Ingeniørforeningen i Danmark v Tekniq.
Date: 2015-02-26
15. In the present case, Paragraph 2a(2) of the Law on salaried employees deprives certain workers of their right to severance allowance on the sole ground that they are entitled to draw on a State retirement pension scheme at the termination of their employment relationship. The documents before the court state that the entitlement to such a pension is subject to a minimum age requirement of 65 for workers born before 1954. The provision is thus based upon a criterion which is inextricably linked to the age of the employee (see, by analogy, judgment in Ingeniørforeningen i Danmark , C‑499/08, EU:C:2010:600, paragraph 23).
18. The first subparagraph of Article 6(1) of Directive 2000/78 states in effect that Member States may provide that a difference of treatment on grounds of age does not constitute discrimination if, within the context of national law, it is objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary (judgment in Schmitzer , C‑530/13, EU:C:2014:2359, paragraph 37).
19. It is settled case-law of the Court of Justice 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 (judgements in Specht and Others , C‑501/12 to C‑506/12, C‑540/12 and C 541/12, EU:C:2014:2005, paragraph 46 and the case-law cited, and Schmitzer  EU:C:2014:2359, paragraph 38)
20. In order to assess whether the aim pursued by the disposition at issue in the main proceedings is legitimate, it should be noted, first, that the severance allowance aims, as the national court points out by referring to the explanatory notes to the draft law on salaried employees, to facilitate the move to new employment for older workers who have many years of service with the same employer. Secondly, although the legislature intended to restrict the benefit of that allowance to those workers who, on termination of the employment relationship, are not eligible for a State retirement pension, the preparatory documents relating to that law, cited by the national court, show that the restriction is based on the premiss that those who are eligible for a State retirement pension will generally decide to leave the labour market (see, to that effect, judgment in Ingeniørforeningen i Danmark , EU:C:2010:600, paragraph 27).
22. The aim pursued by severance allowance of protecting workers with many years of service in an undertaking and helping them to find new employment falls within the category of legitimate employment policy and labour market objectives provided for in Article 6(1) of Directive 2000/78 (judgment in Ingeniørforeningen i Danmark , EU:C:2010:600, paragraph 29).
24. Consequently, objectives of the kind pursued by the provision of national law at issue in the main proceedings must, in principle, be considered, ‘objectively and reasonably’ as well as ‘within the context of national law,’ to justify a difference of treatment on grounds of age as provided for in the first subparagraph of Article 6(1) of Directive 2000/78 (judgment in Ingeniørforeningen i Danmark , EU:C:2010:600, paragraph 31).
25. It is nevertheless necessary to ascertain, according to the actual wording of the provision, whether the means used to achieve those aims are ‘appropriate and necessary’. In the present case, it must be examined whether Paragraph 2a(2) of the Law on salaried employees enables the employment policy objectives pursued by the legislature to be attained without unduly prejudicing the legitimate interests of workers who, as a result of that provision, find themselves deprived of the severance allowance on the ground that they are entitled to a State retirement pension to which the employer has contributed (see, to that effect, judgment in Ingeniørforeningen i Danmark , EU:C:2010:600, paragraph 32).
26. In that regard, it should be recalled that the Member States enjoy a broad discretion in the choice of the measures capable of achieving their objectives in the field of social and employment policy. However, that discretion cannot have the effect of frustrating the implementation of the principle of non-discrimination on grounds of age (judgment in Ingeniørforeningen i Danmark , EU:C:2010:600, paragraph 33 and the case-law cited).
27. Restricting severance allowance to only those workers who, on termination of the employment relationship, are not entitled to a State retirement pension does not appear unreasonable in the light of the objective pursued by the legislature of providing increased protection for workers for whom it is difficult to find new employment as a result of their length of service in an undertaking. Paragraph 2a(2) of the Law on salaried employees also makes it possible to limit the scope for abuse by preventing workers who intend to retire from claiming a severance allowance which is intended to support them while seeking new employment (see, to that effect, judgment in Ingeniørforeningen i Danmark , EU:C:2010:600, paragraph 34).
32. It is apparent from the foregoing that Paragraph 2a(2) of the Law on salaried employees does not go beyond what is necessary to attain the objectives which it pursues in so far as it excludes workers who will, on termination of the employment relationship, receive a State retirement pension from entitlement to severance allowance (see, to that effect, judgment in Ingeniørforeningen i Danmark , EU:C:2010:600, paragraph 40).
33. It should, however, be ascertained whether this finding is put into question by the fact that the provision treats those who will actually receive a State retirement pension from their employer in the same way as those who are eligible for such a pension (see, by analogy, judgment in Ingeniørforeningen i Danmark , EU:C:2010:600, paragraph 41).
34. Paragraph 2a(2) of the Law on salaried employees excludes all workers from entitlement to the severance allowance who, upon termination of their employment relationship, are eligible for a State retirement pension. It must therefore be examined whether such an exclusion does not go beyond what is necessary to achieve the objectives pursued (see, to that effect, judgment in Ingeniørforeningen i Danmark , EU:C:2010:600, paragraph 43).
35. It is apparent from the explanations provided by the national court and the Danish Government that that exclusion is based on the idea that, generally speaking, employees leave the labour market if they are eligible for a State retirement pension. As a result of that age-based assessment, a worker who satisfies the criteria for eligibility for a State retirement pension yet wishes to waive his pension rights temporarily and to continue in his career will not be able to claim severance allowance even though it is intended to protect him. Thus, in pursuing the legitimate aim of preventing the allowance from being claimed by persons who are not seeking new employment but will receive a replacement income in the form of a State retirement pension, the measure at issue deprives workers who have been made redundant and who wish to remain in the labour market of entitlement to the severance allowance merely because they could, inter alia because of their age, draw such a pension (see judgment in Ingeniørforeningen i Danmark , EU:C:2010:600, paragraph 44).
36. In paragraph 45 of the judgment in Ingeniørforeningen i Danmark  (EU:C:2010:600), the Court considered the exclusion of severance allowance, as provided for in Paragraph 2a(3) of the Law on salaried employees, where the salaried employee was entitled to receive an old-age pension from the employer upon termination of his employment relationship. It held that that provision made it more difficult for such a worker subsequently to exercise his right to work because he was not entitled to severance allowance whilst seeking new employment. At paragraph 46 of that judgment, the Court found that there was a risk that those workers concerned would thus be forced to accept a reduced pension entitlement leading to a significant reduction in their income in the long term.
37. However, the facts in the main proceedings can be distinguished from those giving rise to the judgment in Ingeniørforeningen i Danmark  (EU:C:2010:600).