Torsten Hörnfeldt v Posten Meddelande AB.
Date: 2012-07-05
21. However, it follows from the first subparagraph of Article 6(1) of Directive 2000/78 that differences of treatment on grounds of age are not to constitute discrimination if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment, labour-market and vocational-training policy objectives, and if the means of achieving that aim are appropriate and necessary.
24. That fact, however, is not decisive. It cannot be inferred from Article 6(1) of Directive 2000/78 that a lack of precision in the national legislation at issue as regards the aim pursued has the effect of excluding automatically the possibility that that national legislation may be justified under that provision. In the absence of such precision, it is important that other elements, derived from the general context of the measure concerned, should make it possible to identify the underlying aim of that measure for the purposes of review by the courts as to whether it is legitimate and as to whether the means put in place to achieve it are appropriate and necessary (see Joined Cases C-159/10 and C-160/10 Fuchs and Köhler  [2011] ECR I-6919, paragraph 39 and the case-law cited).
28. In that regard, the Court has held that the automatic termination of the employment contracts of employees who meet the conditions as regards age and contributions paid for the liquidation of their pension rights has, for a long time, been a feature of employment law in many Member States and is widely used in employment relationships. It is a mechanism which is based on the balance to be struck between political, economic, social, demographic and/or budgetary considerations and the choice to be made between prolonging people’s working lives or, conversely, providing for early retirement ( Rosenbladt , paragraph 44).
29. Furthermore, in accordance with the case-law, encouragement of recruitment undoubtedly constitutes a legitimate aim of Member States’ social or employment policy, in particular when the promotion of access of young people to a profession is involved (Joined Cases C-250/09 and C-268/09 Georgiev [2010] ECR I-11869, paragraph 45, and Fuchs and Köhler , paragraph 49).
30. Therefore, aims such as those described by the Swedish Government must, in principle, be regarded as ‘objectively and reasonably’ justifying, ‘within the context of national law’, as provided for by Article 6(1) of Directive 2000/78, a difference in treatment on grounds of age such as that provided for by Paragraph 33 of the LAS (see, by analogy, Rosenbladt , paragraph 45).
32. In the light of the broad discretion granted to the Member States and, as necessary, to the social partners at national level in choosing not only to pursue a particular aim in the field of social and employment policy, but also in defining measures to implement it, it does not appear unreasonable for the social partners to take the view that a measure such as the 67-year rule may be appropriate for achieving the aims set out above (see, to that effect and by analogy, Rosenbladt , paragraphs 41 and 69).
37. The prohibition of discrimination on grounds of age set out in Directive 2000/78 must be read in the light of the right to engage in work recognised in Article 15(1) of the Charter of Fundamental Rights of the European Union. It follows that particular attention must be paid to the participation of older workers in the labour force, and thus in economic, cultural and social life. Keeping older workers in the labour force promotes diversity in the workforce, which is an aim recognised in recital 25 in the preamble to Directive 2000/78. Furthermore, it contributes to the realising of their potential and to the quality of life of the workers concerned, in accordance with the concerns of the European Union legislature set out in recitals 8, 9 and 11 in the preamble to that directive ( Fuchs and Köhler , paragraphs 62 and 63).
38. In order to examine whether the measure at issue in the main proceedings goes beyond what is necessary for achieving its objective and unduly prejudices the interests of workers who reach the age of 67, that measure must be viewed against its legislative background and account must be taken both of the hardship that it may cause to the persons concerned and of the benefits derived from it by society in general and by the individuals who make up society ( Rosenbladt , paragraph 73).
40. Secondly, the termination, by operation of law, of an employment contract as a result of a measure such as that set out in Paragraph 33 of the LAS does not have the automatic effect of forcing the persons concerned to withdraw definitively from the labour market. On the one hand, that provision does not establish a mandatory scheme of automatic retirement. It lays down the conditions under which an employer may derogate from the principle of the prohibition of discrimination on grounds of age and terminate the employment contract of an employee on the ground that he has reached the age of 67.
42. Thirdly, the 67-year rule is not based solely on the fact that a specific age has been reached, but also takes account of the fact that the worker is entitled to financial compensation by means of a replacement income in the form of a retirement pension at the end of his working life (see, to that effect and by analogy, Rosenbladt , paragraph 48).
45. It must be borne in mind in this regard that, in paragraph 47 of the judgment in Rosenbladt , the Court held that there was no undue prejudice to the legitimate interests of the workers concerned despite the fact that, in the case which gave rise to that judgment, the retirement age was lower than that laid down in Paragraph 33 of the LAS and the amount of the retirement pension received by Ms Rosenbladt was significantly lower than that which Mr Hörnfeldt can hope to receive.