HK Danmark acting on behalf of Glennie Kristensen v Experian A/S.
Date: 2013-09-26
18. The Court has consistently held that a directive, since it is technically directed at Member States, cannot of itself impose obligations on an individual and cannot, therefore, be relied on as such against an individual (see, inter alia, Case 152/84 Marshall  [1986] ECR 723, paragraph 48; Case C‑91/92 Faccini Dori  [1994] ECR I‑3325, paragraph 20; and Case C‑555/07 Kücükdeveci  [2010] ECR I‑365, paragraph 46).
19. However, it must also be recalled that the Court has acknowledged the existence of a principle of non-discrimination on grounds of age which must be regarded as a general principle of European Union law and to which specific expression is given by Directive 2000/78 in the field of employment and occupation (see, to that effect, Kücükdeveci , paragraph 21). The prohibition of any discrimination on grounds, inter alia, of age is set out in Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which, from 1 December 2009, has the same legal status as the Treaties.
20. For the principle of non-discrimination on grounds of age to apply in a situation such as that at issue in the case in the main proceedings, that situation must fall within the scope of European Union law ( Kücükdeveci , paragraph 23).
25. In that context, the scope of Directive 2000/78 must be understood, in the light of Article 3(1)(c) and (3) of the directive 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, in particular, Case C‑262/88 Barber  [1990] ECR I‑1889, paragraph 12).
42. In this connection, it should be recalled that, according to settled case-law, provisions of European Union law must be interpreted and applied uniformly in the light of the versions existing in all the languages of the European Union. Where there is divergence between the various language versions of a provision of European Union law, the provision in question must be interpreted by reference to the general scheme and purpose of the rules of which it forms part (see, inter alia, Case C‑280/04 Jyske Finans  [2005] ECR I‑10683, paragraph 31, and the case-law cited).
45. The general scheme and purpose of Directive 2000/78 support that conclusion. That directive gives specific expression, in the field of employment and occupation, to the principle of non-discrimination on grounds of age, which is regarded as being a general principle of European Union law (see, to that effect, Kücükdeveci , paragraph 21). The prohibition of any discrimination on grounds, inter alia, of age is, moreover, set out in Article 21 of the Charter, which, from 1 December 2009, has the same legal status as the Treaties.
46. 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 restrictively (see Case C‑546/11 Dansk Jurist- og Økonomforbund  [2013] ECR I‑0000, paragraph 41).
47. An interpretation of Article 6(2) of Directive 2000/78 to the effect that that provision applies to any type of occupational social security scheme would have the effect of extending its scope, contrary to the restrictive nature of the interpretation to which that provision must be subject ( Dansk Jurist- og Økonomforbund , paragraph 42).
48. It follows that Article 6(2) of Directive 2000/78 applies only to occupational social security schemes that cover the risks of old age and invalidity ( Dansk Jurist- og Økonomforbund , paragraph 43).
52. That argument cannot be accepted. First, the pension contributions at issue in the main proceedings form part, as has been established in paragraph 30 of this judgment, of Experian employees’ pay. Accordingly, the age-related increases in those contributions are liable to produce effects going beyond the mere fixing of ages for admission or entitlement to retirement benefits. Secondly, as has been pointed out in paragraph 46 of this judgment, Article 6(2) of Directive 2000/78 must be interpreted strictly. Consequently, not all aspects of an occupational social security scheme covering the risks of old age and invalidity, such as, inter alia, the setting of the amount of contributions to the scheme, fall within the scope of that provision, but only those that are expressly referred to therein.
56. Even though the referring court has limited its questions to the interpretation of Article 6(2) of Directive 2000/78, that does not prevent the Court from providing the national court with all the elements of interpretation of European Union law which may be of assistance in adjudicating on the case before it, whether or not that court has specifically made reference to them in its question (see, to that effect, Case C‑503/09 Stewart  [2011] ECR I‑6497, paragraph 79, and the case-law cited).
60. It should be recalled in this connection 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).
67. It must be recalled, nevertheless, that, in accordance with settled case-law, a measure is appropriate for ensuring attainment of the aims pursued only if it genuinely reflects a concern to attain them in a consistent and systematic manner (Joined Cases C‑159/10 and C‑160/10 Fuchs and Köhler [2011] ECR I‑6919, paragraph 85).