the Court Registry on 4 September 2009, the referring court submitted the following
         questions to the Court of Justice for a preliminary ruling:
      
      ‘(1)      Is Article 3(1)(c) of Directive 76/207/EEC, as amended by Directive 2002/73/EC, to be interpreted – in the context of a system
         of employment law in which the general protection of employees against dismissal is determined by their social (financial)
         dependence on the job – as precluding a provision of a collective agreement offering special protection against dismissal,
         over and above the statutory general protection against dismissal, only until that point in time at which, in a typical case,
         there is social (financial) cover in the form of a retirement pension if men and women become entitled to draw that retirement
         pension at different times?
      
      (2)      In the context of such a system of employment law, does Article 3(1)(c) of Directive 76/207, as amended by Directive 2002/73,
         preclude a decision by a public employer terminating the employment of a female employee just a few months after she acquires
         the financial cover of a retirement pension, in order to employ new workers who are already pressing to join the job market?’
      
      23.      In the proceedings before the Court of Justice, the Pensionsversicherungsanstalt, Dr Kleist and the European Commission made
         written and oral submissions.
      
      V –  Assessment
      24.      The reference for a preliminary ruling from the Oberster Gerichtshof comprises two questions, the first of which relates to
         the reduction of the protection from dismissal under the collective agreement upon reaching the normal pensionable age, while
         the second concerns termination of a female employee’s employment contract directly in connection with her reaching the normal
         pensionable age.
      
      25.      From the point of view of European Union law, both questions referred raise fundamentally the same legal problem: it should
         be discussed whether an employer may terminate the employment of a female employee and retire her for employment policy reasons
         as soon as she reaches the statutory normal pensionable age, which is different for men and women. Therefore I propose to
         deal with both questions together, as, incidentally, was also done in the order for reference and in the majority of the observations
         of parties to the proceedings. 
      
      26.      In this connection, it is not the statutory and constitutional law rules on the normal pensionable age in Austria as such that are in question, but solely thereference to the normal pensionable age in the retirement policy of the defendant employer. 
      
      27.      In assessing the present case it is sufficient to have regard to Directive 76/207, as amended by Directive 2002/73. Although
         the present case could, as Dr Kleist suggests, be examined additionally in the light of the prohibition on age discrimination
         under Directive 2000/78/EC, (19) this would, however, not be overly helpful. First, the Court has already held that compulsory retirement upon reaching the
         statutory normal pensionable age may be justified on employment policy grounds, meaning that there is no age discrimination. (20) Secondly, on the basis of the information before the Court, Dr Kleist does not contest her compulsory retirement as such,
         but rather the fact that this occurred at an earlier time for her than would have been the case for her male colleagues. (21) The legal issue in this case is therefore unequal treatment on the grounds of sex. 
      
      A –    Applicability of Directive 76/207
      28.      Under Article 3(1)(c) of Directive 76/207, the principle of equal treatment of men and women applies to the public and private
         sectors, including public bodies, in relation inter alia to employment and working conditions, including dismissals. 
      
      29.      As an employed chief physician at an Austrian social security provider, Dr Kleist was an employee ‘in the public sector’ or
         in a ‘public body’ and therefore, according to the introductory phrase of Article 3(1) of Directive 76/207, fell within the
         personal scope of the principle of equal treatment. 
      
      30.      The concept of dismissal within the meaning of Directive 76/207 is to be interpreted widely. (22) The question whether a female employee such as Dr Kleist may be compulsorily retired on reaching the normal pensionable age
         for women, pursuant to her employer’s general policy concerning retirement, is a question relating to dismissal. (23) Consequently the case also falls within the material scope of the principle of equal treatment under Article 3(1)(c) of Directive
         76/207. 
      
      B –    Unequal treatment on the grounds of sex
      31.      Article 3(1)(c), in conjunction with Article 2(1), of Directive 76/207 provides that there is to be no direct or indirect
         discrimination on the grounds of sex in relation to dismissals. 
      
      32.      Direct discrimination occurs when one person is treated less favourably on the grounds of sex than another is, has been or would be treated in
         a comparable situation (first indent of Article 2(2) of Directive 76/207); the underlying unequal treatment is therefore directly
         linked to sex. On the other hand, there is only indirect discrimination where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared
         with persons of the other sex (second indent of Article 2(2) of Directive 76/207).
      
