Ingeniørforeningen i Danmark v Region Syddanmark.
Date: 2010-10-12
19. First, as regards whether the legislation at issue in the main proceedings falls within the scope of Directive 2000/78, it should be noted that it is apparent from both its title and preamble and 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, which include age.
20. More particularly, it follows from Article 3(1)(c) of Directive 2000/78 that the directive applies, within the framework of the areas of competence conferred on the European Union, ‘to all persons, as regards both the public and private sectors, including public bodies’, in relation to ‘employment and working conditions, including dismissals and pay’, inter alia.
21. By generally excluding a whole category of workers from entitlement to the severance allowance, Article 2a(3) of the Law on salaried employees thus affects the conditions regarding the dismissal of those workers for the purposes of Article 3(1)(c) of Directive 2000/78. That directive therefore applies to a situation such as the one which gave rise to the dispute before the national court.
23. In the present case, Article 2a(3) of the Law on salaried employees deprives certain workers of their right to the severance allowance on the sole ground that they are entitled to draw, on termination of the employment relationship, an old‑age pension from their employer under a pension scheme which they joined before attaining the age of 50 years. It is apparent from the documents before the court that entitlement to an old‑age pension is subject to a minimum age requirement which, in Mr Andersen’s case, was set under a collective agreement at 60 years. That provision is thus based on a criterion which is inextricably linked to the age of employees.
27. In order to assess whether the aim pursued by the legislation at issue in the main proceedings is legitimate, it should be noted, firstly, 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 employees who have many years of service with the same employer. Secondly, although the legislature intended to restrict entitlement to that allowance to workers who, on termination of the employment relationship, are not eligible for an old-age pension, the drafting history of that legislative measure, cited by the national court, shows that the restriction is based on the observation that those who are eligible for an old-age pension generally decide to leave the labour market.
29. The aim pursued by the 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.
31. Consequently, aims of the kind pursued by the national legislation at issue in the main proceedings must, in principle, be considered to justify ‘objectively and reasonably’ and ‘within the context of national law’, as provided for in the first subparagraph of Article 6(1) of Directive 2000/78, a difference of treatment on grounds of age.
32. It is also necessary to ascertain, according to the actual wording of that provision, whether the means used to achieve those aims are ‘appropriate and necessary’. In the present case it must be examined whether Article 2a(3) of the Law on salaried employees enables the attainment of the employment policy objectives pursued by the legislature 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 an old‑age pension to which the employer has contributed (see, to that effect, Case C‑411/05 Palacios de la Villa  [2007] ECR I‑8531, paragraph 73).
33. In that regard, it should be noted 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 (Case C‑144/04 Mangold  [2005] ECR I‑9981, paragraph 63, and Palacios de la Villa , paragraph 68). However, that discretion cannot have the effect of frustrating the implementation of the principle of non‑discrimination on grounds of age (Case C‑388/07 Age Concern England  [2009] ECR I‑1569, paragraph 51).
34. Restricting the severance allowance to only those workers who, on termination of the employment relationship, are not entitled to an old-age pension to which their employer has contributed does not appear unreasonable in the light of the objective pursued by the legislature of providing increased protection for workers for whom it is very difficult to find new employment as a result of their length of service for an undertaking. Article 2a(3) 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.
40. It is apparent from the foregoing that Article 2a(3) of the Law on salaried employees, in so far as it excludes from entitlement to the severance allowance workers who will receive, on termination of the employment relationship, an old‑age pension from their employer, does not go beyond what is necessary to attain the objectives which it pursues.
41. However, that finding does not provide a complete answer to the question referred by the national court. That court pointed out that that provision treats those who will actually receive an old-age pension from their employer in the same way as those who are eligible for such a pension.
42. It is true that the Danish legislature intervened in order to prevent such an exclusion from unduly prejudicing the legitimate interests of workers. Since 1996 Article 2a(3) of the Law on salaried employees has provided that the exclusion from entitlement to the severance allowance is not applicable to workers who have joined an old-age pension scheme with their employer after attaining the age of 50 years. That provision thus permits the allowance to be paid to workers who, although eligible for a pension, have not been affiliated to their pension scheme for long enough to receive a pension which is sufficient to guarantee them a reasonable income.
44. 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 an old-age pension from their employer and joined that pension scheme before attaining the age of 50 years. As a result of that age-based assessment, workers who satisfy the criteria for eligibility for a pension from their employer yet wish to waive their right to their pension temporarily and to continue with their career will not be able to claim the severance allowance even though it is intended to protect them. Thus, in pursuing the legitimate aim of preventing that allowance from being claimed by persons who are not seeking new employment but will receive a replacement income in the form of an occupational old-age pension, the measure at issue actually 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.
45. That measure makes it more difficult for workers who are eligible for an old-age pension subsequently to exercise their right to work because, unlike other workers with the same years of service, they are not entitled to the severance allowance when in the process of seeking new employment.
47. Consequently, by not permitting payment of the severance allowance to workers who, although eligible for an old-age pension from their employer, none the less wish to waive their right to such a pension temporarily in order to continue with their career, Article 2a(3) of the Law on salaried employees unduly prejudices the legitimate interests of workers in such a situation and thus goes beyond what is necessary to attain the social policy aims pursued by that provision.
49. Consequently, the answer to the question referred is that Articles 2 and 6(1) of Directive 2000/78 must be interpreted as precluding national legislation pursuant to which workers who are eligible for an old-age pension from their employer under a pension scheme which they have joined before attaining the age of 50 years cannot, on that ground alone, claim a severance allowance aimed at assisting workers with more than 12 years of service in the undertaking in finding new employment.
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