Gerhard Fuchs (C-159/10) and Peter Köhler (C-160/10) v Land Hessen.
Date: 2011-07-21
30. The national court raises numerous queries, essentially grouped together into three questions, some of which relate to the interpretation of national law. In this regard, it must be borne in mind that the Court has no power, within the framework of Article 267 TFEU, to give preliminary rulings on the interpretation of rules pertaining to national law. The jurisdiction of the Court is confined to considering provisions of EU law only (see, in particular, Case C‑222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I‑289, paragraph 63).
34. A provision such as Paragraph 50(1) of the HBG affects employment and working conditions, within the meaning of Article 3(1)(c) of Directive 2000/78, by preventing the prosecutors concerned from continuing to work beyond the age of 65. Furthermore, by ensuring that they are treated less favourably than persons who have not reached that age, Paragraph 50(1) of the HBG introduces a difference of treatment directly based on age for the purposes of Article 2(1) of Directive 2000/78.
39. In that regard, the Court has repeatedly held that it cannot be inferred from Article 6(1) of Directive 2000/78 that the lack of precision in the legislation at issue as regards the aim pursued automatically excludes the possibility that it may be justified under that provision. In the absence of such precision, it is important 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 whether it is legitimate and whether the means put in place to achieve it are appropriate and necessary (Case C‑411/05 Palacios de la Villa [2007] ECR I‑8531, paragraphs 56 and 57; Case C‑341/08 Petersen  [2010] ECR I‑0000, paragraph 40; and Case C‑45/09 Rosenbladt [2010] ECR I‑0000, paragraph 58).
45. That was the case in Rosenbladt , in which the Court held, in paragraphs 43 and 45 of its judgment, that aims such as those relied on by the German Government could be regarded as being among the aims referred to in Article 6(1) of Directive 2000/78.
46. The aims relied on may be linked to another (see, to that effect, Joined Cases C‑250/09 and C‑268/09 Georgiev [2010] ECR I‑0000, paragraphs 45, 46 and 68) or classed in order of importance as in Petersen , in which, as can be seen from paragraphs 41 and 65 of that judgment, the German Government relied principally on one aim and, in the alternative, on another.
The aims relied on by the national court
49. It must be noted that, according to 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 ( Georgiev , paragraph 45). The Court has, moreover, held that 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 (see, to that effect, in relation to teaching staff and researchers, Georgiev , paragraph 46).
50. In the same way, it must be concluded that the aim of establishing an age structure that balances young and older civil servants in order to encourage the recruitment and promotion of young people, to improve personnel management and thereby to prevent possible disputes concerning employees’ fitness to work beyond a certain age, while at the same time seeking to provide a high-quality justice service, can constitute a legitimate aim of employment and labour market policy.
52. The Court has held that the aims that may be considered ‘legitimate’ within the meaning of Article 6(1) of Directive 2000/78 are aims having a public interest nature 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 (see, to that effect, Case C‑388/07 Age Concern England [2009] ECR I‑1569, paragraph 46).
55. Thus, the fact that a provision is adopted at regional level does not prevent its pursuing a legitimate aim within the meaning of Article 6(1) of Directive 2000/78. In a State such as the Federal Republic of Germany, the legislature may take the view that, in the interests of all the persons concerned, it is for the Länder rather than the Federal authorities to adopt certain legislative measures covered by that provision, such as the retirement age of permanent civil servants.
58. The Court has already accepted in connection with professions in which the number of posts available was limited that retirement at an age laid down by law facilitated access to employment by younger people (see to that effect, in relation to panel dentists, Petersen , paragraph 70, and, in relation to university professors, Georgiev , paragraph 52).
61. It must be borne in mind that the Member States enjoy broad discretion in the definition of measures capable of achieving that aim (see, to that effect, Palacios de la Villa , paragraph 68).
62. However, the Member States may not frustrate the prohibition of discrimination on grounds of age set out in Directive 2000/78. That prohibition 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.
63. 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 Directive 2000/78; moreover, 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 that directive.
65. Therefore, in defining their social policy on the basis of political, economic, social, demographic and/or budgetary considerations, the national authorities concerned may be led to choose to prolong people’s working life or, conversely, to provide for early retirement (see Palacios de la Villa , paragraphs 68 and 69). The Court has held that it is for those authorities to find the right balance between the different interests involved, while ensuring that they do not go beyond what is appropriate and necessary to achieve the legitimate aim pursued (see, to that effect, Palacios de la Villa , paragraphs 69 and 71, and also Rosenbladt , paragraph 44).
66. In that regard, the Court has accepted that a measure that allows for the compulsory retirement of workers when they reach the age of 65 can meet the aim of encouraging recruitment and be regarded as not unduly prejudicing the legitimate claims of the workers concerned, if those workers are entitled to a pension the level of which cannot be regarded as unreasonable (see, to that effect, Palacios de la Villa , paragraph 73). The Court has also held, in regard to a measure requiring the automatic termination of employment contracts at that age, in a sector in which, according to the national court, that measure was liable to cause significant financial hardship to the worker concerned, that that measure did not go beyond what was necessary to achieve the desired aims, in particular the encouragement of recruitment. The Court took into account the fact that the worker was eligible for payment of a pension while at the same time remaining in the labour market and enjoying protection from discrimination on grounds of age (see, to that effect, Rosenbladt , paragraphs 73 to 76).
72. It should be borne in mind that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see, in particular, Joined Cases C‑188/10 and C‑189/10 Melki and Abdeli [2010] ECR I‑0000, paragraph 27 and the case-law cited). In the present case, since it is not altogether obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, or that the problem is hypothetical, the Court must answer the question put forward.
73. As is apparent from paragraph 65 of the present judgment, in the context of the adoption of measures relating to retirement, EU law does not preclude the Member States from taking account of budgetary considerations at the same time as political, social or demographic considerations, provided that in so doing they observe, in particular, the general principle of the prohibition of age discrimination.
74. In that regard, while budgetary considerations can underpin the chosen social policy of a Member State and influence the nature or extent of the measures that the Member State wishes to adopt, such considerations cannot in themselves constitute a legitimate aim within the meaning of Article 6(1) of Directive 2000/78.
77. It is clear from paragraph 51 of Age Concern England  that mere generalisations indicating that a measure is likely 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 derogating from the principle of non-discrimination on grounds of age and do not constitute evidence on the basis of which it could reasonably be considered that the means chosen are likely to achieve that aim.
85. It must be observed, in accordance with settled case-law, that legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (Case C‑169/07 Hartlauer  [2009] ECR I‑1721, paragraph 55, and Petersen , paragraph 53).
86. Exceptions to the provisions 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 pursued by that law (see, to that effect, Petersen , paragraph 61).