1 This request for a preliminary ruling concerns the interpretation of Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16), and of Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The request has been made in proceedings between Rechtsanwältin und Notarin and the Präsidentin des Oberlandesgerichts Hamm (President of the Higher Regional Court of Hamm, Germany) concerning the latter’s rejection of the application of the applicant in the main proceedings for the position of lawyer commissioned as notary.
3 Article 1 of Directive 2000/78 is worded as follows: ‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’
4 Article 2 of that directive provides: ‘1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1. 2. For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1; …’
5 Article 3 of that directive, entitled ‘Scope’, provides: ‘1. Within the limits of the areas of competence conferred on the [European Union], this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to: (a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; …’
6 Article 6(1) of that directive provides: ‘Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are 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. Such differences of treatment may include, among others: (a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection; (b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment; (c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.’
7 Paragraph 3 of the Bundesnotarordnung (Federal Code for Notaries), in the version applicable to the dispute in the main proceedings (‘the BNotO’), provides: ‘(1) Notaries are appointed for life, they exercise notarial functions as a primary occupation (notaries as a primary occupation). (2) In the judicial districts where, as of 1 April 1961, the office of notary was exercised on an ancillary basis only, lawyers remain the only persons who can be appointed to notarial functions, for the duration of their affiliation with the bar association competent for the judicial district concerned, with a view to simultaneously exercising notarial functions concurrently with their legal practice (lawyers commissioned as notaries).’
8 Paragraph 4 of the BNotO provides: ‘As many notaries as are required for the proper administration of justice shall be appointed. In particular, account shall be taken of the need to allow adequate access for individuals to notarial services and to maintain a balanced age structure of the members of the profession.’
9 Paragraph 5 of the BNotO reads as follows: ‘(1) Only individuals who are personally and professionally capable of exercising the functions of notary may be appointed. … (4) Whoever has reached the age of 60 years on the expiry of the deadline for applications for a notarial position cannot be appointed as notary for the first time. (5) Professional aptitude requires the prior granting of authorisation to exercise the functions of judge under the Deutsches Richtergesetz [(German law on the status of judges)]. …’
10 The explanatory memorandum (Bundestagsdrucksache (Bundestag printed paper) 11/6007, p. 10) to the BNotO states, as regards Paragraph 5(4) of the BNotO: ‘The introduction of the upper age limit of 60 years is intended - not least in view of the age-related increase in difficulty associated with learning the profession of notary - to combat a frequent turnover of office holders in the interests of continuity [in the profession]. At the same time, it serves to counteract the risk of population ageing within the profession of notary. Since learning the profession is not a factor when a former notary seeks reappointment or a notary seeks appointment in a different location, the upper age limit is intended only to apply in respect of first-time appointments.’
11 Paragraph 5b of the BNotO provides, in subparagraph 1: ‘The only persons who may be appointed as lawyers commissioned as notaries are those who, upon expiry of the deadline for applications, have 1. worked as a lawyer on a not insignificant scale for various clients for at least five years, 2. pursued the activity referred to in point No 1 for at least three years without interruption in the notarial jurisdiction concerned, 3. passed the professional examination for notaries … and 4. participated, from the calendar year following successful completion of the professional notary examination, in training courses specifically intended for notaries, organised by the chambers of notaries or professional organisations, for a duration of at least 15 hours per year.’
12 Paragraph 48a of the BNotO provides: ‘Notaries reach retirement age at the end of the month in which they reach the age of 70 years.’
13 The applicant in the main proceedings applied for the position of lawyer commissioned as notary in the district of the Amtsgericht (Local Court, Germany) (‘local court district’) in which she had been practising as a lawyer for more than three years. That application was rejected because she was over 60 years of age on the expiry of the deadline for applications.
14 The applicant in the main proceedings brought an action against that rejection decision before the Oberlandesgericht Köln (Higher Regional Court, Cologne, Germany), which is the referring court.
15 That court states that, unlike notaries who exercise notarial functions as a primary occupation (hauptberufliche Notare), the office of lawyer commissioned as notary (Anwaltsnotare) is exercised by lawyers concurrently with their legal practice. In principle, those lawyers can apply for a position of lawyer commissioned as notary only in the local court district in which they have been practising as lawyers for at least three years. It also follows from the order for reference that the office of a lawyer commissioned as notary ends, pursuant to Paragraph 48a of the BNotO, when the person concerned reaches the age of 70 years.
