26 September 2013 (*1)

‘Principle of non-discrimination on grounds of age — Charter of Fundamental Rights of the European Union — Article 21(1) — Directive 2000/78/EC — Article 6(1) and (2) — Occupational pension scheme — Increases in the amount of contributions on the basis of age’

In Case C‑476/11,

REQUEST for a preliminary ruling under Article 267 TFEU from the Vestre Landsret (Denmark), made by decision of 14 September 2011, received at the Court on 19 September 2011, in the proceedings

HK Danmark, acting on behalf of Glennie Kristensen,

Experian A/S,

intervener:

Beskæftigelsesministeriet,

composed of R. Silva de Lapuerta, President of the Chamber, G. Arestis, J.‑C. Bonichot, A. Arabadjiev (Rapporteur) and J.L. da Cruz Vilaça, Judges,

Advocate General: J. Kokott,

Registrar: A. Impellizzeri, Administrator,

having regard to the written procedure and further to the hearing on 15 November 2012,

after considering the observations submitted on behalf of:

—HK Danmark, acting on behalf of Ms Kristensen, by T. Sejr Gad, advokat,

—Experian A/S, by T. Brøgger Sørensen, advokat,

—the Beskæftigelsesministeriet, by P. Biering, advokat,

—the Danish Government, by C. Vang, acting as Agent, and by P. Biering, advokat,

—the Belgian Government, by M. Jacobs and L. Van den Broeck, acting as Agents,

—the German Government, by T. Henze and J. Möller, acting as Agents,

—the Spanish Government, by S. Centeno Huerta and S. Martínez‑Lage Sobredo, acting as Agents,

—the Netherlands Government, by C. Wissels and C. Schillemans, acting as Agents,

—the European Commission, by J. Enegren and C. Barslev, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 7 February 2013,

gives the following

1This request for a preliminary ruling concerns the interpretation of Article 6(2) 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).

2The request has been made in proceedings between HK Danmark (‘HK’), acting on behalf of Ms Kristensen, and Experian A/S (‘Experian’) concerning the lawfulness of the occupational pension scheme operated by Experian.

Legal context

European Union legislation

Recitals 1, 4, 13 and 25 in the preamble to Directive 2000/78 are worded as follows:

(1)In accordance with Article 6 of the Treaty on European Union, the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to all Member States and it respects fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms [,signed at Rome on 4 November 1950,] and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

…

(4)The right of all persons to equality before the law and protection against discrimination constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of All Forms of Discrimination against Women, United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories. Convention No 111 of the International Labour Organisation (ILO) prohibits discrimination in the field of employment and occupation.

…

(13)This Directive does not apply to social security and social protection schemes whose benefits are not treated as income within the meaning given to that term for the purpose of applying Article [157 TFEU], nor to any kind of payment by the State aimed at providing access to employment or maintaining employment.

…

(25)The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.’

4Under Article 1 of Directive 2000/78, ‘[t]he purpose of [the 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.’

Article 2(1) and (2)(a) of that directive provide:

(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’

Article 3 of the directive, entitled ‘Scope’, states in paragraph (1):

…

employment and working conditions, including dismissals and pay;

…

Under Article 6 of the directive, entitled ‘Justification of differences of treatment on grounds of age’:

‘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;

…

8The Kingdom of Denmark made use of the possibility, under the second subparagraph of Article 18 of Directive 2000/78, to extend the period for transposing the directive so far as concerns the criteria relating to age and disability. The period therefore expired on 2 December 2006.

Danish law

9Directive 2000/78 was transposed into Danish law by Law No 1417, amending the Law on the principle of non-discrimination on the labour market (lov nr. 1417 om ændring af lov om forbud mod forskelsbehandling på arbejdsmarkedet m.v.), of 22 December 2004 (‘the Anti-Discrimination Law’).

Article 6a of that law is intended to implement Article 6(2) of Directive 2000/78. It is worded as follows:

‘Notwithstanding Articles 2 to 5, the present law does not preclude the fixing of ages for admission to occupational social security schemes or the use, in the context of such schemes, of age criteria in actuarial calculations. The use of age criteria must not result in discrimination on the grounds of sex’.