      33.      The delimitation between direct and indirect discrimination is legally significant above all because the possibilities of
         justification differ according to whether the underlying unequal treatment is directly or indirectly linked to sex: The second
         indent of Article 2(2) of Directive 76/207 sets out in a very general manner the possibilities of justifying indirect unequal treatment on the grounds of sex (‘objectively justified by a legitimate aim’), whereas direct unequal treatment on the grounds of sex can be justified only by special requirements specific to one sex – for example as regards pregnancy
         and maternity (Article 2(7) of Directive 76/207) – or by the objective of assisting the underrepresented sex (Article 2(8)
         of Directive 76/207 in conjunction with Article 141(4) EC, now Article 157(4) TFEU). 
      
      34.      At first sight it appears as if the contested provision in the present case is formulated in a manner that is gender neutral:
         Paragraph 134(4)(1) of the DO.B enables a social security provider to retire employees who are protected from dismissal when
         they reach the statutory normal pensionable age. On closer scrutiny, however, it is apparent that the criterion of the normal
         pensionable age is inseparably linked to sex, as in Paragraph 253(1) of the ASVG the Austrian legislature lays down different
         retirement ages for men and women. The combined effect of Paragraph 134(4)(1) of the DO.B and Paragraph 253(1) of the ASVG
         is a system whereby women may be retired from the age of 60 and men from 65. Consequently, the result is that the disputed
         retirement rules are directly linked to sex, and have the effect that women can lose their jobs five years earlier than men. (24)
      
      35.      Of course, direct unequal treatment on the grounds of sex is to be found only if women and men are in an identical or at least a comparable situation. (25) If, on the other hand, women of 60 years of age were, objectively, in a different situation from their male colleagues of
         the same age, a difference in treatment between both groups of persons would be lawful and even required. 
      
      36.      The elements which characterise situations and their comparability must in particular be determined and assessed in the light
         of the subject-matter and purpose of the rules which make the distinction in question. The principles and objectives of the
         field to which the rules relate must also be taken into account. (26)
      
      37.      As is apparent from the documents in the case, compulsory retirement pursuant to Paragraph 134(4) of the DO.B serves in particular
         to make jobs available for younger people who are already ‘pressing’ to join the job market. Therefore compulsory retirement
         pursues an employment policy objective. 
      
      38.      The referring court and the Pensionsversicherungsanstalt emphasise that, having regard to this employment policy objective,
         the situation of female employees like Dr Kleist who have reached the age of 60 is not comparable to that of male colleagues
         who are the same age as, unlike male employees, the female employees have already reached the statutory normal pensionable
         age and they therefore benefit from social security cover resulting from their right to a pension in the event of losing their
         job.
      
      39.      At first glance, it could be tempting to follow this line of argument and to conclude that, merely because a right to a pension
         exists, there is a decisive material difference which excludes any comparability between male and female employees.
      
      40.      It is even possible to find case-law in which the Court appears to take such a position. Thus, in Burton, (27)Birds Eye Walls (28) and Hlozek (29) the Court held it lawful to link certain social benefits granted by employers to a pensionable age that differs for men and
         women. 
      
      41.      However, it appears to me that these judgments dealt with isolated cases and cannot in any event be applied more generally.
         Thus, the bridging payments in Burton and Birds Eye Walls served to cover employees’ loss of income where they took early retirement for operational or health reasons. (30) In Hlozek the bridging allowance was specifically aimed at financially cushioning a special risk of long-term unemployment, a risk
         which was statistically proven to arise for men and women at different ages and was particularly high as the statutory retirement
         age drew closer. (31) In the present case however, so far as is apparent from the documents in the case, there are no indications of there being
         such a specific risk. 
      
      42.      Quite apart from the specific features of each case, I consider that it would also be an error for reasons of principle to
         permit employers to differentiate between male and female employees according to the statutory normal pensionable age that
         is respectively applicable. Such an approach would lead to the differences between men and women in relation to the statutory
         normal pensionable age that still exist extending to other areas – here to the area of dismissal. Generalising the differences
         within the framework of statutory social security systems would, however, be contrary to the Court’s settled case-law, according
         to which the exception that still exists to the principle of equal treatment in relation to the pensionable age under statutory
         pension schemes (Article 7(1)(a) of Directive 79/7) is to be interpreted strictly. (32)
      
      43.      In a system which provides for a different pensionable age for women and men, (33) the mere existence of a right to a pension at 60 years of age cannot be a material reason for differentiating between female
         and male employees. Rather, the existence or absence of a right to a pension from the age of 60 to 64 is inseparably linked
         to the sex of the respective employee: just by virtue of the fact that they are women, once female employees in Austria reach
         the age of 60, they have, under the applicable national law, attained the normal pensionable age and have the right to a pension.
         The right to a pension is thus not an objective criterion independent of sex by which the category of female employees can
         be differentiated from their male colleagues. 
      