16 The number of notary positions in a given local court district is based on the demand for notarial services, whilst maintaining a balanced age structure. In 2022, four notary positions were advertised for the local court district in which the applicant in the main proceedings was practising as a lawyer. Only one position was filled, the others remaining vacant due to a lack of candidates who satisfied all the conditions for access to the position.
17 The referring court states that it is likely that, in the future, it will also not be possible to fill all the positions of lawyers commissioned as notaries in the local court district concerned because of a lack of sufficient candidates who satisfy the requirements for appointment to that position. Thus, in 2023, five notary posts were advertised for that district, of which only two will probably be filled. As regards all the local court districts within the jurisdiction of the defendant in the main proceedings, in which lawyers commissioned as notaries are to be appointed, there are likely to be only 39 candidates for the 69 positions advertised in 2023. Over the federal territory as a whole and excluding large urban centres, there will be a comparable number of notary positions that it will not be possible to fill. However, the referring court states that the failure to fill advertised notary positions has not yet resulted in notarial deeds not being drawn up or being drawn up only after a significant delay.
18 The referring court, while taking the view that the national provision at issue in the main proceedings, namely Paragraph 5(4) of the BNotO, pursues legitimate aims within the meaning of Article 6 of Directive 2000/78, asks whether, in the light of the judgment of 3 June 2021, Ministero della Giustizia (Notaries) (C‑914/19, EU:C:2021:430), that provision must be regarded as going beyond what is necessary to achieve the intended aims, in that it does not allow any derogation from the upper age limit laid down therein, even where it is impossible to fill several positions with younger candidates.
19 In those circumstances, the Oberlandesgericht Köln (Higher Regional Court, Cologne) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Are Article 21 of the [Charter] and Article 6(1) of [Directive 2000/78] to be interpreted as precluding national legislation which provides in mandatory terms that a person who has reached the age of 60 on expiry of the deadline for applications to the notary post in question cannot be appointed for the first time to the role of [lawyer commissioned as notary], even if more than one post must remain vacant because there are no suitable younger candidates in the local court district in which the application procedure took place and candidates from other local court districts are not permitted to apply? (2) Is [the first question] to be answered in the affirmative if it is to be expected that more than one advertised post of lawyer commissioned as notary will be impossible to fill with suitable candidates younger than 60 [years of age] in the same local court district in the following year? (3) Is [the first question] to be answered in the affirmative in any event because it is also to be expected that, also in other local court districts outside large urban centres, it will repeatedly prove impossible to fill all advertised posts of lawyer commissioned as notary with suitable candidates younger than 60 [years of age]? (4) Is no infringement of Article 21 of the [Charter] and Article 6(1) of [Directive 2000/78] present if the supply of notarial services is assured in a local court district even though an applicant over 60 years of age has not been appointed to the post of lawyer commissioned as notary solely on account of his or her age and more than one post has remained vacant?’
20 By its first and fourth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 6(1) of Directive 2000/78, read in the light of Article 21 of the Charter, must be interpreted as precluding national legislation which lays down an upper age limit of 60 years for the first appointment to the position of lawyer commissioned as notary.
21 As a preliminary point, it must be borne in mind, first, that the prohibition of discrimination based on, inter alia, age is enshrined in Article 21 of the Charter and that that prohibition was given specific expression by Directive 2000/78 in the field of employment and occupation (judgment of 3 June 2021, Ministero della Giustizia (Notaries), C‑914/19, EU:C:2021:430, paragraph 19 and the case-law cited). Accordingly, it must be ascertained whether the legislation at issue in the main proceedings falls within the scope of Directive 2000/78.
22 In that regard, by providing that persons who have reached the age of 60 years on the expiry of the deadline for applications for the notary position in question cannot be appointed for the first time to the role of lawyer commissioned as notary, Paragraph 5(4) of the BNotO affects the criteria for the selection of those persons. That provision must therefore be regarded as laying down rules regarding access to self-employment within the meaning of Article 3(1)(a) of Directive 2000/78 and, consequently, as falling within the scope of Directive 2000/78 (see, to that effect, judgments of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraph 30, and of 2 April 2020, Comune di Gesturi, C‑670/18, EU:C:2020:272, paragraphs 22 to 24).