The dispute in the main proceedings and the questions referred for a preliminary ruling

Ms Kristensen was recruited into Experian’s after-sales service on 19 November 2007, at the age of 29. Clause 5.1 of her employment contract included the following stipulations as regards pensions:

5.1[Ms Kristensen shall] from 19 August 2008 be part of [Experian’s] compulsory pension scheme managed by Scandia. [Experian] shall pay two thirds of the premium, while [Ms Kristensen shall herself contribute] one third of the premium.

So far as concerns [Experian’s] pension scheme, [Ms Kristensen shall conclude] a separate contract with Scandia (through Willis), which manages the pension scheme. Old-age insurance and sickness insurance shall be provided at the same time as the contract of employment.

Applicable rates:

Under 35 years of age: employee contribution 3% and [Experian] contribution 6%;

From 35 to 44 years of age: employee contribution 4% and [Experian] contribution 8%;

Over 45 years of age: employee contribution 5% and [Experian] contribution 10%.

11Ms Kristensen resigned with effect from 31 October 2008. HK, acting on her behalf, claimed from Experian, pursuant to the Anti-Discrimination Law, the payment of an amount corresponding to nine months’ salary by way of compensation, as well as back payment of pension contributions at the rate applicable to employees of over 45 years of age, on the ground that the pension scheme set up by Experian constituted unlawful discrimination on grounds of age. Experian rejected those claims on the ground that pension schemes, generally, are not covered by the prohibition of discrimination on the grounds, in particular, of age, laid down by the Anti-Discrimination Law.

In those circumstances the Vestre Landsret (Western Regional Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

(1)Must the exception in Article 6(2) of [Directive 2000/78] concerning the determination of age limits for admission or entitlement to retirement or invalidity benefits be interpreted as allowing Member States generally to except occupational social security schemes from the prohibition in Article 2 of [that] directive of direct or indirect discrimination on grounds of age in so far as that does not bring about discrimination on grounds of sex?

(2)Must the exception in Article 6(2) of [Directive 2000/78] concerning the determination of age limits for admission or entitlement to retirement or invalidity benefits be interpreted as not precluding a Member State from maintaining a legal situation in which an employer can pay, as part of pay, pension contributions which increase with age, with the result, for example, that the employer pays a pension contribution of 6% for employees under 35, 8% for employees from 35 to 44 and 10% for employees over 45, in so far as that does not bring about discrimination on grounds of sex?

Consideration of the questions referred

The second question

Preliminary observations

16By its second question, which it is appropriate to consider first, the referring court asks, in essence, whether an occupational pension scheme under which an employer pays, as an element of pay, pension contributions which increase with age falls within the scope of Article 6(2) of Directive 2000/78.

17The first point to be noted here is that the dispute in the main proceedings is between two private parties concerning alleged discrimination on grounds of age, arising not from a statutory requirement or from a collective agreement, but solely from the contract of employment concluded between Ms Kristensen and Experian. It is within the context of that dispute that HK, acting on behalf of Ms Kristensen, invokes the provisions of Directive 2000/78.

18The Court has consistently held that a directive, since it is technically directed at Member States, cannot of itself impose obligations on an individual and cannot, therefore, be relied on as such against an individual (see, inter alia, Case Marshall [1986] ECR 723, paragraph 48; Case Faccini Dori [1994] ECR I-3325, paragraph 20; and Case Kücükdeveci [2010] ECR I-365, paragraph 46).

19However, it must also be recalled that the Court has acknowledged the existence of a principle of non-discrimination on grounds of age which must be regarded as a general principle of European Union law and to which specific expression is given by Directive 2000/78 in the field of employment and occupation (see, to that effect, Kücükdeveci, paragraph 21). The prohibition of any discrimination on grounds, inter alia, of age is set out in Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which, from 1 December 2009, has the same legal status as the Treaties.

20For the principle of non-discrimination on grounds of age to apply in a situation such as that at issue in the case in the main proceedings, that situation must fall within the scope of European Union law (Kücükdeveci, paragraph 23).

