Dansk Jurist- og Økonomforbund, acting on behalf of Erik Toftgaard v Indenrigs- og Sundhedsministeriet.
Date: 2013-09-26
23. It is apparent both from its title and preamble and from its content and purpose that that directive is intended 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 any of the grounds mentioned in Article 1, which include age (see Joined Cases C‑297/10 and C‑298/10 Hennings and Mai [2011] ECR I‑7965, paragraph 49).
24. More specifically, it follows from Article 3(1)(c) of Directive 2000/78 that it is to apply within the limits of the areas of competence conferred on the European Union ‘to all persons, as regards both the public and private sectors, including public bodies’, in relation to inter alia ‘employment and working conditions, including dismissals and pay’.
25. The scope of Directive 2000/78 must therefore be understood, in the light of Article 3(1)(c) and Article 3(3), read in conjunction with recital 13 in the preamble to the directive, as excluding social security or social protection schemes, the benefits of which are not equivalent to ‘pay’ within the meaning given to that term for the application of Article 157(2) TFEU, and payments of any kind made by the State with the aim of providing access to employment or maintaining employment (Case C‑267/06 Maruko  [2008] ECR I‑1757, paragraph 41, and Case C‑147/08 Römer  [2011] ECR I‑3591, paragraph 32).
26. The concept of pay, within the meaning of Article 157(2) TFEU, comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer (see, inter alia, Case C‑262/88 Barber  [1990] ECR I‑1889, paragraph 12).
41. Since Article 6(2) of Directive 2000/78 allows Member States to provide for an exception to the principle of non-discrimination on grounds of age, that provision must be interpreted strictly (see, by analogy, Case C‑341/08 Petersen  [2010] ECR I‑47, paragraph 60).
42. However, an interpretation of Article 6(2) of Directive 2000/78 to the effect that that provision is intended to apply to all occupational social security regimes would extend its scope, disregarding the requirement that that provision must be interpreted strictly.
43. It follows that Article 6(2) of Directive 2000/78 applies only to occupational social security schemes covering the risks of old age and invalidity.
50. It should be recalled in that regard that, as European Union law stands at present, 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 (Case C‑411/05 Palacios de la Villa  [2007] ECR I‑8531, paragraph 68).
70. It is true that, generally speaking, it cannot be insisted that a measure such as that at issue in the main proceedings should involve an individual examination of each particular case in order to establish what is best suited to the specific needs of each civil servant, since the management of the regime concerned must remain technically and economically viable.