Abercrombie & Fitch Italia Srl v Antonino Bordonaro.
Date: 2017-07-19
17


As a preliminary point, it must be noted that, where they adopt measures which come within the scope of Directive 2000/78, which gives specific expression, in the domain of employment and occupation, to the principle of non-discrimination on grounds of age, now enshrined in Article 21 of the Charter, the Member States and the social partners must respect that directive (judgments of 13 September 2011, Prigge and Others, C‑447/09, EU:C:2011:573, point 48; of 11 November 2014, Schmitzer, C‑530/13, EU:C:2014:2359, paragraph 23; and of 21 December 2016, Bowman, C‑539/15, EU:C:2016:977, paragraph 19).
19


As regards, first of all, the question, raised by the European Commission, of whether Mr Bordonaro may be classified as a ‘worker’ within the meaning of Article 45 TFEU, it must be recalled that according to consistent case-law of the Court, that concept has a specific independent meaning and must not be interpreted narrowly. So, any person who pursues real, genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to that case-law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (judgments of 3 July 1986, Lawrie-Blum, 66/85, EU:C:1986:284, paragraphs 16 and 17; of 23 March 2004, Collins, C‑138/02, EU:C:2004:172, paragraph 26; and of 3 May 2012, Neidel, C‑337/10, EU:C:2012:263, paragraph 23).
20


The overall assessment of Mr Bordonaro’s employment relationship makes it necessary to take into account factors relating not only to the number of working hours and the level of remuneration but also to the right to paid leave, to the continued payment of wages in the event of sickness, to a contract of employment which is subject to the relevant collective agreement, to the payment of contributions and, as appropriate, the type of those contributions (see, to that effect, judgment of 4 February 2010, Genc, C‑14/09, EU:C:2010:57, paragraph 27).
25


With regard to the requirement relating to comparable situations, it must be pointed out that, on the one hand, it is required not that the situations be identical, but only that they be comparable and, on the other hand, the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned (judgment of 12 December 2013, Hay, C‑267/12, EU:C:2013:823, paragraph 33 and the case-law cited).
31


It must be borne in mind that the Member States enjoy a 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 (judgment of 11 November 2014, Schmitzer, C‑530/13, EU:C:2014:2359, paragraph 38 and the case-law cited).
37


Furthermore, 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 (judgment of 21 July 2011, Fuchs and Köhler, C‑159/10 and C‑160/10, EU:C:2011:508, paragraph 49 and the case-law cited).
38


Similarly, the Court has held that the objective of promoting the position of young people on the labour market in order to promote their vocational integration or ensure their protection can be regarded as legitimate for the purposes of Article 6(1) of Directive 2000/78 (judgment of 10 November 2016, de Lange, C‑548/15, EU:C:2016:850, paragraph 27). It has been held that the facilitation of recruitment of younger workers by increasing the flexibility of personnel management constitutes a legitimate aim (see, to that effect, judgment of 19 January 2010, Kücükdeveci, C‑555/07, EU:C:2010:21, paragraphs 35 and 36).