      44.      Overall therefore, if, due to employment policy reasons, female employees may be compulsorily retired 5 years earlier than
         their male colleagues, there is direct unequal treatment on the grounds of sex.
      
      C –    No justification for the unequal treatment
      45.      It remains to be examined whether such direct unequal treatment on the grounds of sex can be justified. 
      
      1.      Employment policy
      46.      As mentioned above, compulsory retirement pursuant to Paragraph 134(4) of the DO.B serves principally to make jobs available
         for younger people who are already ‘pressing’ to join the job market and it therefore pursues an employment policy objective.
         
      
      47.      It is possible that such employment policy considerations could constitute objective justification for indirect unequal treatment on the grounds of sex and rule out discrimination, as the possibilities for justifying indirect unequal
         treatment are, pursuant to the second indent of Article 2(2) of Directive 76/207, drafted in particularly broad terms (‘objectively
         justified by a legitimate aim’). 
      
      48.      The main proceedings however, as mentioned above, (34) concern a case of direct unequal treatment on the grounds of sex. In this case, Directive 76/207 does not provide for any justification based on employment
         policy. This is a fundamental difference between the first and second indents of Article 2(2) of Directive 76/207. (35)
      
      49.      In this respect, the legal situation is fundamentally different from that applicable to the prohibition on age discrimination,
         where, pursuant to Article 6(1) of Directive 2000/78, even direct unequal treatment on the grounds of age may be justified
         by employment policy objectives. (36) This difference in relation to Directive 2000/78 is all the more glaring as the European Union legislature, when modernising
         Directive 76/207, otherwise closely followed the provisions adopted shortly before then on age discrimination, in particular
         in relation to the definition of direct and indirect discrimination. (37)
      
      50.      These differences relating to possibilities of justification, on the one hand between direct and indirect unequal treatment
         on the grounds of sex, and on the other hand between unequal treatment on the grounds of sex and age, are not a matter of
         chance. It may admittedly be a legitimate employment policy objective to compulsorily retire older employees who have already
         reached the relevant normal pensionable age and who are covered, from a social-welfare point of view, by means of an appropriate
         pension entitlement. (38) However, the employment policy objective must not be attained to the detriment of employees of a particular sex.
      
      51.      This is nevertheless exactly what happens if, on employment policy grounds, female employees are required to leave their jobs
         five years earlier than their male colleagues. In this case, women, solely because a lower statutory normal pensionable age
         applies to them, are relied upon far more than men to attain the employment policy objectives. They are adversely affected
         to a greater extent than their male colleagues in respect of their right to engage in work and pursue their occupation (Article 15(1)
         of the Charter of Fundamental Rights of the European Union). (39)
      
      52.      It may admittedly be that a female employee can draw a retirement pension for a longer period than a male colleague on the
         basis of her earlier retirement and possibly also on the basis of her longer life expectancy. The Pensionsversicherungsanstalt
         referred to this during the oral proceedings before the Court, presenting numerical examples. However, as the Commission rightly
         responded, merely examining the expected period of receipt of a pension is insufficient. Instead, the effects of the different
         retirement dates for male and female employees on their respective lifetime income should be taken into consideration: men
         can earn a salary for five more years than women and will moreover draw a higher monthly pension as a result of their longer
         period in employment.
      
      53.      It is clear from the order for reference that, for a female employee such as Dr Kleist, considerable financial losses result
         from compulsory retirement at the age of 60. Had Dr Kleist’s employment relationship continued until she reached the age of
         65, she would have received her salary for another five years. After that, at the age of 65 she would, pursuant to the DO.B,
         have been able to claim a net monthly pension 24.1% higher than that resulting from her compulsory retirement at the age of
         60; (40) the nominal difference from her current pension would amount to more than EUR 900 net per month. 
      