23 Second, it is important to note that, in the present case, it is not disputed that the age requirement laid down by the national provision at issue, namely Paragraph 5(4) of the BNotO, results in certain persons being treated less favourably than other persons in comparable situations on the sole ground that they have reached the age of 60 years. That provision therefore introduces a difference of treatment based directly on age as referred to in Articles 1 and 2(2)(a) of Directive 2000/78, read together (see, to that effect, judgment of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraph 33, and order of 17 November 2022, PF (Age limit for the recruitment of police psychologists), C‑569/21, EU:C:2022:910, paragraph 49 and the case-law cited).
24 With regard to whether that difference of treatment may be justified in the light of Article 6(1) of Directive 2000/78, it should be borne in mind that the first subparagraph of Article 6(1) provides that differences of treatment on grounds of age are not to constitute discrimination, if, within the context of national law, they are 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. Article 6(1)(c) of that directive provides that those differences of treatment may include, among others ‘the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement’.
25 In the present case, it is apparent from the explanatory memorandum to the BNotO and from the case-law of the Bundesgerichtshof (Federal Court of Justice, Germany) that the aim of the national legislation at issue in the main proceedings is, first, to ensure the continued exercise of the profession of notary for a sufficiently long period before retirement in order to have an efficient and independent judicial administration, second, to ensure a high-quality notarial profession - within which lawyers do not have to familiarise themselves, during their final years of work, with a profession that they have never practised before - and, third, to ensure a balanced age structure in order to facilitate natural turnover in the profession of notary.
26 In that regard, it is important to note, from the outset, that reliance on several aims at the same time, which are either linked to one another or classed in order of importance, does not preclude the existence of a legitimate aim within the meaning of Article 6(1) of Directive 2000/78 (judgment of 2 April 2020, Comune di Gesturi, C‑670/18, EU:C:2020:272, paragraph 33 and the case-law cited).
27 As regards, first of all, the aim of ensuring the continued exercise of the profession of notary for a sufficiently long period before retirement in order to ensure an efficient and independent judicial administration, it should be recalled that the Court has already held, in essence, that such an aim falls within the scope of Article 6(1)(c) of Directive 2000/78, which allows a maximum age to be fixed for recruitment which is based on the training required for the position concerned or the need for a reasonable period of employment before retirement (see, to that effect, judgment of 3 June 2021, Ministero della Giustizia (Notaries), C‑914/19, EU:C:2021:430, paragraph 33).
28 Next, as regards the aim of ensuring a high-quality notarial profession and, therefore, of safeguarding the proper functioning of notarial privileges, it should be noted that it follows from the case-law of the Court that such an aim may also be regarded as a legitimate aim within the meaning of Article 6(1) of Directive 2000/78 (see, to that effect, judgment of 3 June 2021, Ministero della Giustizia (Notaries), C‑914/19, EU:C:2021:430, paragraphs 34 and 40).
29 Lastly, as for the aim of ensuring a balanced age structure in order to facilitate natural turnover in the profession of notary, it should be borne in mind that the Court has consistently held that the legitimacy of such an aim of public interest relating to employment policy cannot reasonably be called into question, since it features among the aims expressly laid down in the first subparagraph of Article 6(1) of Directive 2000/78 and, in accordance with the first subparagraph of Article 3(3) TEU, the promotion of a high level of employment is one of the ends pursued by the European Union (judgment of 3 June 2021, Ministero della Giustizia (Notaries), C‑914/19, EU:C:2021:430, paragraph 36 and the case-law cited).
30 Furthermore, it must be pointed out that encouragement of recruitment and access to a profession undoubtedly constitutes a legitimate aim of Member States’ social or employment policy, in particular where the promotion of access of young people to that profession is involved (see, to that effect, judgment of 3 June 2021, Ministero della Giustizia (Notaries), C‑914/19, EU:C:2021:430, paragraph 37 and the case-law cited).
31 More specifically, the aim of establishing an age structure that balances young and older notaries in order to encourage the appointment and promotion of young people, to improve the management of those appointments and thereby to prevent possible disputes concerning notaries’ fitness to work beyond a certain age, while at the same time seeking to provide a high-quality notarial service, can constitute a legitimate aim of employment and labour market policy (see, to that effect, judgment of 3 June 2021, Ministero della Giustizia (Notaries), C‑914/19, EU:C:2021:430, paragraph 38 and the case-law cited).
32 Consequently, the intended aims, in the present case, of the national legislation at issue in the main proceedings must, in principle, be regarded as being capable of providing objective and reasonable justification for a difference of treatment based directly on age.
33 However, it remains to be determined, in accordance with the actual wording of the first subparagraph of Article 6(1) of Directive 2000/78, whether the means deployed to achieve those aims are ‘appropriate and necessary’.
