—

O, by himself,

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the French Government, by D. Colas and R. Coesme, acting as Agents,

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the European Commission, by D. Martin, acting as Agent,

1

This request for a preliminary ruling concerns the interpretation of the principle of non-discrimination on grounds of age.

2

The request has been made in proceedings between O and Bio Philippe Auguste SARL concerning the latter’s refusal to grant the applicant, on the expiry of his fixed-term employment contract, an end-of-contract payment.

3

Pursuant to Article 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), the purpose of that 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 states as follows:

‘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:

...’

5

Article L. 1243-8 of the Code du Travail (Labour Code) provides as follows:

‘Where, on the expiry of an employment contract for a fixed term, the contractual relationship does not continue in the form of a contract for an indefinite period, the employee shall be entitled, in addition to his salary, to an end-of-contract payment intended to compensate for the insecurity of his situation.

That payment shall be equal to 10% of the total gross remuneration paid to the employee.

It shall be added to the total gross remuneration payable to the employee. It shall be paid on the expiry of the contract at the same time as the final salary payment and recorded on the relevant salary slip.’

6

Article L. 1243-10 of the Code du Travail provides as follows:

‘The end-of-contract payment shall not be payable:

7

Pursuant to Article L. 381-4 of the Code de la Sécurité Sociale (Social Security Code):

‘Pupils and students at higher education institutions, institutes of technology and grandes écoles and in the secondary school classes préparatoires for the grandes écoles who are not covered for social security purposes under any scheme other than that provided for in Article L. 380-1 or covered for social security purposes as dependants, and who are within the prescribed age-limit, shall compulsorily be affiliated to the national social security scheme. That age-limit may be lowered, in particular for the purposes of conscription for military service and the retaining of personnel in military service.’

8

Article R. 381-5 of the Code de la Sécurité Sociale states that ‘the age-limit provided for in Article L. 381-4 shall be set at 28 years of age’.

9

On 21 December 2010, the applicant in the main proceedings, while he was a student, was recruited by Bio Philippe Auguste SARL under a fixed-term employment contract for the period from 21 December 2010 to 24 December 2010, during his university vacation. On the expiry of his contract, pursuant to subparagraph 2° of Article L. 1243-10, he was not paid the end-of-contract payment.

10

The applicant considered that that provision was contrary to the provisions of the Constitution guaranteeing the principle of equal treatment and the principle of non-discrimination on grounds of age and brought an action before the Conseil de Prud’hommes de Paris (Labour Tribunal, Paris) seeking the sum of EUR 23.21 in respect of the end-of-contract payment, the re-classification of his fixed-term contract as a contract for an indefinite period and the sum of EUR 4500 in respect of compensation for dismissal without real and substantial cause.

11

On 1 March 2012, the applicant in the main proceedings lodged a preliminary objection that the national provision was unconstitutional. By judgment of 10 January 2014, the Conseil de Prud’hommes de Paris sent that question to the Cour de Cassation (Court of Cassation). By judgment of 9 April 2014, the Cour de Cassation referred that objection to the Conseil Constitutionnel (French Constitutional Council).

12

By Decision No 2014-401 QPC of 13 June 2014, the Conseil Constitutionnel, after observing that ‘the challenged provisions apply solely to pupils or students who fall within the age-limit provided for by Article L. 381-4 of the Code de la Sécurité Sociale to be compulsorily affiliated to the national social security scheme by virtue of their enrolment at a school or university’, went on to hold, first, that ‘the complaint alleging that the legislature, in adopting the challenged provisions, did not define the concept of “a young person” [had] no factual basis’ and, secondly, that ‘the principle of equal treatment is not a bar to making the application of legislative provisions concerning pupils or students subject to an age-limit’.

13

Furthermore, after pointing out that ‘the end-of-contract payment is paid to an employee with a fixed-term contract in order to “compensate for the insecurity of his situation” where, on the expiry of his contract, the contractual relationship does not continue in the form of a contract for an indefinite period’, the Conseil Constitutionnel concluded that ‘students employed under a fixed-term employment contract for a period during their school holidays or university vacations are not in the same situation as either students who work at the same time as pursuing their studies or other employees on fixed-term employment contracts’ and that, consequently, ‘by excluding the grant of that payment where the contract is concluded with a pupil or student employed during his school holidays or university vacation and who intends, at the end of those holidays or that vacation, to return to his schooling or studies, the legislature established a difference in treatment based on a difference in situation directly in line with the purpose of the law’.

14

In those circumstances, the Conseil de Prud’hommes de Paris decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Does the general principle of non-discrimination on grounds of age preclude national legislation (Article L. 1243-10 of the French Code du Travail) which excludes young persons who work during their school holidays or university vacations from entitlement to an insecurity payment payable in the event that employment under a fixed-term contract is not followed by an offer of permanent employment?’

