Vasil Ivanov Georgiev v Tehnicheski universitet - Sofia, filial Plovdiv.
Date: 2010-11-18
26. It must be pointed out at the outset, as is apparent both from its title and the preamble and from its content and purpose, that Directive 2000/78 seeks 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 one of the grounds covered by Article 1 of the directive, which include age.
32. The application of a law which provides for the compulsory retirement of university professors who have reached the age of 68 has the consequence that those persons are being treated less favourably than other persons practising the same profession on the ground that they are over the age of 68. Such a provision introduces a difference of treatment directly on grounds of age for the purposes of Article 2(2)(a) of Directive 2000/78 (see, to that effect, Case C-411/05 Palacios de la Villa  [2007] ECR I‑8531, paragraph 51).
40. That situation does not however mean that that legislation does not pursue a legitimate aim. As the Court has previously held, 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; Case C-388/07 Age Concern England  [2009] ECR I-1569, paragraph 45; and Case C-341/08 Petersen  [2010] ECR I-0000, paragraph 40).
45. In that regard, the training and employment of teaching staff and the application of a specific labour market policy which takes account of the specific situation of the staff in the discipline concerned, put forward by the University and the Bulgarian Government, may be consonant with the intention of allocating the posts for professors in the best possible way between the generations, in particular by appointing young professors. As regards the latter aim, the Court has already held that encouragement of recruitment undoubtedly constitutes a legitimate aim of Member States’ social or employment policy ( Palacios de la Villa , paragraph 65), in particular when the promotion of access of young people to a profession is involved (see, to that effect, Petersen , paragraph 68). Consequently, encouragement of recruitment in higher education by means of the offer of posts as professors to younger people may constitute such a legitimate aim.
46. Furthermore, as the Advocate General pointed out in point 34 of his Opinion, the mix of different generations of teaching staff and researchers is such as to promote an exchange of experiences and innovation, and thereby the development of the quality of teaching and research at universities.
50. In that regard, it must be borne in mind that the Member States 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).
51. As regards, first, the setting of an age limit of 68, the Court has held, in paragraph 70 of Petersen , that, in view of developments in the employment situation in the sector concerned, it does not appear unreasonable for the authorities of a Member State to consider that the application of an age limit, leading to the withdrawal from the labour market of older practitioners, may make it possible to promote the employment of younger ones and that that age is sufficiently high to serve as the endpoint of admission to practise as a panel dentist.
52. Those findings are also relevant as regards engaging in employment such as that of a university professor. In so far as the posts for university professors are, in general, of a limited number and open only to people who have attained the highest qualifications in the field concerned, and since a vacant post has to be available for a professor to be appointed, the Court takes the view that a Member State may consider it appropriate to set an age limit to achieve aims of employment policy such as those mentioned in paragraphs 45 and 46 of this judgment.
56. It is for the national court to ascertain whether such an age limit genuinely reflects a concern to attain the aims pursued in a consistent and systematic manner (see Case C-169/07 Hartlauer  [2009] ECR I-1721, paragraph 55, and Petersen , paragraph 53). In particular, it is for that court to examine whether the legislation at issue in the main proceedings distinguishes between, on the one hand, lecturers and university professors and, on the other hand, other university teaching staff by not providing for the compulsory retirement of the latter, as Mr Georgiev claims. It would thus be necessary to ascertain whether such a distinction corresponds to a necessity in the light of the aims pursued and the particular characteristics of the teaching staff at issue or whether, on the contrary, it indicates an inconsistency in the legislation, which does not therefore satisfy the conditions set out in Article 6(1) of Directive 2000/78.
59. In that judgment the Court, first, pointed out that such legislation leads to a situation in which the workers concerned may be offered fixed-term contracts which may be renewed an indefinite number of times until the age at which they may claim their entitlement to a retirement pension and are thus in danger, during a substantial part of their working life, of being excluded from the benefit of stable employment which constitutes, according to the Court, a major element in the protection of workers (see Mangold , paragraph 64). Secondly, it held that in so far as such legislation takes the age of the worker concerned as the only criterion for the application of a fixed-term contract of employment, when it has not been shown that fixing an age threshold, as such, regardless of any other consideration linked to the structure of the labour market in question or the personal situation of the person concerned, is objectively necessary to the attainment of the objective which is the vocational integration of unemployed older workers, it must be considered to go beyond what is appropriate and necessary in order to attain the objective pursued ( Mangold , paragraph 65).
68. Consequently, the answer to the first two questions is that Directive 2000/78, in particular Article 6(1), must be interpreted as meaning that it does not preclude national legislation, such as that at issue in the main proceedings, under which university professors are compulsorily retired when they reach the age of 68 and may continue working beyond the age of 65 only by means of fixed-term one-year contracts renewable at most twice, provided that that legislation pursues a legitimate aim linked inter alia to employment and labour market policy, such as the delivery of quality teaching and the best possible allocation of posts for professors between the generations, and that it makes it possible to achieve that aim by appropriate and necessary means. It is for the national court to determine whether those conditions are satisfied.
70. In accordance with the settled case-law of the Court, where the necessary conditions for the provisions of a directive to be relied on by individuals before the national courts against the State are satisfied, they may do so regardless of the capacity in which the State is acting, whether as employer or as public authority (see, to that effect, inter alia, Case C-188/89 Foster and Others  [1990] ECR I‑3313, paragraph 17, and Case C-157/02 Rieser Internationale Transporte  [2004] ECR I-1477, paragraph 23).
71. It is apparent from the case-file that the national court regards it as established that the University is a public institution against which the provisions of a directive capable of having direct effect may be relied on (see, in that regard, inter alia, Case C-180/04 Vassallo  [2006] ECR I‑7251, paragraph 26 and the case-law cited).
72. The Court has already had occasion to state the consequences arising, in a dispute between an individual and such an entity, from an incompatibility of national law with the prohibition, in relation to employment and working conditions, of discrimination on grounds of age, laid down in Articles 2 and 3(1)(c) of Directive 2000/78. It has held that national law which is contrary to that directive must, in such a case, be disapplied (see, to that effect, Petersen , paragraph 81).
73. Accordingly, the answer to be given to the referring court is that, since this is a dispute between a public institution and an individual, if national legislation such as that at issue in the main proceedings does not satisfy the conditions set out in Article 6(1) of Directive 2000/78, the national court must decline to apply that legislation.
The third question
75. In that regard it is important to bear in mind that, under the procedure laid down in Article 267 TFEU, the Court has no jurisdiction to interpret national law, that being exclusively for the national court (see Case C-53/04 Marrosu and Sardino  [2006] ECR I-7213, paragraph 54).