YS v NK.
Date: 2020-09-24
In that regard, it must first of all be borne in mind that, in accordance with Article 3(1)(a) of Directive 79/7, the directive applies only to statutory schemes that provide protection against, inter alia, the risk of ‘old age’  (see, to that effect, judgment of 22 November 2012, Elbal Moreno, C‑385/11, EU:C:2012:746, paragraph 26 and the case-law cited).
By contrast, benefits granted under a pension scheme which essentially relates to the employment of the interested party concerned form part of the pay received by that person and come within the scope of Article 157 TFEU (see, to that effect, judgment of 5 November 2019, Commission v Poland (Independence of ordinary courts), C‑192/18, EU:C:2019:924, paragraph 59 and the case-law cited). Therefore, they constitute ‘pay’, within the meaning of Article 3(1)(c) of Directive 2000/78 (see, to that effect, judgment of 15 January 2019, E. B., C‑258/17, EU:C:2019:17, paragraphs 44 and 48).
Moreover, it is apparent from Articles 1(c) and 5(c) of Directive 2006/54 that the directive relates to occupational social security schemes. The Court has previously held that schemes of pensions paid to a worker by reason of his/her employment relationship with the public employer also fall within the material scope of Article 5 of Directive 2006/54 (see, to that effect, judgment of 5 November 2019, Commission v Poland (Independence of the ordinary courts), C‑192/18, EU:C:2019:924, paragraphs 72 and 73).
Next, it must be stated that the national legislation at issue, pursuant to which (i) part of the amount of the occupational pension which the employer is contractually bound to pay directly to its former worker must be withheld at source by that employer and (ii) the contractually agreed indexation of the amount of that benefit is ineffective, result in a reduction of the amount of the pension that that undertaking is bound to pay to that former worker. Accordingly, that legislation affects the latter’s conditions of pay within the meaning of  Article 3(1)(c) of Directive 2000/78, and the occupational social security scheme within the meaning of Article 5(c) of Directive 2006/54. Therefore, those directives apply to a situation such as that in the main proceedings (see, by analogy, judgment of 16 June 2016, Lesar, C‑159/15, EU:C:2016:451, paragraph 18 and the case-law cited).
In that regard, the Court has held that the existence of such a particular disadvantage can be established, for example, if it were proved that national legislation is to the disadvantage of a significantly greater proportion of individuals of one sex as compared with individuals of the other sex (judgment of 3 October 2019, Schuch-Ghannadan, C‑274/18, EU:C:2019:828, paragraph 45 and the case-law cited).
As is also apparent from recital 30 of Directive 2006/54, the appreciation of the facts from which it may be presumed that there has been indirect discrimination is the task of the national court, in accordance with national law or national practices which may provide, in particular, that indirect discrimination may be established by any means, including on the basis of statistical evidence (judgment of 3 October 2019, Schuch-Ghannadan, C‑274/18, EU:C:2019:828, paragraph 46 and the case-law cited).
Thus, it is for the national court to assess to what extent the statistical evidence  adduced before it is valid and whether it can be taken into account, that is to say, whether, for example, it illustrates purely fortuitous or short-term phenomena, and whether it  is sufficiently significant (see, to that effect, judgment of 3 October 2019, Schuch-Ghannadan, C‑274/18, EU:C:2019:828, paragraph 48 and the case-law cited).
As regards statistical evidence, the Court has also held (i) that the referring court must take into account all those workers subject to the national legislation in which the difference in treatment has its origin and (ii) that the best approach to the comparison is to compare the respective proportion of workers that are and are not affected by the alleged difference in treatment among the men in the workforce who come within the scope of that legislation with the same proportion of women in the workforce coming within its scope (see, to that effect, judgments of 6 December 2007, Voß, C‑300/06, EU:C:2007:757, paragraphs 40 and 41, and of 3 October 2019, Schuch-Ghannadan, C‑274/18, EU:C:2019:828, paragraph 47).
Consequently, as stated by the Advocate General in points 65 to 67 of her Opinion, should the available statistics actually show that the percentage of former workers whose amount of such occupational pension has been affected by the national legislation at issue is considerably higher among male former workers coming within the scope of that legislation than among female former workers coming within its scope, it would be necessary to hold that that situation is evidence of indirect sex discrimination, contrary to Article 5(c) of Directive 2006/54, unless that legislation is justified by objective factors wholly unrelated to any discrimination based on sex (see, by analogy, judgment of 6 December 2007, Voß, C‑300/06, EU:C:2007:757, paragraph 42).
In accordance with the Court’s case-law, this is particularly the case where the means chosen reflect a legitimate social-policy objective, are appropriate to achieve the aim pursued by the legislation at issue and are necessary in order to do so, it being understood that they can be considered appropriate to achieve the stated aim only if they genuinely reflect a concern to attain that aim and are pursued in a consistent and systematic manner (see, to that effect, judgment of 17 July 2014, Leone, C‑173/13, EU:C:2014:2090, paragraphs 53 and 54 and the case-law cited).