That is so in the present case. First, Article 6a of the Anti-Discrimination Law is intended to implement Article 6(2) of Directive 2000/78. It was in that context and, in any event, after the date of expiry of the period prescribed for the Member State concerned for transposing Directive 2000/78, which, so far as concerns the Kingdom of Denmark, ended on 2 December 2006, that the allegedly discriminatory conduct adopted in the present case occurred.

22Secondly, the occupational pension scheme at issue in the main proceedings, which is alleged to be discriminatory in nature, falls within the scope of Directive 2000/78.

23As is apparent both from its title and preamble and its content and purpose, Directive 2000/78 is intended to lay down a general framework with a view to ensuring equal treatment ‘in employment and occupation’ for all persons, by providing them with effective protection against discrimination on any of the grounds referred to in Article 1 of the directive, including age.

24In particular, it is apparent from Article 3(1)(c) of Directive 2000/78 that the directive is to apply, within the limits 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, inter alia, ‘employment and working conditions, including dismissals and pay’.

25In that context, the scope of Directive 2000/78 must be understood, in the light of Article 3(1)(c) and (3) of the directive read in conjunction with recital 13 in the preamble to the directive, as excluding social security or social protection schemes, the benefits of which are not equivalent to ‘pay’ within the meaning given to that term for the application of Article 157(2) TFEU, and payments of any kind made by the State with the aim of providing access to employment or maintaining employment (Case C-267/06 Maruko [2008] ECR I-1757, paragraph 41, and Case C-147/08 Römer [2011] ECR I-3591, paragraph 32).

26The concept of pay, within the meaning of Article 157(2) TFEU comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer (see, in particular, Case C-262/88 Barber [1990] ECR I-1889, paragraph 12).

27In the case in the main proceedings, the issue is the employer’s contributions paid by Experian in respect of its employees during a period of employment with that undertaking, and not the retirement benefits payable following their retirement.

28Furthermore, the employer’s commitment to pay those contributions stems solely from the contract of employment concluded between that company and its employees and is not imposed on it by law. The funding of the occupational pension scheme at issue in the main proceedings is provided both by the employer, in the amount of two thirds of the contributions, and by the employee, in the amount of the remaining third, without the State contributing to it. Therefore, the scheme forms part of the consideration that the employer offers its employees.

29It is admittedly true that the contributions are not paid directly to the employee himself, but into his personal retirement savings account. None the less, as Experian stated in response to a question put by the Court, each employee has access to his own retirement savings account and decides, with a specialised pensions adviser, how the amount saved should be invested with a view to drawing a pension in due course.

30Accordingly, the employer’s contributions paid under the scheme at issue in the main proceedings are an immediate cash benefit, paid by the employer to the worker in respect of the worker’s employment, and, therefore, constitute ‘pay’ within the meaning of Article 157(2) TFEU. Consequently, they fall within the scope of Directive 2000/78.

31It follows from all of the foregoing that it is on the basis of the principle of non-discrimination on grounds of age, enshrined in Article 21 of the Charter and given specific expression by Directive 2000/78, that the question whether European Union law precludes an occupational pension scheme such as that at issue in the main proceedings must be examined.

32Consequently, the second question must be understood as concerning, in essence, whether the principle of non-discrimination on grounds of age, enshrined in Article 21 of the Charter and given specific expression by Directive 2000/78, and, in particular, Articles 2 and 6(2) of that directive, must be interpreted as precluding an occupational pension scheme under which an employer pays, as an element of pay, pension contributions which increase with age.

33In order to reply to that question, it is necessary, first of all, to ascertain whether the occupational pension scheme at issue in the main proceedings establishes a difference in treatment on grounds of age.

The existence of a difference in treatment on grounds of age

34Under Article 2(1) of Directive 2000/78, the ‘principle of equal treatment’ is to be understood as meaning that there is to be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 of that directive, which include age. Article 2(2)(a) of the directive states that, for the purposes of applying Article 2(1), direct discrimination 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 any of the grounds referred to in Article 1 of the directive.

