Case C‑476/11

HK Danmark

v

Experian A/S

(Request for a preliminary ruling from the Vestre Landsret)

‛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’

Summary — Judgment of the Court (Second Chamber), 26 September 2013

1. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Scope — Occupational pension scheme providing for pension contributions which increase with age — Contributions paid by the employer to the employee in respect of the employee’s employment — Included

   (Art. 157(2) TFEU; Council Directive 2000/78, recital 13 and Art. 3(1)(c) and (3))

2. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — Exception — Occupational social security schemes fixing ages for admission or entitlement to retirement or invalidity benefits — Scope — Pension contributions which increase with age — Excluded

   (Council Directive 2000/78, Art. 6(2))

3. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — Occupational pension scheme providing for pension contributions which increase with age — Justification based on the pursuit of legitimate aims — Lawfulness — Proportionality — Assessment by the national court — 1. See the text of the decision.

   (Charter of Fundamental Rights of the European Union, Art. 21; Council Directive 2000/78, Arts 2 and 6(1))

   (see paras 25, 26, 30)

1.  Article 6(2) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as applying only to the retirement and invalidity benefits of an occupational social security scheme.

   Since that provision allows Member States to provide for an exception to the principle of non-discrimination on grounds of age, it must be interpreted restrictively. The wording of Article 6(2), and the general scheme and purpose of Directive 2000/78 support the conclusion that that provision applies only to the cases that are exhaustively listed therein.

   Since the pension contributions which increase with age form part of employees’ pay and the age-related increases in those contributions are liable to produce effects going beyond the mere fixing of ages for admission or entitlement to benefits, those increases do not fall within the scope of Article 6(2) of Directive 2000/78.

   (see paras 44-46, 48, 52, 54)

2.  The principle of non-discrimination on grounds of age, enshrined in Article 21 of the Charter of Fundamental Rights and given specific expression by Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, and, in particular, Articles 2 and 6(1) of that directive, must be interpreted as not precluding an occupational pension scheme under which an employer pays, as part of pay, pension contributions which increase with age, provided that the difference in treatment on grounds of age that arises therefrom is appropriate and necessary to achieve a legitimate aim, which it is for the national court to establish.

   (see para. 69, operative part)

Case C‑476/11

HK Danmark

v

Experian A/S

(Request for a preliminary ruling from the Vestre Landsret)

‛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’

Summary — Judgment of the Court (Second Chamber), 26 September 2013

1. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Scope — Occupational pension scheme providing for pension contributions which increase with age — Contributions paid by the employer to the employee in respect of the employee’s employment — Included

   (Art. 157(2) TFEU; Council Directive 2000/78, recital 13 and Art. 3(1)(c) and (3))

2. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — Exception — Occupational social security schemes fixing ages for admission or entitlement to retirement or invalidity benefits — Scope — Pension contributions which increase with age — Excluded

   (Council Directive 2000/78, Art. 6(2))

3. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — Occupational pension scheme providing for pension contributions which increase with age — Justification based on the pursuit of legitimate aims — Lawfulness — Proportionality — Assessment by the national court — 1. See the text of the decision.

   (Charter of Fundamental Rights of the European Union, Art. 21; Council Directive 2000/78, Arts 2 and 6(1))

   (see paras 25, 26, 30)

1.  Article 6(2) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as applying only to the retirement and invalidity benefits of an occupational social security scheme.

   Since that provision allows Member States to provide for an exception to the principle of non-discrimination on grounds of age, it must be interpreted restrictively. The wording of Article 6(2), and the general scheme and purpose of Directive 2000/78 support the conclusion that that provision applies only to the cases that are exhaustively listed therein.

   Since the pension contributions which increase with age form part of employees’ pay and the age-related increases in those contributions are liable to produce effects going beyond the mere fixing of ages for admission or entitlement to benefits, those increases do not fall within the scope of Article 6(2) of Directive 2000/78.

   (see paras 44-46, 48, 52, 54)

2.  The principle of non-discrimination on grounds of age, enshrined in Article 21 of the Charter of Fundamental Rights and given specific expression by Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, and, in particular, Articles 2 and 6(1) of that directive, must be interpreted as not precluding an occupational pension scheme under which an employer pays, as part of pay, pension contributions which increase with age, provided that the difference in treatment on grounds of age that arises therefrom is appropriate and necessary to achieve a legitimate aim, which it is for the national court to establish.

   (see para. 69, operative part)