      54.      A provision which results in such far-reaching employment (41) and financial (42) consequences specifically for persons of one sex does not have due regard to the fundamental importance of the principle
         of equal treatment of men and women (43) (see, in addition, the second subparagraph of Article 3(3) TEU, (44) Article 10 TFEU (45) and Articles 21(1) and 23(2) of the Charter of Fundamental Rights).
      
      55.      In those circumstances a policy of compulsory retirement, such as the one at issue here, by which a woman loses her employment
         generally five years earlier than a man cannot be justified on employment policy grounds.
      
      2.      Other aspects
      56.      In the following points I deal briefly with a few other arguments, put forward in particular by the Pensionsversicherungsanstalt.
      
      a)      Advancement of women
      57.      The Pensionsversicherungsanstalt suggests that its policy of compulsory retirement upon reaching the normal pensionable age
         serves in particular to promote women entering the workforce. The Pensionsversicherungsanstalt is apparently referring to
         the special ground of justification in Article 2(8) of Directive 76/207 in conjunction with Article 141(4) EC (now Article
         157(4) TFEU), which applies even to direct unequal treatment on the grounds of sex. 
      
      58.      However, the requirements of Article 2(8) of Directive 76/207 are not met. To require a woman to vacate her job for other
         women cannot be regarded as an appropriate measure to promote the vocational activity of the underrepresented sex. This applies
         all the more where, in a case such as the present one, an employee in a senior post loses her job in favour of a new entrant
         into the profession, who necessarily cannot be employed at the same level in the internal hierarchy. Nor can it be automatically
         guaranteed that a woman will actually be selected from the pool of available new entrants to the profession and that the vacated
         post will actually be filled by a woman.
      
      b)      Preventing a statutory pension and income from work from being received concurrently
      59.      In addition, the Pensionsversicherungsanstalt submits that it is necessary to retire 60 year old women to ensure that they
         do not draw a statutory pension pursuant to the ASVG in addition to their income from work. Apparently, employees have the
         right to such a pension as soon as they reach the statutory normal pensionable age, irrespective of whether they actually
         retire or continue to work. 
      
      60.      This argument must however also be rejected. Following established case-law, unequal treatment on the grounds of sex cannot
         be justified by referring to budgetary considerations. (46)
      
      61.      Therefore, it should be noted merely for the sake of completeness that the feared concurrent receipt of a pension and income
         from active work cannot be effectively prevented at all by compulsorily retiring a woman. As is apparent from the documents
         before the Court, a female employee whose employment contract has been terminated is able, even after reaching the statutory
         normal pensionable age, to enter into a new employment relationship or to become self-employed and, in addition, to draw her
         statutory retirement pension.
      
      62.      Apart from that, suspending payment of the statutory retirement pension whilst an insured person – irrespective of his or
         her sex – continues to work would be a less restrictive and, at the same time, more effective means of avoiding the concurrent
         receipt of the statutory retirement pension and income from work. Alternatively, such income of an insured person who is still
         working could be deducted from the statutory pension. 
      
      63.      A retirement policy whereby employees of one sex lose their jobs five years earlier than those of the other sex is therefore
         neither an appropriate nor a necessary means to deal with the problem of the concurrent payment of a statutory retirement
         pension and income from work. Ultimately this problem must be solved within the framework of the statutory pension system.
         
      
      VI –  Conclusion
      64.      In the light of the foregoing considerations, I propose that the Court should answer the questions referred to it by the Oberster
         Gerichtshof as follows:
      
      Article 3(1)(c) of Directive 76/207/EEC, as amended by Directive 2002/73/EC, prohibits female employees from being compulsorily
         retired for reasons of employment policy upon reaching the statutory normal pensionable age applicable to them if this normal
         pensionable age is five years lower than that applicable to male employees. 
      
      1 –	Original language: German.
      
      2 –	Case C-411/05 Palacios de la Villa [2007] ECR I‑8531 and Case C-388/07 Age Concern England [2009] ECR I‑1569; also see the Opinion of Advocate General Trstenjak in Case C‑45/09 Rosenbladt [2010] ECR I-0000. 
      
      3 –	Case 152/84 Marshall [1986] ECR 723.
      
      4 –	Case 262/84 Beets-Proper [1986] ECR 773.
      
      5 –	Marshall (cited in footnote 3), paragraph 38.
      
