Gisela Rosenbladt v Oellerking Gebäudereinigungsges. mbH.
Date: 2010-10-12
31. Those arguments are not founded. Apart from the fact that the questions that gave rise to the answers in Age Concern England are not identical to those raised in the present case, it must be borne in mind that Article 267 TFEU always allows a national court, if it considers it desirable, to refer questions of interpretation to the Court again (see Joined Cases 28/62 to 30/62 Da Costa en Schaake  [1963] ECR 31, 38). Moreover, it is clear from the terms of the reference for a preliminary ruling that the referring court seeks an interpretation of EU law to enable it to deliver judgment in the main proceedings.
32. Furthermore, it should be recalled that, in proceedings under Article 267 TFEU, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑119/05 Lucchini  [2007] ECR I‑6199, paragraph 43, and Case C‑414/07 Magoora  [2008] ECR I‑10921, paragraph 22).
33. According to settled case-law, 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. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others  [2007] ECR I‑4233, paragraph 22 and the case-law cited).
37. As a preliminary point, it must be found that Paragraph 10(5) of the AGG provides for a difference in treatment directly based on age, as referred to in Article 2(2)(a) of Directive 2000/78 (see, to that effect, Case C‑411/05 Palacios de la Villa  [2007] ECR I‑8531, point 51).
40. Article 6(1)(a) of Directive 2000/78 does not include clauses on automatic termination of employment contracts among those appearing on the list of differences of treatment on the grounds of age which may be justified and, for that reason, may be considered not to be discriminatory. However, that fact alone is not decisive as the list is merely a guide. Thus, when the Member States implement the directive, they are not obliged to draw up a specific list of differences in treatment which may be justified by a legitimate aim ( Age Concern England , paragraph 43). If, in the exercise of their discretion, they decide to do so, they may include in that list examples of differences in treatment and aims other than those expressly covered by the directive, provided that those aims are legitimate within the meaning of Article 6(1) thereof and are appropriate and necessary to achieve those aims.
41. It should be recalled in this context that the Member States and, where appropriate, the social partners at national level enjoy broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it (see Case C‑144/04 Mangold  [2005] ECR I‑9981, paragraph 63, and Palacios de la Villa , paragraph 68).
43. In the proceedings before the Court of Justice, the German Government observed, inter alia, that the lawfulness of clauses on automatic termination of employment contracts of employees who have reached retirement age, which is also acknowledged in a number of other Member States, is the reflection of a political and social consensus which has endured for many years in Germany. That consensus is based primarily on the notion of sharing employment between the generations. The termination of the employment contracts of those employees directly benefits young workers by making it easier for them to find work, which is otherwise difficult at a time of chronic unemployment. The rights of older workers are, moreover, adequately protected as most of them wish to stop working as soon as they are able to retire, and the pension they receive serves as a replacement income once they lose their salary. The automatic termination of employment contracts also has the advantage of not requiring employers to dismiss employees on the ground that they are no longer capable of working, which may be humiliating for those who have reached an advanced age.
44. It must be observed 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 (see, to that effect, Palacios de la Villa , paragraph 69).
45. Therefore, aims such as those described by the German 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 10(5) of the AGG.
47. The authorisation of clauses on automatic termination of employment contracts on the ground that an employee has reached retirement age cannot, generally, be regarded as unduly prejudicing the legitimate interests of the workers concerned.
48. Legislation such as that at issue in the main proceedings is not based only on a specific age, but also takes account of the fact that the persons concerned are entitled to financial compensation by means of a replacement income in the form of a retirement pension at the end of their working life (see, to that effect, Palacios de la Villa , paragraph 73).
49. Moreover, the mechanism of automatic termination of employment contracts provided for by a measure such as that in Paragraph 10(5) of the AGG does not authorise employers to terminate an employment relationship unilaterally when workers reach the age at which they are eligible for payment of a pension. That mechanism, which is distinct from dismissal and resignation, has its basis in an agreement. That allows not only employees and employers, by means of individual agreements, but also the social partners, by means of collective agreements, – and therefore with considerable flexibility – to opt for application of that mechanism so that due account may be taken not only of the overall situation in the labour market concerned, but also of the specific features of the jobs in question ( Palacios de la Villa , paragraph 74).
51. In the light of those considerations, it does not appear unreasonable for the authorities of a Member State to take the view that a measure such as the authorisation of clauses on automatic termination of employment contracts on the ground that an employee has reached the age at which he is eligible for a retirement pension, provided for by Paragraph 10(5) of the AGG, may be appropriate and necessary in order to achieve legitimate aims in the context of national employment policy, such as those described by the German Government (see, to that effect, Palacios de la Villa , paragraph 72).
