delivered on 7 February 2013 (1)

Case C‑546/11

Dansk Jurist- og Økonomforbund, acting on behalf of Erik Toftgaard

(Request for a preliminary ruling from the Højesteret (Denmark))

‘Equal treatment in employment and occupation — Directive 2000/78/EC — Prohibition of discrimination on grounds of age — National provision which, in the event that the post of a civil servant ceases to exist, provides for the continuation of remuneration for three years if the civil servant has not reached the age of 65 — Exception provided for in Article 6(2) of the directive — Occupational social security schemes — Scope of the exception — Justification of differences of treatment under Article 6(1) of the directive’

I – Introduction

1.In Denmark, civil servants who have been dismissed on grounds of redundancy continue to receive their original salary for three years. However, civil servants who have reached the age of 65 – and are therefore able, but are not obliged, to retire – have no entitlement to that availability pay. The question raised in this case is whether that restriction should be seen as discrimination on grounds of age, which is contrary to Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. (2)

2.In that connection the Court of Justice is asked for the first time to examine the scope of the exception to the prohibition of discrimination, provided for in Article 6(2) of that directive, for occupational social security schemes. (3)

II – Legal framework

A – European Union law

3.The scope of Directive 2000/78 is set out in Article 3 thereof: ‘(1) Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:… (3) This Directive does not apply to payments of any kind made by state schemes or similar, including state social security or social protection schemes.’

4.Article 6 of Directive 2000/78, which governs the ‘justification of differences of treatment on grounds of age’, reads as follows: ‘(1) 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; (2) Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.’

B – National law

5.Directive 2000/78 was transposed in Denmark by the Lov om forbud mod forskelsbehandling på arbejdsmarkedet m.v. (4) Paragraph 6a thereof transposes Article 6(2) of Directive 2000/78. It permits the fixing of ages for admission to occupational social security schemes (5) and the use of age criteria in actuarial calculations in the context of such schemes.

6.Paragraph 32(1) and (4) of the Tjenestemandslov (Law on Civil Servants), (6) applicable at the date when Mr Toftgaard was dismissed, provided: ‘1. A civil servant who is dismissed on grounds of redundancy because of restructuring or reorganisation of working methods shall continue to receive his current salary for three years, subject to subparagraphs 3 to 5 below. 4. There shall be no entitlement to availability pay where the civil servant concerned: (1) is assigned to another post or is offered a post which he is obliged to accept pursuant to Paragraphs 12 and 13; (2) has reached the age of 65; (3) has reached the age-limit fixed for retirement from his post, or (4) at the date of his dismissal, is no longer able, for reasons of illness or unsuitability, to take up a post which he is obliged to accept pursuant to Articles 12 and 13.’

7.Availability pay is disbursed by the appointing authority and the civil servant is obliged to remain available to it during the period in which he receives the availability pay. If the appointing authority assigns him a suitable post, the civil servant must accept it. If the civil servant fails to comply with that obligation, he loses the entitlement to availability pay.

8.Paragraph 29 of the Tjenestemandslov provided for general compulsory retirement at the age of 70; it was, however, repealed on 19 June 2008, thus after Mr Toftgaard retired.

9.Under the Tjenestemandspensonslov (7) civil servants acquire a pension entitlement which is dependent upon their period of service as a civil servant, including the period in which they receive availability pay. In a situation in which a civil servant would in principle have been entitled to availability pay, but it was not paid because of the limitation provided for in the Tjenestemandslov to civil servants under the age of 65, pensionable service years are also acquired for the period in which availability pay was not paid to the civil servant because of the age limit.

III – Facts, questions referred for a preliminary ruling and proceedings before the Court

10.Erik Toftgaard was the Head of the district administration of Vejle. He was dismissed on 8 May 2006 with effect from 31 December 2006. From that point he was entitled to pension benefits as he was already 66 years old. The dismissal was justified by fact that his post ceased to exist following the restructuring of the regional administration. Mr Toftgaard stated that he did not want to retire but wished to be transferred to another post and that he was willing to take a reduction in salary in that connection.

Mr Toftgaard’s employer refused him the availability pay to which civil servants are entitled for three years as a result of dismissal on grounds of redundancy. The justification for the refusal was Paragraph 32 of the Tjenestemandslov, in accordance with which there is no entitlement to availability pay if, at the time of dismissal, the civil servant was 65 years old and was therefore entitled to a civil service pension and the general State retirement pension. Mr Toftgaard was entitled, but not obliged, to retire at the age of 65.