35In this case, Ms Kristensen being under 35 years of age on the date of her recruitment, the employer’s contribution paid by Experian into the pension scheme in respect of Ms Kristensen amounted to 6% of her basic salary. Her overall monthly pay, made up of the basic salary plus the employer’s contributions, was thus lower than the overall monthly pay of an employee on the same basic salary, but over 35 years of age. For Experian employees between 35 and 45 years of age, the employer’s contributions amount to 8% of basic salary while for employees over 45 years of age, they amount to 10% of that salary. The fact that the overall monthly pay of younger workers is lower and, accordingly, the fact that the treatment they are afforded is less favourable, are, therefore, directly linked to age.

36It follows that the occupational pension scheme at issue in the main proceedings establishes a difference in treatment based on the criterion of age.

37Secondly, it is necessary to consider whether that difference in treatment is capable of constituting discrimination prohibited by the principle of non-discrimination on grounds of age, enshrined in Article 21 of the Charter and given specific expression by Directive 2000/78.

38Article 6(2) of Directive 2000/78, to which the referring court alludes in its second question, states that Member States may provide, in certain circumstances, that a difference in treatment does not constitute discrimination on the grounds of age.

39It is necessary, therefore, to consider whether the difference in treatment established in paragraph 36 of this judgment can be justified under Article 6(2) of Directive 2000/78.

The justification, under Article 6(2) of Directive 2000/78, of the difference in treatment on grounds of age

Under Article 6(2) of Directive 2000/78, in the French-language version, Member States may provide, notwithstanding Article 2(2) of Directive 2000/78, that ‘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, y compris la fixation, pour ces régimes, d’âges différents pour des travailleurs ou des groupes ou catégories de travailleurs et l’utilisation, dans le cadre de ces régimes, de critères d’âge dans les calculs actuariels, à condition que cela ne se traduise pas par des discriminations fondées sur le sexe’ [‘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’].

41The Danish-language version of Article 6(2) of that directive differs from the text set out in the preceding paragraph of this judgment in that it makes no reference, in particular, to ‘prestations de retraite ou d’invalidité’ [‘retirement or invalidity benefits’].

42In this connection, it should be recalled that, according to settled case-law, provisions of European Union law must be interpreted and applied uniformly in the light of the versions existing in all the languages of the European Union. Where there is divergence between the various language versions of a provision of European Union law, the provision in question must be interpreted by reference to the general scheme and purpose of the rules of which it forms part (see, inter alia, Case C-280/04 Jyske Finans [2005] ECR I-10683, paragraph 31, and the case-law cited).

43So far as concerns the versions of Article 6(2) of Directive 2000/78 in the other European Union languages, it is clear that they refer expressly, like the French‑language version reproduced in paragraph 40 of this judgment, to the fixing, for occupational social security schemes, of ages for admission or entitlement to retirement or invalidity benefits. For example, the Spanish-language version of the provision refers to ‘la determinación, para los regímenes profesionales de seguridad social, de edades para poder beneficiarse de prestaciones de jubilación o invalidez u optar a las mismas’, the German‑language version of that provision uses the words ‘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’, the English-language version of the provision in question refers to ‘the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits’, while the Polish‑language version of the same provision uses the words ‘ustalanie, dla systemów zabezpieczenia społecznego pracowników, wieku przyznania lub nabycia praw do świadczeń emerytalnych lub inwalidzkich’.

44The wording of Article 6(2) of Directive 2000/78, in the versions cited in the preceding paragraph of this judgment, suggests, furthermore, that that provision applies only to the cases that are exhaustively listed therein. Thus, if the European Union legislature had intended to extend the scope of that provision beyond the cases expressly referred to therein, it would have said so expressly, by using, for example, the adverbial phrase ‘inter alia’.

45The general scheme and purpose of Directive 2000/78 support that conclusion. That directive gives specific expression, in the field of employment and occupation, to the principle of non-discrimination on grounds of age, which is regarded as being a general principle of European Union law (see, to that effect, Kücükdeveci, paragraph 21). The prohibition of any discrimination on grounds, inter alia, of age is, moreover, set out in Article 21 of the Charter, which, from 1 December 2009, has the same legal status as the Treaties.

46Since Article 6(2) of Directive 2000/78 allows Member States to provide for an exception to the principle of non-discrimination on grounds of age, that provision must be interpreted restrictively (see Case C‑546/11 Dansk Jurist- og Økonomforbund [2013] ECR, paragraph 41).