53. Conseque ntly, the answer to the second question is that Article 6(1) of Directive 2000/78 must be interpreted as meaning that it does not preclude a national provision such as Paragraph 10(5) of the AGG, under which clauses on automatic termination of employment contracts on the ground that the employee has reached the age of retirement are considered to be valid, in so far as, first, that provision is objectively and reasonably justified by a legitimate aim relating to employment policy and the labour market and, second, the means of achieving that aim are appropriate and necessary. The implementation of that authorisation by means of a collective agreement is not, as such, exempt from any review by the courts but, in accordance with the requirements of Article 6(1) of that directive, must itself pursue a legitimate aim in an appropriate and necessary manner.
The first and third questions
58. Where the national legislation in question does not specify the aim pursued, 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 (see Palacios de la Villa , paragraph 57, and Age Concern England , paragraph 45).
62. The Court has held that clauses on automatic termination of employment contracts of employees who are eligible to receive a retirement pension may be justified in the context of a national policy seeking to promote better access to employment, by means of better distribution of work between the generations, and, aims of that kind must, in principle, be considered to justify ‘objectively and reasonably’, ‘within the context of national law’, as provided in the first subparagraph of Article 6(1) of Directive 2000/78, a difference in treatment on the ground of age prescribed by Member States (see, to that effect, Palacios de la Villa , paragraphs 53, 65 and 66). It follows that objectives such as those described by the referring court are ‘legitimate’ within the meaning of that provision.
67. In the light of the assessment made by the referring court, it must be observed that the clause on the automatic termination of employment contracts at issue in the main proceedings is the result of an agreement negotiated between employees’ and employers’ representatives exercising their right to bargain collectively which is recognised as a fundamental right (Case C‑271/08 Commission  v Germany  [2010] ECR I-0000, paragraph 37). The fact that the task of striking a balance between their respective interests is entrusted to the social partners offers considerable flexibility, as each of the parties may, where appropriate, opt not to adopt the agreement (see, to that effect, Palacios de la Villa , paragraph 74).
69. Accordingly, in the light of the wide discretion granted to the social partners at national level in choosing not only to pursue a given aim in the area of social 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 Paragraph 19(8) of the RTV may be appropriate for achieving the aims set out above.
73. 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 65, when they may obtain liquidation of their pension rights, that measure must be viewed against its legislative background and account must be taken both of the hardship it may cause to the persons concerned and of the benefits derived from it by society in general and the individuals who make up society.
74. According to the explanations given by the referring court and the observations submitted to the Court of Justice, German employment law does not prevent a person who has reached the age at which he is eligible for payment of a pension from continuing to work. Furthermore, according to those explanations, a worker in that position continues to enjoy protection from discrimination on grounds of age under the AGG. The referring court made clear, in that connection, that the AGG prevents a person in Mrs Rosenbladt’s position, after termination of her employment contract on the ground that she has reached retirement age, from being refused employment, either by her former employer or by a third party, on a ground related to her age.
75. Viewed against that background, the termination by operation of law of an employment contract as a result of a measure such as Paragraph 19(8) of the RTV does not have the automatic effect of forcing the persons concerned to withdraw definitively from the labour market. It follows that that provision does not establish a mandatory scheme of automatic retirement (see, to that effect, Age Concern England , paragraph 27). It does not prevent a worker who wishes to do so, for example, for financial reasons, from continuing to work beyond retirement age. It does not deprive employees who have reached retirement age of protection from discrimination on grounds of age where they wish to continue to work and seek a new job.
76. In the light of those arguments, it must be held that a measure such as Paragraph 19(8) of the RTV does not go beyond what is necessary to achieve the aims pursued, given the wide discretion granted to the Member States and the social partners in the area of social policy and employment.
79. Directive 2000/78 does not, as such, govern the conditions under which the Member States may declare a collective agreement to be of general application. However, the Member States are required to ensure, by means of appropriate laws, regulations or administrative provisions, that all workers are able to enjoy fully the protection granted to them by Directive 2000/78 against discrimination on the grounds of age. Article 16(b) of the directive requires Member States to take the necessary measures to ensure that ‘any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements … are, or may be, declared null and void or are amended’. As long as a collective agreement is not contrary to Articles 1 and 2 of Directive 2000/78 the Member State concerned is free to make it compulsory for persons who are not bound as parties to the agreement (see, by analogy, Case C-67/96 Albany  [1999] ECR I-5751, paragraph 66).