Mr Toftgaard regards this refusal to pay availability pay as discrimination on grounds of age. Accordingly, represented by the Dansk Jurist- og Økonomforbund, (8) he brought an action against his employer, Indenrigs- og Socialministeriet, (9) before Østre Landsret (Eastern Regional Court). (10) Following the dismissal of that case, he brought an appeal before Højesteret (the Supreme Court). Højesteret considers that settlement of the dispute requires an interpretation of Article 6(1) and (2) of Directive 2000/78.

Højesteret therefore, by order of 7 October 2011, received at the Court Registry on 26 October 2011, stayed proceedings and referred the following questions to the Court for a preliminary ruling:

(1)‘(1) Is Article 6(2) of Directive 2000/78 to be interpreted as meaning that Member States may provide that the fixing of age limits for access or entitlement to benefits under occupational social security schemes does not constitute discrimination only where those social security schemes relate to retirement or invalidity benefits?

(2)Is Article 6(2) to be interpreted as meaning that the possibility of fixing age limits concerns only access to the scheme, or is the provision to be interpreted as meaning that the possibility of fixing age limits also concerns entitlement to the payment of benefits under the scheme?

(3)If question 1 is answered in the negative: Can the expression ‘occupational social security schemes’ in Article 6(2) include a scheme such as the “rådighedsløn” (availability pay) as referred to in Paragraph 32(1) of the Danish Law on Civil Servants (Tjenestemandslov), under which a civil servant may, as special protection in the event of dismissal due to his post ceasing to exist, retain his current salary for three years and continue to be credited for years of pensionable service, provided he remains available for assignment to another suitable post?

(4)Is Article 6(1) of Directive 2000/78 to be interpreted as meaning that it does not preclude a national provision such as Paragraph 32(4)(2) of the Tjenestemandslov, under which an availability salary is not paid to a civil servant who has reached the age at which the State retirement pension becomes payable, if his job ceases to exist?’

In the proceedings before the Court of Justice, in addition to the applicant in the main proceedings, represented by DJØF, and the Kommunernes Landsforening, (11) the Danish Government, the United Kingdom Government and the European Commission submitted written and oral observations. Danske Regioner submitted joint written observations with KL.

IV – Legal assessment

A – The first question

First, it is necessary to examine whether Directive 2000/78 is applicable. According to Article 3(1)(c) thereof, Directive 2000/78 applies ‘within the limits of the areas of competence conferred on the Community … 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’.

As a senior civil servant in a Danish regional authority, Mr Toftgaard worked ‘in the public sector’ or for a ‘public body’ and therefore falls within the scope ratione personae of Directive 2000/78.

From Article 3(3), read in conjunction with recital 13 in the preamble to the directive, it is clear that the directive does not apply to social security and social protection schemes whose benefits are not treated as ‘pay’ within the meaning given to that term for the purpose of applying Article 157 TFEU, (12) nor to any kind of payment by the State aimed at providing access to employment or maintaining employment.

The applicability of the directive in the present case could stem either from the fact that the availability pay must be regarded as pay within the meaning of Article 157(2) TFEU or that it must fall under the concept of ‘dismissals’. In my opinion the former is correct.

As the Court has consistently held, ‘pay’ within the meaning of Article 157(2) TFEU is to be construed as meaning any consideration whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his or her employment from his or her employer. (13)

The obligation to pay arises solely from the employment. The availability pay is paid monthly for three years and corresponds to the level of salary received by the civil servant before dismissal. (14) It is true that that availability pay is not paid initially as consideration for an actual activity with the employer, but the civil servant must be prepared, and is obliged, to take up a suitable post offered to him by his employer at any time. If he does not take up that post, he loses the entitlement to availability pay.

Payment is made by reason of the employment. The fact that the civil servant continues to accrue pension entitlements during the period in which he is entitled to availability pay indicates that the employment relationship still exists. In that respect, availability pay differs from severance pay, with regard to which the legal relationship between the employer and employee definitively ends and a settlement amount is paid on a single occasion when the worker leaves his post.