34 In the first place, as regards whether national legislation which provides that the upper age limit at issue in the main proceedings is ‘appropriate’, it is important, first, to note that it is common ground that that legislation ensures that candidates for the position of notary can exercise those functions for a period of at least 10 years before reaching the compulsory retirement age, set in the present case at 70 years, and that notaries must gain the required experience in order to provide a high-quality service. It follows that that legislation must be regarded as appropriate to achieve the aim of ensuring the continued exercise of the profession of notary for a sufficiently long period before retirement in order to ensure an efficient and independent judicial administration, and to achieve the aim of safeguarding the proper functioning of notarial privileges.
35 Second, it must be noted that the Court has already held that an age limit of 50 years for admission to the competition to access the profession of notary is an appropriate means of achieving the aim of facilitating the natural turnover and rejuvenation of that profession (judgment of 3 June 2021, Ministero della Giustizia (Notaries), C‑914/19, EU:C:2021:430, paragraph 49 and the case-law cited). The same conclusion must be reached, a fortiori, with regard to the national legislation at issue in the main proceedings, according to which a person who has reached the age of 60 years on the expiry of the deadline for applications for the notarial position in question cannot be appointed for the first time to the role of lawyer commissioned as notary.
36 In the second place, as regards whether the national legislation at issue in the main proceedings is ‘necessary’, it is important to note that it is for the competent authorities of the Member States to find the right balance between the different interests involved, bearing in mind that particular attention must be paid to the participation of older workers in the labour force and thus in economic, cultural and social life. Retaining older workers in the labour force promotes diversity in the workforce. The interest represented by the continued employment of those persons must, however, be taken into account in respecting other, potentially divergent, interests (see, to that effect, judgment of 2 April 2020, Comune di Gesturi, C‑670/18, EU:C:2020:272, paragraphs 43 and 44 and the case-law cited). Accordingly, when it is required to examine whether a measure such as that at issue in the main proceedings goes beyond what is necessary to achieve the intended aim, the national court must take into account not only the ability of the persons concerned to exercise a profession, but also the harm that that legislation may cause to those persons.
37 In the present case, first of all, it must be stated that the national legislation at issue in the main proceedings, unlike that examined in paragraphs 45 and 46 of the judgment of 3 June 2021, Ministero della Giustizia (Notaries) (C‑914/19, EU:C:2021:430), does not provide for a minimum period of exercise of the office of notary in order to be able to claim a retirement pension. Furthermore, the age limit for the first appointment to the office of notary is, in the present case, set at 60 years, whereas, in the case which gave rise to the abovementioned judgment, that upper age limit was 50 years. Therefore, the impact of the age limit of 60 years on the careers of the persons concerned, taken as a whole, is significantly reduced. It should therefore be considered that, prima facie, that legislation does not go beyond what is necessary to achieve the aims of ensuring the continued exercise of the profession of notary for a sufficiently long period before retirement in order to safeguard the proper functioning of notarial privileges.
38 In that regard, it will be for the referring court to ascertain whether, as the German Government has argued, the adverse effects arising from the national legislation at issue in the main proceedings concern, in fact, almost exclusively cases in which the office of notary must be exercised concurrently with an already established lawyer’s practice and affect only marginally the career progression of the persons concerned and their pension rights.
39 Next, as regards the question of whether the national legislation at issue in the main proceedings is necessary to ensure that the duration of the effective and economically viable activity of the office of lawyer commissioned as notary is in line with the investment costs necessary to set up and operate a notarial practice, it must be stated that the Court does not have sufficient information to enable it to rule in that regard. In any event, it is ultimately for the referring court, which alone has jurisdiction to assess the facts, to determine whether the legislation at issue in the main proceedings is necessary to achieve one of the intended aims.
40 Lastly, as regards the question of whether the national legislation at issue in the main proceedings is necessary to ensure, in particular, natural turnover and the rejuvenation of the profession of notary, it must be stated that the factual circumstances of the case at issue in the main proceedings clearly differ from those in the case which gave rise to the judgment of 3 June 2021, Ministero della Giustizia (Notaries) (C‑914/19, EU:C:2021:430). The situation at issue in the main proceedings is characterised by the fact that there are, at national level, two categories of notaries, namely, on the one hand, notaries as a primary occupation (hauptberufliche Notare) and, on the other hand, lawyers commissioned as notaries (Anwaltsnotare), whereas, in the case which gave rise to that judgment, only one category of notary was at issue, namely persons who practise that profession as a primary occupation.
