Surjit Singh Bedi v Bundesrepublik Deutschland and Bundesrepublik Deutschland in Prozessstandschaft für das Vereinigte Königreich von Großbritannien und Nordirland.
Date: 2018-09-19
28


As a preliminary point, it should be borne in mind that, in accordance with the Court’s settled case-law, it is clear from the title of, and preamble to, Directive 2000/78, as well as from its content and purpose, that that directive is intended to establish a general framework for ensuring that everyone benefits from equal treatment ‘in matters of employment and occupation’ by providing effective protection against discrimination based on any of the grounds listed in Article 1 thereof, which include disability (see, to that effect, judgments of 18 June 2009, Hütter, C‑88/08, EU:C:2009:381, paragraph 33, and of 14 March 2018, Stollwitzer, C‑482/16, EU:C:2018:180, paragraph 20).
30


In that regard, the scope of that directive must be understood, in the light of Article 3(1)(c) and (3) read in conjunction with recital 13 of that 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 (judgments of 6 December 2012, Dittrich and Others, C‑124/11, C‑125/11 and C‑143/11, EU:C:2012:771, paragraph 31, and of 2 June 2016, C, C‑122/15, EU:C:2016:391, paragraph 20).
33


It is apparent from the Court’s case-law that the concept of ‘pay’ within the meaning of Article 157(2) TFEU must be interpreted broadly. It covers, in particular, 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, and irrespective of whether it is received under a contract of employment, by virtue of legislative provisions or on a voluntary basis. Moreover, the fact that certain benefits are paid after the termination of the employment relationship does not prevent them from being in the nature of pay within the meaning of the abovementioned provisions (judgments of 6 December 2012, Dittrich and Others, C‑124/11, C‑125/11 and C‑143/11, EU:C:2012:771, paragraph 35, and of 2 June 2016, C, C‑122/15, EU:C:2016:391, paragraph 21).
34


The Court has also stated that consideration classified as pay specifically includes consideration paid by the employer under a contract of employment whose purpose is to ensure that workers receive income even where, in certain specific cases, they are not performing any work provided for in their contracts of employment. Moreover, the fact that such benefits are in the nature of pay cannot be called in question merely because they can also be regarded as reflecting considerations of social policy (judgments of 9 December 2004, Hlozek, C‑19/02, EU:C:2004:779, paragraph 39, and of 2 June 2016, C, C‑122/15, EU:C:2016:391, paragraph 22).
35


In addition, as regards the compensation granted by an employer to a worker when he is made redundant, the Court has already stated that such compensation is a form of deferred pay to which the worker is entitled by reason of his employment but which is paid to him on termination of the employment relationship with a view to enabling him to adjust to the new circumstances arising from such termination (judgments of 17 May 1990, Barber, C‑262/88, EU:C:1990:209, paragraph 13, and of 9 December 2004, Hlozek, C‑19/02, EU:C:2004:779, paragraph 37).
36


Moreover, the Court has consistently held that, in order to assess whether a benefit comes within the scope of Article 157 TFEU, only the criterion of whether the benefit was paid to the worker by reason of the employment relationship between him and his former employer, that is to say, the criterion of employment, based on the wording of that article, can be decisive (see, to that effect, judgments of 6 December 2012, Dittrich and Others, C‑124/11, C‑125/11 and C‑143/11, EU:C:2012:771, paragraph 37, and of 24 November 2016, Parris, C‑443/15, EU:C:2016:897, paragraph 34).
48


In those circumstances, it cannot be held that that provision establishes a difference of treatment directly based on disability within the meaning of the combined provisions of Articles 1 and 2(2)(a) of Directive 2000/78, since it uses a criterion that is not inseparably linked to disability (see, to that effect, judgments of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraphs 72 and 74, and of 18 January 2018, Ruiz Conejero, C‑270/16, EU:C:2018:17, point 37).
55


However, it is apparent from the Court’s case-law that workers in age brackets approaching retirement are in a situation comparable to that of other workers concerned by a redundancy, since their employment relationship with their employer ends for the same reason and in the same circumstances (see, to that effect, judgment of 6 December 2012, Odar, C‑152/11, EU:C:2012:772, paragraph 61).
56


The advantage granted to severely disabled workers consisting in entitlement to claim a retirement pension as from a younger age than non-disabled workers does not place them in a different situation in relation to those workers (see, to that effect, judgment of 6 December 2012, Odar, C‑152/11, EU:C:2012:772, paragraph 62).
59


It should be recalled in that regard that, as EU 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 (judgments of 16 October 2007, Palacios de la Villa, C‑411/05, EU:C:2007:604, paragraph 68, and of 26 September 2013, Dansk Jurist- og Økonomforbund, C‑546/11, EU:C:2013:603, paragraph 50).
61


Therefore, it must be considered that, in a case such as that in the main proceedings, providing compensation for the future of workers who have been made redundant and facilitating their reintegration into employment, whilst taking account of the need to achieve a fair distribution of limited financial resources, can be deemed legitimate aims within the meaning of Article 2(2)(b)(i) of Directive 2000/78 (see, to that effect, judgment of 6 December 2012, Odar, C‑152/11, EU:C:2012:772, paragraphs 42 and 43).
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In order to examine whether such a provision goes beyond what is necessary to achieve the aims pursued, that provision must be placed in its context and the adverse effects it is liable to cause for the persons concerned must be considered (see, to that effect, judgment of 6 December 2012, Odar, C‑152/11, EU:C:2012:772, paragraph 65).
68


The Court has held that the nature of measures adopted by way of a collective agreement differs from the nature of those adopted unilaterally by way of legislation or regulation by the Member States in that the social partners, when exercising their fundamental right to collective bargaining recognised in Article 28 of the Charter, have taken care to strike a balance between their respective interests (judgment of 8 September 2011, Hennigs and Mai, C‑297/10 and C‑298/10, EU:C:2011:560, paragraph 66 and the case-law cited).
69


Where the right of collective bargaining proclaimed in Article 28 of the Charter is covered by provisions of EU law, it must, within the scope of that law, be exercised in compliance with that law (judgment of 8 September 2011, Hennigs and Mai, C‑297/10 and C‑298/10, EU:C:2011:560, paragraph 67 and the case-law cited).
70


Consequently, when they adopt measures coming within the scope of Directive 2000/78, the social partners must comply with that directive (see, to that effect, judgment of 8 September 2011, Hennigs and Mai, C‑297/10 and C‑298/10, EU:C:2011:560, paragraph 68, and of 12 December 2013, Hay, C‑267/12, EU:C:2013:823, paragraph 27).
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It should also be noted that severely disabled persons have specific needs stemming both from the protection their condition requires and the need to anticipate possible worsening of their condition. Regard must therefore be had to the risk that severely disabled persons may have financial requirements arising from their disability which cannot be adjusted and/or that, with advancing age, those financial requirements may increase (see, to that effect, judgment of 6 December 2012, Odar, C‑152/11, EU:C:2012:772, paragraph 69).