Availability pay is also not a payment by the State aimed at providing access to employment or maintaining employment, as set out in recital 13 in the preamble to Directive 2000/78. In the present case, the State pays the availability pay in its capacity as a public employer.

Directive 2000/78 is therefore also applicable ratione materiae. Consequently, it is necessary next to examine whether there is discrimination on the grounds of age.

Article 1 of Directive 2000/78, read in conjunction with Article 2(1) thereof, prohibits age discrimination in employment and occupation. Discrimination is any difference in treatment which is not justified.

Pursuant to Article 2(2)(a), read in conjunction with Article 1 of the directive, direct discrimination on the grounds of age is to 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 grounds of age.

Since availability pay is not available to civil servants over the age of 65, but such persons only receive pensions, which are of a lower amount, a provision such as Paragraph 32 of the Tjenestemandslov leads to direct discrimination on grounds of age.

27.KL and the Danish Government are of the opinion that that discrimination is justified pursuant to Article 6(2) of the directive.

28.In the German language version, Article 6(2) of the directive allows Member States to provide ‘dass bei den betrieblichen Systemen der sozialen Sicherheit die Festsetzung von Altersgrenzen als Voraussetzung für die Mitgliedschaft oder den Bezug von Altersrente oder von Leistungen bei Invalidität einschließlich der Festsetzung unterschiedlicher Altersgrenzen im Rahmen dieser Systeme für bestimmte Beschäftigte oder Gruppen bzw. Kategorien von Beschäftigten und die Verwendung von Alterskriterien im Rahmen dieser Systeme für versicherungsmathematische Berechnungen keine Diskriminierung wegen des Alters darstellt, solange dies nicht zu Diskriminierungen wegen des Geschlechts führt’ [that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex]. (15)

29.The referring court’s first question concerns the extent of that exception. Do only those occupational schemes which concern retirement and invalidity fall under Article 6(2) of Directive 2000/78 or do all types of occupational social security schemes (for example, also those concerning illness or unemployment)? This question may be explained against the background of the Danish language version of Article 6(2) of the directive. There, mention is made only of occupational social security schemes – there is no mention of the terms retirement or invalidity. (16) In all other language versions, however, reference is made to retirement benefits and invalidity benefits.

30.It is settled case-law that 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. (17) The wording used in one language version cannot serve as the sole basis for the interpretation of a provision in the country concerned or be sufficient to override the other language versions. This would be incompatible with the requirement of the uniform application of European Union law. (18)

31.Where there is divergence between the various language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part. (19)

32.In accordance with the wording of all the language versions with the exception of the Danish, Article 6(2) of the directive is not to apply to all types of occupational social security schemes, but only to retirement and invalidity pensions.

33.If the European Union legislature had wished to make a general reference to all types of occupational schemes with Article 6(2) of the directive, as is the view taken by the Danish Government, it would not have mentioned explicitly in all other language versions two specific schemes, particularly given that it added no words such as ‘inter alia’ which would point to a list of examples.

34.The fact that the mention of two specific social security schemes is not merely illustrative is particularly clear in the French language version, for example. There, commas are used to enclose the reference to occupational social security schemes, which clearly shows that the mention of retirement and invalidity pensions is exhaustive. (20)

35.If more than the expressly mentioned social security schemes were excepted, one would expect that the directive would have explicitly listed which types of social security schemes should be covered. For example, the Anti‑discrimination Directive 2006/54/EC on the equal treatment of men and women in matters of employment and occupation (21) explicitly mentions the schemes covered. Such a listing would, indeed, be superfluous if Article 6(2) is in any case supposed to cover only the two schemes explicitly mentioned therein, namely retirement and invalidity pensions.

36.A narrow interpretation of Article 6(2) of Directive 2000/78 is justified by, in particular, teleological arguments and the higher‑ranking prohibition of age discrimination.

37.The directive gives specific expression to non-discrimination on grounds of age, which is acknowledged as a general principle of European Union law (22) and enshrined in Article 21(1) of the Charter of Fundamental Rights. Since 1 December 2009, pursuant to Article 6(1) TEU, that Charter has had the same legal value as the Treaties. An exception to the principle of the prohibition of discrimination on grounds of age must in principle be interpreted strictly. (23) Consequently, Article 6(2) of the directive should not be interpreted broadly as covering all types of occupational social security schemes.