      6 –	Case C-144/04 Mangold [2005] ECR I‑9981.
      
      7 –	Case C-555/07 Kücükdeveci [2010] ECR I-0000.
      
      8 –	Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women
         as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40).
      
      9 –	Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC
         on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training
         and promotion, and working conditions (OJ 2002 L 269, p. 15).
      
      10 –	Although Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the
         principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204,
         p. 23) entered into force on 15 August 2006, it repealed Directive 76/207 only with effect from 15 August 2009. The facts
         of the case in the main proceedings still come within the temporal scope of Directive 76/207 as amended by Directive 2002/73.
      
      11 –	Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for
         men and women in matters of social security (OJ 1979 L 6, p. 24).
      
      12 –	Pursuant to Paragraph 270 of the ASVG, this provision applies to both salaried employees and other workers.
      
      13 –	This constitutional law provision was adopted after a judgment of the Austrian Verfassungsgerichtshof (Constitutional Court)
         found that fixing different ages for men and women infringed the principle of equality (Verfassungsgerichtshof, judgment of
         6 December 1990, VfSlg. 12.568/1990).
      
      14 –	BGBl. I 1982/832.
      
      15 –	Pursuant to Paragraph 134(1) of the DO.B, after 30 September 2000 the cited provisions apply to ‘doctors who started working
         before 1996 at the latest for an Austrian social security provider’.
      
      16 –	The referring court mentions in this regard a judgment of the Austrian Verfassungsgerichtshof (VfSlg. 12.592/1990).
      
      17 –	Judgment of 14 March 2008 of the Landesgericht Innsbruck acting as a court with jurisdiction over employment and welfare
         matters.
      
      18 –	Judgment of 22 August 2008 of the Oberlandesgericht Innsbruck acting as a court of appeal with jurisdiction over employment
         and welfare cases. 
      
      19 –	Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and
         occupation (OJ 2000 L 303, p.16).
      
      20 –	Palacios de la Villa (cited in footnote 2), in particular paragraph 77.
      
      21 –	Dr Kleist had asked her employer to keep her employed until she reached the age of 65, i.e. until the normal pensionable
         age for men (see point 17 of this Opinion).
      
      22 –	Case 19/81 Burton [1982] ECR I-555, paragraph 9.
      
      23 –	The Court has already held this in Marshall (cited in footnote 3), paragraphs 32 to 34, and Beets-Proper (cited in footnote 4), paragraph 36, in relation to Article 5 of Directive 76/207 in its original version. That provision
         was a predecessor to Article 3(1)(c) of Directive 76/207 as amended by Directive 2002/73, which is the version of the directive
         applicable here.
      
      24 –	In a similar manner, the Court has held that there is direct – and not only indirect – discrimination based on sex where
         an employer’s actions are linked to the existence or absence of a pregnancy, as pregnancy is inseparably linked to a female
         employee’s sex. See Case C‑177/88 Dekker [1990] ECR I‑3941, paragraphs 12 and 17; Case C-179/88 Handels- og Kontorfunktionærernes Forbund [1990] ECR I‑3979, paragraph 13; Case C‑320/01 Busch [2003] ECR I‑2041, paragraph 39; and Case C‑116/06 Kiiski [2007] ECR I‑7643, paragraph 55. For an analogous problem relating to age discrimination, see my Opinion in Case C-499/08
         Andersen [2010] ECR I-0000, points 32 to 38. 
      
      25 –	See, to this effect, Case C‑132/92 Roberts(‘Birds Eye Walls’) [1993] ECR I‑5579, paragraph 17; Case C‑249/97 Gruber [1999] ECR I‑5295, paragraph 27; Case C‑220/02 Österreichischer Gewerkschaftsbund [2004] ECR I‑5907, paragraph 59; and Case C‑19/02 Hlozek [2004] ECR I‑11491, paragraph 44.
      
      26 –	Case C‑127/07 Arcelor Atlantique et Lorraine and Others(‘Arcelor’) [2008] ECR I‑9895, paragraph 26.
      
      27 –	Referred to in footnote 22.
      
      28 –	Referred to in footnote 25.
      
      29 –	Referred to in footnote 25.
      
      30 –	Burton (cited in footnote 22), in particular paragraphs 3, 12 and 15, and Birds Eye Walls (cited in footnote 25), in particular paragraphs 3, 4 and 18 to 23.
      
