Case C‑46/17

Hubertus John

v

Freie Hansestadt Bremen

(Request for a preliminary ruling from the Landesarbeitsgericht Bremen)

(Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Successive fixed-term employment contracts — Clause 5(1) — Measures aimed at preventing the misuse of fixed-term contracts — Directive 2000/78/EC — Article 6(1) — Prohibition of discrimination on the ground of age — National legislation authorising the postponement of the end of the contract of employment fixed at the normal retirement age simply because that the worker qualified for a retirement pension)

Summary — Judgment of the Court (Sixth Chamber), 28 February 2018

1. Social policy—Equal treatment in employment and occupation—Directive 2000/78—Prohibition of discrimination on grounds of age—National measure making the postponement of the date of termination of employment of workers who have reached the legal retirement age subject to the agreement of the employers given for a fixed term—Lawfulness

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

2. Social policy—Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP—Directive 1999/70—Scope—Employment contract or relationship defined by the legislation or national practices—Automatic termination of the employment contract when the employees reaches retirement age—Not included

   (Council Directive 1999/70, Annex)

3. Social policy—Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP—Directive 1999/70—Measures to prevent abuse of successive fixed-term contracts—Objective reasons able to justify the renewal of such contracts—National legislation authorising the postponement of the end of the contract of employment fixed at the normal retirement age simply because that the worker qualified for a retirement pension—Lawfulness

   (Council Directive 1999/70, Annex, Clause 5(1))

1.  Article 2(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that it does not preclude a national provision such as that at issue in the main proceedings, to the extent that it makes the postponement of the date of termination of employment of workers who have reached the legal qualifying age for a retirement pension subject to the agreement of the employers given for a fixed term.

   According to the German Government, by adopting the provision at issue in the main proceedings, the national legislature sought to introduce, in accordance with the wishes of the social partners, a flexible and legally certain opportunity to maintain, where required and under certain conditions, an employment relationship beyond the normal retirement age.

   That interpretation is not invalidated by the referring court, which considers that the provision at issue in the main proceedings may be regarded as permitting a derogation from the principle of the automatic termination of the employment contract when the worker reaches normal retirement age. Unlike younger workers, a worker who has reached the normal retirement age may be offered the choice between continuing the employment relationship and stopping work completely.

   The fact that the parties to the employment contract at issue may, without additional requirements, indefinitely postpone the date of termination of the employment relationship and on more than one occasion if necessary, cannot call that finding into question. To the contrary, such factors may render that provision more favourable and advantageous in so far as they are arrangements for continuing an employment relationship which cannot, in any event, take place without the agreement of both parties to the contract and which are made during the employment relationship.

   (see paras 28-30, 33, operative part 1)

2.  See the text of the decision.

   (see paras 37, 42-44)

3.  Clause 5(1) of Framework agreement on fixed-term work concluded on 18 March 1999, in the annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as meaning that it does not preclude a national provision, such as that at issue in the main proceedings, in so far as it permits the parties to a contract of employment, without additional requirements, indefinitely to postpone, by common agreement during the course of the employment relationship, including on more than one occasion if necessary, the agreed date of termination related to reaching the normal retirement age, simply because that worker, by reaching the normal retirement age, is entitled to a retirement pension.

   In the present case, it must be observed that the concept of ‘objective reasons’, within the meaning of Clause 5(1)(a) of the Framework Agreement, must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (judgment of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 27).

   It must be observed that, according to the referring court, an employee who reaches the standard age for receiving a statutory retirement pension differs not only in terms of social security benefits from other employees but also by the fact that he is generally at the end of his working life and with regard to the fixed term does not have the alternative of an otherwise indefinite employment relationship.

   In addition, as already stated in paragraph 29 of the present judgment, the provision at issue in the main proceedings may be understood as allowing a derogation from the principle of the automatic termination of the contract of employment where the worker reaches the normal retirement age.

   Furthermore, it is clear from the documents before the Court that, by virtue of that provision, the postponement of the date of termination of the employment relationship requires the actual conclusion of an agreement made during the course of that employment relationship which provides that the existing employment relationship is to continue indefinitely and pursuant to which the remainder of the contractual terms are unchanged. Such restrictions give the worker concerned a guarantee that the initial contractual terms will be maintained, while retaining the right to receive a retirement pension.

   (see paras 53-57, operative part 2)