Nils-Johannes Kratzer v R+V Allgemeine Versicherung AG.
Date: 2016-07-28
27


It should be noted that, in accordance with the settled case-law of the Court, in a reference for a preliminary ruling under Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case in the main proceedings (see, inter alia, judgment of 25 October 2012 in Rintisch,C‑553/11, EU:C:2012:671, paragraph 15). In that context, the Court is empowered to rule on the interpretation or validity of EU law in the light of the factual and legal situation as described by the referring court, in order to provide that court with such guidance as will assist it in resolving the dispute before it (see, inter alia, judgment of 9 November 2006 in Chateignier, C‑346/05, EU:C:2006:711, paragraph 22).
32


According to settled case-law of the Court, it is apparent from both its title, preamble, content and purpose that Directive 2000/78 seeks 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, inter alia, judgments of 16 October 2007 in Palacios de la Villa, C‑411/05, EU:C:2007:604, paragraph 42; of 13 September 2011 in Prigge and Others, C‑447/09, EU:C:2011:573, paragraph 39; and of 13 November 2014 in Vital Pérez, C‑416/13, EU:C:2014:2371, paragraph 28).
34


In particular, it follows from Article 3(1)(a) of Directive 2000/78 and indent (a) of the second subparagraph of Article 1 and Article 14(1)(a) of Directive 2006/54 that those directives apply to a person seeking employment, and also in regard to the selection criteria and recruitment conditions of that employment (see judgment of 19 April 2012 in Meister, C‑415/10, EU:C:2012:217, paragraph 33).
37


Moreover, according to settled case-law of the Court, EU law cannot be relied on for abusive or fraudulent ends (see judgment of 13 March 2014 in SICES and Others, C‑155/13, EU:C:2014:145, paragraph 29 and the case-law cited).
38


A finding of an abusive practice requires a combination of objective and subjective elements (see judgment of 13 March 2014 in SICES and Others, C‑155/13, EU:C:2014:145, paragraph 31).
39


First, with regard to the objective element, such a finding requires that it must be apparent from a combination of objective circumstances that, despite formal observance of the conditions laid down by EU rules, the purpose of those rules has not been achieved (see judgments of 14 December 2000 in Emsland-Stärke, C‑110/99, EU:C:2000:695, paragraph 52, and of 13 March 2014 in SICES and Others, C‑155/13, EU:C:2014:145, paragraph 32).
40


Second, such a finding requires a subjective element, namely that it must be apparent from a number of objective factors that the essential aim of the transactions concerned is to obtain an undue advantage. The prohibition of abuse is not relevant where the economic activity carried out may have some explanation other than the mere attainment of an advantage (see judgments of 21 February 2006 in Halifax and Others, C‑255/02, EU:C:2006:121, paragraph 75; of 22 December 2010 in Weald Leasing, C‑103/09, EU:C:2010:804, paragraph 30; and of 13 March 2014 in SICES and Others, C‑155/13, EU:C:2014:145, paragraph 33).
41


In order to establish the existence of the second element, which relates to the intention of operators, account may be taken, in particular, of the purely artificial nature of the transactions concerned (see, to that effect, judgments of 14 December 2000 in Emsland-Stärke, C‑110/99, EU:C:2000:695, paragraphs 53 and 58; of 21 February 2006 in Halifax and Others, C‑255/02, EU:C:2006:121, paragraph 81; of 21 February 2008 in Part Service, C‑425/06, EU:C:2008:108, paragraph 62; and of 13 March 2014 in SICES and Others, C‑155/13, EU:C:2014:145, paragraph 33).
42


It is for the national court to verify, in accordance with the rules of evidence of national law, provided the effectiveness of EU law is not undermined, whether the factors constituting an abusive practice are present in the case before it (see judgments of 14 December 2000 in Emsland-Stärke, C‑110/99, EU:C:2000:695, paragraph 54; of 21 July 2005 in Eichsfelder Schlachtbetrieb, C‑515/03, EU:C:2005:491, paragraph 40; of 21 February 2006 in Halifax and Others, C‑255/02, EU:C:2006:121, paragraph 76; and of 13 March 2014 in SICES and Others, C‑155/13, EU:C:2014:145, paragraph 34).