      31 –	Hlozek (cited in footnote 25), in particular paragraphs 28, 29 and 45 to 48.
      
      32 –	Marshall (cited in footnote 3), paragraph 36; Beets-Proper (cited in footnote 4), paragraph 38; Case C‑328/91 Thomas and Others [1993] ECR I‑1247, paragraph 8; Case C‑303/02 Haackert [2004] ECR I‑2195, paragraph 26; and Case C‑423/04 Richards [2006] ECR I‑3585, paragraph 36.
      
      33 –	In Austria, under Paragraph 253(1) of the ASVG, the statutory normal pensionable age is set at 60 years for women, whereas
         it is 65 years for men. 
      
      34 –	See points 31 to 44 of this Opinion. 
      
      35 –	Also, in the Court’s case-law on Article 141 EC (formerly Article 119 of the EEC Treaty, now Article 157 TFEU) and Directive
         76/207, employment and social policy considerations have, as far as can be seen, been recognised hitherto only in connection
         with indirect, and not direct, unequal treatment on the grounds of sex. See Case C-167/97 Seymour-Smith and Perez [1999] ECR I‑623, paragraph 71; Case C-226/98 Jørgensen [2000] ECR I‑2447, paragraph 41; Case C‑322/98 Kachelmann [2000] ECR I-7505, paragraph 30; and Case C-187/00 Kutz-Bauer [2003] ECR I‑2741, paragraphs 55 and 56.
      
      36 –	Age Concern England (cited in footnote 2), first sentence of paragraph 46 and paragraphs 49 and 52; Case C-88/08 Hütter [2009] ECR I‑5325, paragraph 41; and Kücükdeveci (cited in footnote 7), paragraph 33; see also my Opinion in Andersen (cited in footnote 24), in particular points 31 and 41.
      
      37 –	Recital 6 in the preamble to Directive 2002/73.
      
      38 –	See, in relation to age discrimination, Palacios de la Villa (cited in footnote 2), in particular paragraph 73; in addition, see my Opinion in Andersen (cited in footnote 24), point 71.
      
      39 –	The Charter of Fundamental Rights of the European Union was solemnly proclaimed initially in Nice on 7 December 2000 (OJ
         2000 C 364, p. 1) and then for a second time in Strasbourg on 12 December 2007 (OJ 2007 C 303, p. 1). At the time that Dr
         Kleist was compulsorily retired, the Charter as such did not yet produce binding legal effects comparable to primary law but,
         as a material legal reference, did even at that time shed light on the fundamental rights which are protected by the European
         Union legal order; see Case C-540/03 Parliament v Council [2006] ECR I-5769 (‘Family reunification’), paragraph 38, and point 108 of my Opinion in that case; see also Case C-432/05 Unibet [2007] ECR I-2271, paragraph 37.
      
      40 –	As the referring court indicated, Dr Kleist would have received a net monthly pension of EUR 4 829.85 had she not retired
         until 1 March 2013, i.e. upon reaching the age of 65, the normal pensionable age for men. However, at the time of her actual
         retirement at the age of 60, her net monthly pension amounted to EUR 3 890.62.
      
      41 –	See point 51 of this Opinion.
      
      42 –	See points 52 and 53 of this Opinion.
      
      43 –	Marshall (cited in footnote 3), paragraph 36; Beets-Proper (cited in footnote 4), paragraph 38; Case C‑343/92 Roks and Others [1994] ECR I‑571, paragraph 36; Jørgensen (cited in footnote 35), paragraph 39; Kutz-Bauer (cited in footnote 35), paragraph 60; and Joined Cases C‑4/02 and C‑5/02 Schönheit and Becker [2003] ECR I‑12575, paragraph 85.
      
      44 –	Formerly Article 2 EC.
      
      45 –	Formerly Article 3(2) EC. 
      
      46 –	Roks and Others (cited in footnote 43), paragraph 35; Jørgensen (cited in footnote 35), paragraph 39; Kutz-Bauer (cited in footnote 35), paragraphs 59 and 60; Schönheit and Becker (cited in footnote 43), paragraph 85; and Case C-196/02 Nikoloudi [2005] ECR I‑1789, paragraph 53; see to the same effect, in relation to discrimination against fixed-term and part-time employees,
         Case C-486/08 Zentralbetriebsrat der Landeskrankenhäuser Tirols [2010] ECR I-0000.