38.Therefore, Article 6(2) of Directive 2000/78 covers only schemes for old‑age and invalidity care. Since a benefit such as Danish availability pay concerns neither retirement nor invalidity care, Article 6(2) of Directive 2000/78 does not apply to the present case.

39.The exception in Article 6(2) of Directive 2000/78 applies only to occupational social security schemes which concern a retirement pension or invalidity benefits.

B – The second question

40.By its second question, the referring court wishes to ascertain whether the possibility of fixing age limits in accordance with Article 6(2) of Directive 2000/78 concerns only access to an occupational social security scheme or also entitlement to the payment of benefits under a scheme of that kind.

41.In view of my response to the first question, according to which a benefit such as availability pay even in principle does not fall within the scope of Article 6(2), this question does not require a response.

C – The third question

42.The third question referred for a preliminary ruling arises only in the event of a negative answer to the first and, given the response, there is therefore also no need to discuss it. Since, owing to the fact that it does not concern retirement or invalidity, availability pay does not fall within the scope of Article 6(2) of the directive, there is no need to answer whether it actually constitutes a benefit from an occupational social security scheme.

D – The fourth question

43.The fourth question referred for a preliminary ruling seeks to ascertain whether the difference of treatment on grounds of age in connection with the payment of a benefit such as the Danish availability pay may be justified pursuant to Article 6(1) of the directive.

44.Pursuant to the first paragraph of Article 6(1) of Directive 2000/78, Member States may provide 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’.

By that form of words, Directive 2000/78 in essence sets out the principle of proportionality as the requirement recognised under European Union law governing the justification of differences of treatment. In short, therefore, a direct difference of treatment is justified under Article 6(1) of Directive 2000/78 if the measure giving rise to it is based on a legitimate aim and passes the proportionality test. (24)

a) Legitimate aim

46.Legitimate aims within the meaning of the first subparagraph of Article 6(1) of Directive 2000/78 are, while the list is not exhaustive, social policy objectives, such as those related to employment policy, the labour market or vocational training. (25)

47.The actual wording of the Tjenestemandslov does not provide any information on the aims pursued by Paragraph 32 of that legislation. It does not indicate why civil servants who have already reached the age of 65, and may therefore receive a pension, are excluded from receiving availability pay. However, other indications taken from the general context of the statutory provision may help to identify the aim behind it. (26)

48.In the present case, the drafting history set out in the Order for Reference sheds some light on the aims pursued by Paragraph 32 of the Tjenestemandslov.

49.Availability pay dates back to 1919, when it was called ‘stand‑by pay’. The purpose of availability pay is, it appears, to safeguard the independence of civil servants from personal and political pressure and to protect them from overly radical changes in their conditions. Amendments to availability pay were introduced in 1969. Inter alia, payment was limited to three years, and it was to be paid no longer than to the age limit stipulated for the post. In the drafting history, it appears that the reason for the amendments was the desire to strike a balance between, on the one hand, the State’s need to be able to adapt and improve the efficiency of the public administration and, on the other, the protection of civil servants’ independence.

50.By means of a legislative amendment in 1991, access to availability pay was limited to the effect that persons who have reached the age of 67 (later lowered to 65) are no longer entitled to receive it.

51.As justification for that restriction, it was stated in the explanatory statement on the legislation that it could generally be assumed that it would not be possible to redeploy civil servants who had reached pensionable age to an alternative post. Therefore they did not satisfy the general condition for entitlement to availability pay, which was to remain available for assignment to another post. If a civil servant is much older than 60, it is said to be very unlikely that he will be willing to take up a new post, combined with the necessary adjustments. On the contrary, it is normal that such civil servants retire.

52.The Danish Government stressed the importance of the – legitimate – need of the State to restructure the administration and to make it more efficient. The legitimate expectation of the administration that a civil servant will remain available for assignment to a new post is often no longer the case for a civil servant who is already eligible for a pension. Moreover, the Government emphasised the requirement to protect civil servants which is served by availability pay. However, that requirement to protect is not at issue if the civil servant is otherwise safeguarded by his pension.

53.With availability pay in itself, the Danish legislature is, without a doubt, pursuing a social policy objective: to protect the independence of civil servants from political and personal pressure by the socially responsible organisation of redundancies and restructuring in the civil service.