15

At the hearing, the applicant in the main proceedings expressly admitted that he was related to the managers of the defendant in that case and that the dispute in the main proceedings had been provoked solely and exclusively in order to challenge the provisions at issue. The fact that the defendant in that case had not submitted observations at any stage of the proceedings was explained, in his view, by the small sum at stake.

16

It is likely, in such a context, that the dispute before the referring court is fictitious, and its real purpose is not to obtain the end-of-contract payment but to simply to challenge those provisions.

17

It is for the referring court, which is the sole court to have direct knowledge of the facts in the main proceedings and which is therefore best placed to make the necessary determinations, to examine whether that is the case and, if so, to draw any inferences provided for under national law for the purposes of the decision it is called upon to deliver.

18

In any event, according to consistent case-law of the Court, where questions submitted by national courts concern the interpretation of a provision of EU law, the Court is bound, in principle, to give a ruling unless it is obvious that the request for a preliminary ruling is in reality designed to induce the Court to give a ruling by means of a fictitious dispute, or to deliver advisory opinions on general or hypothetical questions, or that the interpretation of EU law requested bears no relation to the actual facts of the main action or its purpose, or that 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 in DR and TV2 Danmark, C‑510/10, EU:C:2012:244, paragraph 22 and the case-law cited therein).

19

That being the case, it is not inconceivable that the interpretation of EU law sought by the referring court does actually respond to an objective need inherent in the outcome of a case pending before it. In fact, it is common ground that the employment contract between the parties to the main proceedings has actually been performed and that its application raises a question of interpretation of EU law (see, to that effect, judgment in Mangold, C‑144/04, EU:C:2005:709, paragraph 38).

20

The request for a preliminary ruling is therefore admissible.

21

By its question, the referring court asks, in essence, whether EU law, specifically the principle of non-discrimination on grounds of age enshrined in Article 21 of the Charter of Fundamental Rights of the European Union and given specific expression by Directive 2000/78, must be interpreted as precluding a national provision such as that at issue in the main proceedings, under which an end-of-contract payment, paid in addition to an employee’s salary on the expiry of a fixed-term employment contract where the contractual relationship is not continued in the form of a contract for an indefinite period, is not payable in the event that the contract is concluded with a young person for a period during his school holidays or university vacation.

22

As regards the question, raised by the European Commission, of whether the applicant in the main proceedings may be classified as a ‘worker’, it must be recalled that according to consistent case-law of the Court, that concept has a specific independent meaning and must not be interpreted narrowly. Thus, any person who pursues activities that are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to that case-law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (judgments in Lawrie-Blum, 66/85, EU:C:1986:284, paragraphs 16 and 17; Collins, C‑138/02, EU:C:2004:172, paragraph 26; Trojani, C‑456/02, EU:C:2004:488, paragraph 15; and Neidel, C‑337/10, EU:C:2012:263, paragraph 23).

23

In the present case, the applicant in the main proceedings was recruited on 21 December 2010 under a fixed-term employment contract for the period from 21 December 2010 to 24 December 2010, during his university vacation. The actual duration of that contract was thus only four days.

24

Although the fact that a person works for only a very limited number of hours in the context of an employment relationship may be an indication that the activities performed are marginal and ancillary, the fact remains that, independently of the limited amount of the remuneration for and the number of hours of the activity in question, the possibility cannot be ruled out that, following an overall assessment of the employment relationship in question, that activity may be considered by the national authorities to be real and genuine, thereby allowing its holder to be granted the status of ‘worker’ within the meaning of EU law (see, to that effect, judgment in Genc, C‑14/09, EU:C:2010:57, paragraph 26 and the case-law cited therein).

25

The overall assessment of the employment relationship of the applicant in the main proceedings makes it necessary to take into account factors relating not only to the number of working hours and the level of remuneration but also to any rights to paid leave, to the continued payment of wages in the event of sickness, and to a contract of employment which is subject to the relevant collective agreement, to the payment of contributions and, if this applies, to the nature of those contributions (see, to that effect, judgment in Genc, C‑14/09, EU:C:2010:57, paragraph 27).

26

The analysis of the consequences which all those factors which characterise an employment relationship may have for the finding as to whether the employment of the applicant in the main proceedings is real and genuine and, therefore, for his status as a worker is a matter coming within the jurisdiction of the national court. The national court alone has direct knowledge of the facts giving rise to the dispute and it is, consequently, best placed to make the necessary determinations (judgment in Genc, C‑14/09, EU:C:2010:57, paragraph 32).