47An interpretation of Article 6(2) of Directive 2000/78 to the effect that that provision applies to any type of occupational social security scheme would have the effect of extending its scope, contrary to the restrictive nature of the interpretation to which that provision must be subject (Dansk Jurist- og Økonomforbund, paragraph 42).

48It follows that Article 6(2) of Directive 2000/78 applies only to occupational social security schemes that cover the risks of old age and invalidity (Dansk Jurist- og Økonomforbund, paragraph 43).

49In this case, even if the age-related increases in the pension contributions are part of an occupational social security scheme that covers the risk of old age, those increases would also have to fall within the cases referred to in Article 6(2) of Directive 2000/78, namely, the ‘fixing … of ages for admission or entitlement to retirement or invalidity benefits’, including the ‘use … of age criteria in actuarial calculations’.

50In this connection, it must be pointed out that the occupational pension scheme at issue in the main proceedings does not set any age for admission to retirement benefits, given that Experian’s employees automatically join the scheme after nine months’ service in the undertaking. Accordingly, the increases in the pension contributions at issue in the main proceedings do not involve, as such, a ‘fixing … of ages for admission or entitlement to retirement … benefits’, as referred to in Article 6(2) of Directive 2000/78.

51The Danish, Belgian and German governments, and the European Commission, submit, however, that that provision must be interpreted as applying not only to the fixing of ages for admission and entitlement to retirement benefits, but also, a fortiori, to less severe forms of discrimination based on age, such as that at issue in the main proceedings.

52That argument cannot be accepted. First, the pension contributions at issue in the main proceedings form part, as has been established in paragraph 30 of this judgment, of Experian employees’ pay. Accordingly, the age-related increases in those contributions are liable to produce effects going beyond the mere fixing of ages for admission or entitlement to retirement benefits. Secondly, as has been pointed out in paragraph 46 of this judgment, Article 6(2) of Directive 2000/78 must be interpreted strictly. Consequently, not all aspects of an occupational social security scheme covering the risks of old age and invalidity, such as, inter alia, the setting of the amount of contributions to the scheme, fall within the scope of that provision, but only those that are expressly referred to therein.

53For the same reason, the setting of the amount of contributions cannot be assimilated to a ‘use of age criteria in actuarial calculations’, as referred to in Article 6(2) of Directive 2000/78, since, in any event, it does not take the form of fixing ages for admission or entitlement to retirement benefits.

54It follows that the age-related increases in the pension contributions do not fall within the scope of Article 6(2) of Directive 2000/78.

The justification, under Article 6(1) of Directive 2000/78, of the difference in treatment on grounds of age

55Given that the age-related increases in the employer’s contributions constitute a difference in treatment on grounds of age that does not fall within the scope of Article 6(2) of Directive 2000/78, as has been established in paragraph 54 of this judgment, it is appropriate to consider whether that measure is capable of being justified under Article 6(1) of that directive.

56Even though the referring court has limited its questions to the interpretation of Article 6(2) of Directive 2000/78, that does not prevent the Court from providing the national court with all the elements of interpretation of European Union law which may be of assistance in adjudicating on the case before it, whether or not that court has specifically made reference to them in its question (see, to that effect, Case C-503/09 Stewart [2011] ECR I-6497, paragraph 79, and the case-law cited).

57Under the first subparagraph of Article 6(1) of Directive 2000/78, a difference in treatment on grounds of age does not constitute discrimination if, within the context of national law, it is 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.

58So far as concerns, in the first place, the question whether the occupational scheme at issue in the main proceedings reflects a legitimate aim, Experian and the Danish government contend that it is intended (1) to enable, first, older workers, who enter the service of Experian at a later stage in their working life, to build up reasonable retirement savings over a relatively short contribution period. Secondly, it is intended to include young workers in the same occupational pension scheme at an early stage, while making it possible for them to have at their disposal a larger proportion of their wages, account being taken of the lower rate of employee contribution that is applied to them. The scheme thus provides a means for all of Experian’s employees to build up reasonable retirement savings, which they will have at their disposal when they retire.