54.However, the Commission takes the view that, in the context of a test of justification, the decisive factor is not the general aim pursued by availability pay – flexibility of the administration and protection for civil servants. Rather it is the aim pursued by the restriction. The aim pursued by the restriction is to exclude, as a general rule, those civil servants who are not available for assignment to a new post from receiving availability pay. This aim concerns solely the internal interests of the employer and therefore cannot be classified as a social policy objective in the general interest in accordance with Article 6(1).

55.However, this aspect concerns the appropriateness and/or the necessity of the measure, (27) which will be assessed below.

b) No manifestly unsuitable measure

56.The Court has recognised that the Member States enjoy a broad discretion in their choice of the measures capable of attaining their objectives in the field of social and employment policy. (28) This means that it is sufficient if the measures adopted are not manifestly unsuitable for achieving the aim pursued. (29)

57.A provision such as Paragraph 32 of the Tjenestemandslov ensures that only civil servants not yet eligible for a pension are entitled to receive availability pay. The persons entitled to it, therefore, are solely those of whom it can be assumed with a high degree of probability that they will actually remain available for assignment to a new post. The aim of the measure is to simplify the restructuring of the administration whilst preserving the independence of civil servants and taking account of the specific need to protect the individual civil servant concerned. The measure at issue here is not manifestly unsuitable for achieving that aim.

c) Necessity

58.A measure is ‘necessary’ where the legitimate aim pursued cannot be achieved by an equally suitable but more benign means.

59.Paragraph 32 of the Tjenestemandslov excludes across the board civil servants who are entitled to receive a pension from entitlement to availability pay. It does not take account of whether they actually wish to retire or on the contrary are available for assignment to a new post. At the age of 65, civil servants are only entitled to retire. They are, however, not obliged to do so. The compulsory retirement age of 70 applied until 2008. Since then, according to the referring court, even that age limit has been abolished.

60.Without a doubt, a case-by-case assessment of the availability of pensionable civil servants would be a more benign means.

61.As has already been mentioned, however, the Member States enjoy a broad discretion in their choice of the measures capable of attaining their objectives in the field of social and employment policy. (30)

62.The Danish legislature justified the age limit by the fact that it could often be assumed that civil servants who were entitled to retire were not suitable, or would not be suitable, to take up another post. Behind the across the board exclusion of such persons from availability pay there could also be considerations of administrative simplification, namely avoiding specific assessments of whether a civil servant remains available for assignment to a new post.

63.The discretion to which Member States are entitled in principle also allows them the option, for reasons of administrative simplicity, of refraining from examining a given individual case; the legislature can, within the framework of proportionality, classify on the basis of general criteria. (31)

64.Admittedly, with regard to civil servants under the age of 65, the Danish Government provides for a specific case-by-case assessment as to whether the civil servant is available for assignment to other posts. In this regard it would be the task of the referring court to examine exactly how those case-by-case assessments for younger civil servants work and why a case-by-case assessment of that kind for civil servants over the age of 65 would lead to unacceptable administrative costs.

However, even considering the legitimate interest of the administration to avoid excessive expenditure, there would have been less restrictive means. A more benign means which would also spare the employer from excessive administrative costs would in this connection be to impose on civil servants the burden of demonstrating and proving their availability.

66.

In any event, the discretion of the Member States cannot have the effect of frustrating the implementation of the principle of non‑discrimination on grounds of age. (32) Such frustration arises in the present case, however. A provision such as Paragraph 32 of the Tjenestemandslov, which automatically exempts an employer from the duty to pay an availability salary as soon as the civil servant has reached the age of 65 and is therefore entitled to receive a retirement pension, creates the risk that the employer will prefer to make redundant those civil servants who have reached pensionable age. For the employer it is more attractive financially to dismiss persons who have reached pensionable age, thus persons of a certain age.

67.

Consequently, a provision such as Paragraph 32 of the Tjenestemandslov goes beyond what would be necessary to ensure that availability pay is given to only those civil servants who remain available for assignment to a new post.

d) No undue prejudice

68.

Should the measure not already be precluded on the basis of its necessity, it would have to be examined whether it is not disproportionate in the narrower sense because it leads to undue prejudice to the interests of civil servants. (33)

69.