In addition, the Court has held that, in choosing the measures capable of achieving the aims of their social and employment policy, the Member States have a broad margin of discretion (judgments of 6 April 2000, Jørgensen, C‑226/98, EU:C:2000:191, paragraph 41, and of 20 October 2011, Brachner, C‑123/10, EU:C:2011:675, paragraph 73 and the case-law cited).
It also follows from the Court’s case-law that, while it is ultimately for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent the legislative provision in question is justified by such an objective reason, the Court of Justice, which is called on to provide answers of use to the national court in the context of a reference for a preliminary ruling, may provide guidance based on the documents in the file of the case in the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (judgment of 17 July 2014, Leone, C‑173/13, EU:C:2014:2090, paragraph 56 and the case-law cited).
In that regard, the Court has previously held that budgetary considerations cannot justify discrimination against one of the sexes (judgment of 23 October 2003, Schönheit and Becker, C‑4/02 and C‑5/02, EU:C:2003:583, paragraph 85 and the case-law cited).
Pursuant to Article 1 and Article 2(1) and (2)(b) of Directive 2000/78, any indirect discrimination on grounds of, inter alia, age is prohibited. Indirect discrimination is to be taken to occur where an apparently neutral provision, criterion or practice would put persons of a certain age at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary (judgment of 7 February 2019, Escribano Vindel, C‑49/18, EU:C:2019:106, paragraphs 41 and 42).
Moreover, as the Advocate General recalled in point 89 of her Opinion, the mere fact that a new legal framework has been applied in respect of persons under a certain age cannot give rise to indirect discrimination on grounds of age to the detriment of other persons to whom the former legal framework applies (see, to that effect, judgment of 14 February 2019, Horgan and Keegan, C‑154/18, EU:C:2019:113, paragraph 28).
It should also be borne in mind that the fundamental rights guaranteed by the Charter are applicable in all situations governed by EU law and that they must, therefore, be complied with inter alia where national legislation falls within the scope of EU law (judgment of 21 May 2019, Commission v Hungary (Rights of usufruct over agricultural land), C‑235/17, EU:C:2019:432, paragraph 63 and the case-law cited).
It is nevertheless necessary that, in the area concerned, EU law imposes specific obligations on Member States with regard to the situation at issue in the main proceedings (see, to that effect, judgment of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 35).
Regarding, more specifically, discrimination on grounds of age, it is apparent from the case-law of the Court that, where they adopt measures which fall within the scope of Directive 2000/78, which gives specific expression, in the domain of employment and occupation, to the principle of non-discrimination on grounds of age, Member States must respect the directive (judgment of 21 January 2015, Felber, C‑529/13, EU:C:2015:20, paragraph 16 and the case-law cited). Likewise, Member States must, when they adopt measures which fall within the scope of Directive 2006/54, which gives specific expression, in that domain, to the principle of non-discrimination on grounds of sex, respect that directive.
In those circumstances, the questions of the referring court relating to whether there is discrimination on grounds of age and sex must be examined, as they are in the context of the answers to the first and second questions, in the light of Directives 2000/78 and 2006/54 alone, respectively (see, to that effect, judgment of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraph 25).
As regards, in the second place, Article 16 of the Charter, it should be borne in mind that the freedom to conduct a business enshrined in that article includes the freedom of contract, which is the subject of the seventh question referred for a preliminary ruling (see, to that effect, judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 42). As was noted by the Advocate General in point 110 of her Opinion, that freedom includes the freedom to fix or agree the price for a service.
However, the freedom to conduct a business does not constitute an unfettered prerogative, but must be examined in the light of its function in society, and may thus be subject to interventions on the part of public authorities which may limit the exercise of economic activity in the public interest. In addition, in accordance with Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the latter must be provided for by law and respect the essence of those rights and freedoms and, in compliance with the principle of proportionality, must be necessary and actually meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (see, to that effect, judgment of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraphs 157 to 160).
Regarding, in the third place, Article 17(1) of the Charter, enshrining the right to property, it should be borne in mind that the protection granted by that provision applies to rights with an asset value creating an established legal position under the legal system, enabling the holder to exercise those rights autonomously and for his or her benefit (see, to that effect, judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 34).
It must be held that the conclusion of a contract relating to an occupational pension generates a proprietary interest with respect to the recipient of that pension. In addition, the withholding by the undertaking concerned of part of the contractually agreed amount and the non-application of the contractually agreed indexation affect that proprietary interest. Nevertheless, the right guaranteed by Article 17(1) of the Charter is not absolute, so that it cannot be interpreted as entitling a person to a pension of a particular amount (see, to that effect, judgment of 13 June 2017, Florescu and Others, C‑258/14, EU:C:2017:448, paragraphs 50 and 51).
However, the Court has held that the principle of effective judicial protection guaranteed by Article 47 of the Charter does not require it to be possible, as such, to bring a free-standing action which seeks primarily to dispute the compatibility of national provisions with EU law, provided one or more legal remedies exist, which make it possible to ensure, indirectly, respect for an individual’s rights under EU law (judgment of 21 November 2019, Deutsche Lufthansa, C‑379/18, EU:C:2019:1000, paragraph 61 and the case-law cited).