27

It is therefore for the referring court to make a detailed assessment of all the relevant factors, in particular those set out in paragraph 25 above, in order to establish whether the employment contract held by the applicant in the main proceedings is such as to enable him to claim the status of ‘worker’ within the meaning of EU law.

28

Should the referring court find that the applicant in the main proceedings must be regarded as a worker, it is necessary to examine whether he is justified in relying, in the circumstances in the main proceedings, on the principle of non-discrimination on grounds of age.

29

Under 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 that 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 that directive.

30

Member States enjoy a broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it (judgment in Schmitzer, C‑530/13, EU:C:2014:2359, paragraph 38 and the case-law cited therein).

31

In particular, the requirement as to the comparable nature of the situations for the purposes of determining whether there is an infringement of the principle of equal treatment must be assessed in the light of all the factors characterising those situations (see, inter alia, the judgment in Arcelor Atlantique and Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 25).

32

It must also be stated that, on the one hand, it is required not that the situations be identical, but only that they be comparable and, on the other hand, the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned (judgment in Hay, C‑267/12, EU:C:2013:823, paragraph 33 and the case-law cited therein).

33

Therefore, the Court must examine whether the situation of a student such as the applicant in the main proceedings, employed under a fixed-term employment contract during his university holidays, is objectively comparable, having regard to the aim pursued by Article L. 1243-8 of the Code du Travail, to that of workers who are entitled to the end-of-contract payment under that provision.

34

In the present case, while the end-of-contract payment, which must be paid on the expiry of a fixed-term employment contract, is, as stated in the first subparagraph of Article L. 1243-8 of the Code du Travail, intended to compensate for the insecurity of the employee’s situation where the contractual relationship is not continued in the form of a contract for an indefinite period, subparagraph 2° of Article L. 1243-10 expressly excludes young persons who have concluded a fixed-term employment contract for a period during their school holidays or university vacation from entitlement to that payment.

35

The national legislature thus, by necessary implication, considered that those young persons are not, on the expiry of their contract, in a situation of job insecurity.

36

It must be observed, as the French Government has submitted, that employment carried out on the basis of a fixed-term contract by a pupil or student during his school holidays or university vacation is characterised by being both temporary and ancillary, since that pupil or student intends to continue his studies at the end of that holiday or vacation.

37

It follows that, by holding that the situation of young people who have concluded a fixed-term employment contract for a period during their school holidays or university vacation is not comparable to that of other categories of workers eligible for the end-of-contract payment, the national legislature in no way exceeded the bounds of its discretion in the field of social policy.

38

That finding is moreover supported by the fact that other categories of employees, in situations comparable to that of the applicant in the main proceedings in terms of insecurity within the meaning of the first subparagraph of Article L. 1243-8 of the Code du Travail, have also been excluded under Article L. 1243-10 of that code from entitlement to that payment. That is the case, inter alia, as regards employees recruited under subparagraph 1° of Article L. 1242-2 of that code to replace, in the circumstances provided for by that provision, other employees, or employees recruited under subparagraph 3° of Article L. 1242-2 of that code to fill ‘seasonal posts or posts for which, in certain activity sectors defined by decree or by a collective employment agreement whose scope has been extended by order, it is common practice not to use employment contracts for an indefinite period on account of the nature of the activity performed and the intrinsically temporary nature of those posts’.

39

It follows from the foregoing considerations that a student, such as the applicant in the main proceedings, employed on the basis of a fixed-term employment contract for a period during his university vacation, is not, having regard to the aim pursued by the first subparagraph of Article L. 1243-8 of the Code du Travail, in a situation which is objectively comparable to that of the workers who are entitled to the end-of-contract payment under that provision. The difference in treatment between those two categories of workers therefore does not constitute discrimination on grounds of age.

40

Consequently, the answer to the question referred is that the principle of non-discrimination on grounds of age enshrined in Article 21 of the Charter of Fundamental Rights of the European Union and given specific expression by Directive 2000/78, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, under which an end-of-contract payment, paid in addition to an employee’s salary on the expiry of a fixed-term employment contract where the contractual relationship is not continued in the form of a contract for an indefinite period, is not payable in the event that the contract is concluded with a young person for a period during his school holidays or university vacation.

41

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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.

On those grounds, the Court (Seventh Chamber) hereby rules:

The principle of non-discrimination on grounds of age, enshrined in Article 21 of the Charter of Fundamental Rights of the European Union and given specific expression by Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, under which an end-of-contract payment, paid in addition to an employee’s salary on the expiry of a fixed-term employment contract where the contractual relationship is not continued in the form of a contract for an indefinite period, is not payable in the event that the contract is concluded with a young person for a period during his school holidays or university vacation.