The Queen, on the application of The Incorporated Trustees of the National Council for Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform.
Date: 2009-03-05
23. In that connection, it must be recalled that Directive 2000/78 is designed to lay down a general framework in order to guarantee equal treatment in employment and occupation to all persons, by offering them effective protection against discrimination on one of the grounds covered by Article 1, which include age (see Palacios de la Villa , paragraph 42).
24. More particularly, it follows from Article 3(1)(c) of Directive 2000/78 that the directive applies, within the framework of the competence conferred on the Community, ‘to all persons … in relation to … employment and working conditions, including dismissals and pay’.
25. It is true that, according to recital 14 in its preamble, Directive 2000/78 is to be without prejudice to national provisions laying down retirement ages. However, that recital merely states that the directive does not affect the competence of the Member States to determine retirement age and it does not in any way preclude the application of the directive to national measures governing the conditions for termination of employment contracts where the retirement age, thus established, has been reached ( Palacios de la Villa , paragraph 44).
27. It follows that regulations such as those at issue in the main proceedings do not establish a mandatory scheme of automatic retirement. They lay down the conditions under which an employer may derogate from the principle prohibiting discrimination on grounds of age and dismiss a worker because he has reached retirement age. As a result, such regulations may directly affect the length of the employment relationship between the parties and, more generally, the pursuit by the worker concerned of his professional or trade activity. Furthermore, a provision such as Regulation 7(5) of the Regulations deprives workers who have reached or are about to reach the age of 65 and are covered by Regulation 30 of any protection against discrimination in recruitment on grounds of age, thereby limiting the future participation of that category of workers in professional life.
33. Under Article 2(1) of Directive 2000/78, for the purposes of the directive, the ‘principle of equal treatment’ is to mean that there is to be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 of that directive. By virtue of Article 2(2)(a), for the purposes of the application of Article 2(1), direct discrimination is to be taken to occur where one person is treated less favourably than another in a comparable situation, on any of the grounds referred to in Article 1 of Directive 2000/78.
40. The Commission of the European Communities maintains that the principle of non-discrimination on grounds of age is a fundamental principle of Community law, referring in that regard to Case C-144/04 Mangold  [2005] ECR I-9981, paragraph 75, and to Article 21(1) of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1), and that any exception to that principle must be justified by a public social policy objective. It interprets Article 6(1) of Directive 2000/78 as explained by recital 25 in the preamble thereto as providing for a limited form of exception to that fundamental principle which is justified by particular social policy considerations specific to a given Member State. The provisions of Article 6(1) thus imply, in the Commission’s submission, that a specific national measure has been adopted reflecting a particular set of circumstances and objectives.
41. In that connection, it must be recalled that, under Article 249 EC, a directive is to be binding, as to the result to be achieved, upon each Member State to which it is addressed, but is to leave to the national authorities the choice of form and methods. Member States have the obligation, when they transpose a directive, to ensure that it is fully effective, whilst retaining a broad discretion as to the choice of methods (see, in particular, Case C-216/05 Commission v Ireland  [2006] ECR I-10787, paragraph 26).
42. The transposition of a directive into domestic law does not moreover always require that its provisions be incorporated formally in express, specific legislation. Thus, the Court has held that the implementation of a directive may, depending on its content, be effected in a Member State by way of general principles or a general legal context, provided that they are appropriate for the purpose of guaranteeing in fact the full application of the directive and that, where a provision of the directive is intended to create rights for individuals, the legal position arising from those general principles or that general legal context is sufficiently precise and clear and the persons concerned can ascertain the full extent of their rights and, where appropriate, rely on them before the national courts (see, to that effect, Case 29/84 Commission  v Germany  [1985] ECR 1661, paragraph 23, and Case 363/85 Commission  v Italy  [1987] ECR 1733, paragraph 7). A directive may also be implemented by way of a general measure provided that it satisfies the same conditions.
43. In accordance with those principles, Article 6(1) of Directive 2000/78 cannot be interpreted as requiring Member States to draw up, in their measures of transposition, a specific list of the differences in treatment which may be justified by a legitimate aim. Moreover, it is clear from the words of that provision that the legitimate aims and the differences in treatment referred to therein are purely illustrative, as evidenced by the Community legislature’s use of the word ‘include’.
44. Consequently, it cannot be inferred from Article 6(1) of Directive 2000/78 that a lack of precision in the national legislation as regards the aims which may be considered legitimate under that provision automatically excludes the possibility that the legislation may be justified under that provision (see, to that effect, Palacios de la Villa , paragraph 56).
45. In the absence of such precision, it is important, however, that other elements, taken from the general context of the measure concerned, enable the underlying aim of that measure to be identified for the purposes of review by the courts of its legitimacy and whether the means put in place to achieve that aim are appropriate and necessary ( Palacios de la Villa , paragraph 57).
46. It is apparent from Article 6(1) of Directive 2000/78 that the aims which may be considered ‘legitimate’ within the meaning of that provision, and, consequently, appropriate for the purposes of justifying derogation from the principle prohibiting discrimination on grounds of age, are social policy objectives, such as those related to employment policy, the labour market or vocational training. By their public interest nature, those legitimate aims are distinguishable from purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness, although it cannot be ruled out that a national rule may recognise, in the pursuit of those legitimate aims, a certain degree of flexibility for employers.
48. However, when giving a preliminary ruling the Court may, where appropriate, provide clarification designed to give the national court guidance in its interpretation (see, inter alia, Case C-238/05 Asnef-Equifax and Administración del Estado [2006] ECR I-11125, paragraph 40 and the case-law cited).
51. In that connection, it must be observed that, in choosing the means capable of achieving their social policy objectives, the Member States enjoy broad discretion (see, to that effect, Mangold , paragraph 63). However, that discretion cannot have the effect of frustrating the implementation of the principle of non-discrimination on grounds of age. Mere generalisations concerning the capacity of a specific measure to contribute to employment policy, labour market or vocational training objectives are not enough to show that the aim of that measure is capable of justifying derogation from that principle and do not constitute evidence on the basis of which it could reasonably be considered that the means chosen are suitable for achieving that aim (see, by way of analogy, Case C-167/97 Seymour-Smith and Perez  [1999] ECR I-623, paragraphs 75 and 76).
52. Having regard to the foregoing, the answer to the fourth question referred is that Article 6(1) of Directive 2000/78 must be interpreted as meaning that it does not preclude a national measure which, like Regulation 3 of the Regulations, does not contain a precise list of the aims justifying derogation from the principle prohibiting discrimination on grounds of age. However, Article 6(1) offers the option to derogate from that principle only in respect of measures justified by legitimate social policy objectives, such as those related to employment policy, the labour market or vocational training. It is for the national court to ascertain whether the legislation at issue in the main proceedings is consonant with such a legitimate aim and whether the national legislative or regulatory authority could legitimately consider, taking account of the Member States’ discretion in matters of social policy, that the means chosen were appropriate and necessary to achieve that aim.
The fifth question