The Danish Government points out in that respect that civil servants over the age of 65 require less protection than younger civil servants because they are entitled to the payment of a pension.

70.

It can be in the interests of a civil servant to continue working although he is already entitled to a pension. Reasons for this could firstly be financial considerations (the civil servant does not yet wish to accept the loss of income which is associated with retirement) or personal considerations. In 2008 the Danish legislature itself abolished the age limit of 70 at which a civil servant had to retire.

71.

Finally, the right to engage in work is also recognised in Article 15(1) of the Charter of Fundamental Rights.

72.

At the least, Paragraph 32 of the Tjenestemandslov makes it more difficult for those civil servants who could already receive a pension to continue to work. (34) It is not clear from the order for reference whether the age limit also means that a civil servant not only has no entitlement to availability pay but also may not continue to be employed in another post in the civil service.

73.

The Court has held that compulsory retirement once a certain age has been reached can be justified. (35) The refusal of financial cushioning to someone looking for a new post, as a comparatively less drastic measure, could also therefore be justified.

74.

At the same time, however, the Court points out that the principle of proportionality requires an objective to be pursued in a consistent and systematic manner. In the present case, however, it does not seem to be consistent if the Danish legislature, on the one hand, abolishes the absolute age limit for entry into retirement which was set at the age of 70, but, on the other hand, in the event of redundancies, effectively introduces an entry limit of 65 years of age. Indeed, by abolishing an absolute age limit for retirement, the legislature is revealing that it does not see the reaching of a certain age to be an appropriate starting point for whether retirement should be taken.

75.

In my Opinion in Andersen, (36) the subject-matter of which was a comparable provision (age limit for the payment of a severance allowance), I took account of whether, in accordance with the provision under investigation in that case, workers had to accept early retirement reductions and other cuts in income by comparison with the maximum amount of pension which they would otherwise have been able to draw.

76.

At first glance this does not seem to be the case in the provision at issue here. In accordance with the Tjenestemandspensonslov, civil servants acquire a pension entitlement which is dependent upon their period of service as a civil servant. During the period in which the civil servant would have received availability pay, though due to his age that does not in fact apply, further pensionable service years are also earned. During the three years in which there would have been a theoretical entitlement to availability pay, there is therefore no loss of pensionable service.

77.

If, however, the civil servant had actually been paid availability pay during that three-year period and had also been offered a new post, he would have been able to accrue even longer pensionable service (formerly up until the age of 70 and, after abolition of that age limit for retirement, beyond that age).

The significant prejudice can also, however, be constituted by the fact that the difference between the pension entitlement and availability pay, which would otherwise be paid for three years, is considerable. In particular, where the difference between the pension entitlement and the availability pay amounts to a considerable sum, it can be assumed that it leads to a significant prejudice for a civil servant who has not yet prepared himself for retirement in his personal financial planning. It is for the referring court to resolve this matter definitively.

79.

A provision such as that contained in Paragraph 32 of the Tjenestemandslov is not necessary to achieve the aim pursued by it. Accordingly, the direct difference in treatment on grounds of age which it entails cannot be justified under Article 6(1) of Directive 2000/78.

V – Conclusion

80.

I therefore propose that the Court answer the questions referred as follows:

Article 6(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation applies only with regard to occupational social security schemes which relate to retirement or invalidity benefits.

If civil servants are paid availability pay for three years in the event of their dismissal on grounds of redundancy, as long as they remain available for assignment to a new post, it is incompatible with Articles 2 and 6 of Directive 2000/78 to refuse that availability pay to civil servants who are entitled to receive a pension when they leave the service without taking account of whether the individual civil servant actually wishes to receive that pension or remains available for assignment to a new post.

—

(1) Original language: German.

(2) OJ 2000 L 303, p. 16.

(3) Another aspect of Article 6(2) of Directive 2000/78 forms the subject-matter of Case C‑476/11 Kristensen; see in that regard my Opinion in that case delivered today.

(4) Forskelsbehandlingslov (Law on equal treatment), Law No 459 of 12 June 1996 on the prohibition of discrimination in the labour market, etc. Law No 1417 of 22 December 2004 amended the criteria of age and disability in the Law on the prohibition of discrimination in the labour market, etc. The amending law entered into force on 28 December 2004.

(5) Emphasis added.