41 In the present case, it is not disputed, which nonetheless it is for the referring court to ascertain, as the defendant in the main proceedings and the German Government have argued, that it follows from the statistics published by the German Federal Chamber of Notaries that, as regards the positions of ‘notaries as a primary occupation’, the number of candidates is significantly higher than the number of positions advertised, whereas for lawyers commissioned as notaries, the number of positions advertised exceeds the number of candidates who satisfy the upper age requirement laid down in Paragraph 5(4) of the BNotO.
42 Since Paragraph 5(4) of the BNotO applies both to ‘notaries as a primary occupation’ and to lawyers commissioned as notaries, it cannot, in the light of the foregoing, be considered that the upper age limit laid down therein exceeds what is necessary to achieve the objective of ensuring natural turnover and the rejuvenation of the profession concerned.
43 In the context of the examination of whether that legislation is necessary, which it is for the referring court to carry out, the latter will first, have to take into account the criteria on which the prospective assessment of the need to create positions for ‘notaries as a primary occupation’ and positions for lawyers commissioned as notaries is based, and to determine whether the need for positions thus reflects a ‘basic’ need or an ‘imperative’ need. Second, it will have to analyse whether the shortage of candidates for the positions of lawyers commissioned as notaries who satisfy the upper age requirement laid down in Paragraph 5(4) of the BNotO is due solely to demographic reasons - which would call into question whether the relevant legislation is necessary to achieve the intended objective - or also due to financial or economic considerations arising from the fact that there is a risk that the additional costs of setting up and maintaining a notarial practice, which those candidates must incur in addition to the costs which they already incur for the management of their law firm, will not be depreciated or will be difficult to depreciate, bearing in mind that other notaries, who are already established, operate in the adjacent local court district or districts and that ‘notaries as a primary occupation’ take over, in most cases, the notarial office of an outgoing ‘notary as a primary occupation’.
44 In that regard, it should however be noted that, in the present case, subject to verification by the referring court, it is not disputed that the national legislation at issue in the main proceedings is part of a legislative framework which applies indifferently throughout the national territory and that there is, at national level, a surplus of candidates for the positions of ‘notaries as a primary occupation’, which appears to call into question the argument that the shortage of candidates for the position of lawyer commissioned as notary is due to demographic reasons.
45 In the light of all of the foregoing considerations, the answer to the first and fourth questions is that Article 6(1) of Directive 2000/78, read in the light of Article 21 of the Charter, must be interpreted as not precluding national legislation which lays down an upper age limit of 60 years for the first appointment to a position of lawyer commissioned as notary, provided that that legislation pursues a legitimate employment and labour market policy objective and that, in the relevant legislative context and in the light of all the situations to which it applies, that legislation is appropriate and necessary for the achievement of that objective.
46 By its second and third questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 6(1) of Directive 2000/78, read in the light of Article 21 of the Charter, must be interpreted as precluding national legislation which lays down an upper age limit of 60 years for the first appointment to a position of lawyer commissioned as notary, including in the situation in which it is found that, for several consecutive years, positions for lawyers commissioned as notaries have not been filled because of a lack of candidates, in respect of such positions advertised in the local court district concerned or in the district of other courts, who satisfy the upper age condition for admission to the profession of notary.
47 In that regard, it must be noted that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the legislative and factual context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 20 December 2017, Erzeugerorganisation Tiefkühlgemüse, C‑516/16, EU:C:2017:1011, paragraph 80 and the case-law cited).
48 There is nothing in the file before the Court to show that the case in the main proceedings actually falls within a factual framework such as that described by the referring court in its second and third questions. Those questions are based on a hypothesis which, according to the referring court, could materialise in the future, but the materialisation of which is not certain. Furthermore, the order for reference does not contain any evidence to suggest that a situation such as that envisaged in those two questions has already arisen in the past.
49 It follows that to answer the second and third questions in those circumstances would clearly be to provide an advisory opinion on a hypothetical question, in disregard of the tasks assigned to the Court in the context of the judicial cooperation established by Article 267 TFEU (see, to that effect, judgment of 20 December 2017, Erzeugerorganisation Tiefkühlgemüse, C‑516/16, EU:C:2017:1011, paragraph 82 and the case-law cited).
50 Consequently, the second and third questions are inadmissible.
51 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.