(6) See Consolidated Law No 531 of 11 June 2004.

(7) Law on Pensions for Civil Servants in the version applicable to the present case, Law No 230 of 19 March 2004.

(8) Danish Union of jurists and economists (‘DJØF’).

(9) Ministry of the Interior and Social Affairs, now Indenrigs- og Sundhedsminsteriet (Ministry of the Interior and Health).

(10) Eastern Regional Court.

(11) Association of Danish Municipalities, which was given leave to intervene in the main proceedings (‘KL’).

(12) See Case C-267/06 Maruko [2008] ECR I-1757, paragraph 41; Case C-147/08 Römer [2011] ECR I-3591, paragraph 32; and Joined Cases C‑124/11, C‑125/11 and C‑143/11 Dittrich [2012] ECR, paragraph 31.

(13) See Case C-360/90 Bötel [1992] ECR I-3589, paragraph 12; Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, paragraph 29; and Dittrich (cited in footnote 12, paragraph 35).

(14) See, to this effect, Maruko (cited in footnote 12, paragraph 48).

(15) Emphasis added.

(16) In the Danish language version the term ‘entitlement’ to benefits is also missing.

(17) Case C-449/93 Rockfon [1995] ECR I-4291, paragraph 28; Case C-296/95 EMU Tabac and Others [1998] ECR I-1605, paragraph 36; and Case C-280/04 Jyske Finans [2005] ECR I-10683, paragraph 31.

(18) Case C-149/97 Institute of the Motor Industry [1998] ECR I-7053, paragraph 16.

(19) Case C-437/97 EKW and Wein & Co [2000] ECR I-1157, paragraph 42, and Case C-1/02 Borgmann [2004] ECR I-3219, paragraph 25.

(20) ‘… les États membres peuvent prévoir que ne constitue pas une discrimination fondée sur l'âge la fixation, pour les régimes professionnels de sécurité sociale, d'âges d'adhésion ou d'admissibilité aux prestations de retraite ou d'invalidité …’.

(21) Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (OJ 2006 L 204, p. 23).

(22) Case C-555/07 Kücükdeveci [2010] ECR I-365, paragraph 21.

(23) Case C-341/08 Petersen [2010] ECR I-47, paragraph 60.

(24) See in that regard my Opinion in Case C-499/08 Andersen [2010] ECR I-9343, points 42 to 47.

(25) Case C-388/07 Age Concern England [2009] ECR I-1569, paragraph 46; Case C-88/08 Hütter [2009] ECR I-5325, paragraph 41 and Case C-447/09 Prigge and Others [2011] ECR I-8003, paragraph 80. In Prigge the Court held that an aim such as air traffic safety does not fall within the aims referred to in the first paragraph of Article 6(1) of Directive 2000/78 (paragraph 81).

(26) Case C-411/05 Palacios de la Villa [2007] ECR I-8531, paragraphs 56 and 57; Case C‑388/07 Age Concern England cited in footnote 25, paragraphs 44 and 45 and Case C‑341/08 Petersen cited in footnote 23, paragraphs 39 and 40.

(27) Thus also my Opinion in Andersen (cited in footnote 24, points 51 and 52) and the judgment of 12 October 2010 in that case, paragraph 29.

(28) Case C‑411/05 Palacios de la Villa (cited in Footnote 26, paragraph 68); Case C-45/09 Rosenbladt [2010] ECR I-9391, paragraph 41 and Case C‑555/07 Kücükdeveci cited in footnote 22, paragraph 38.

(29) See in that regard my Opinion in Andersen (cited in footnote 24, point 54).

(30) See point 56 of this Opinion.

(31) See my Opinion in Andersen (cited in footnote 24, point 62) and my Opinion of 1 April 2004 in Case C-19/02 Hlozek [2004] ECR I-11491, points 57 and 58.

(32) Age Concern England (cited in footnote 25, paragraph 51) and Andersen (cited in footnote 27, paragraph 33).

(33) Judgment and Opinion in Andersen.

(34)

See to that effect the judgment in Andersen (cited in footnote 27, paragraph 45).

(35) Palacios de la Villa (cited in footnote 26).

(36) Opinion in Andersen (cited in footnote 24, point 73). See also the judgment in Andersen (cited in footnote 27, paragraph 46).