DISCRIMINATION — Equal treatment — Age — Occupational pension scheme — Contributions made by employer as part of employees’ pay — Employer contributions increasing according to age of employee — Whether discrimination on grounds of age — Whether scheme lawful — Council Directive 2000/78/EC, arts 2, 6 HK Danmark (acting on behalf of Kristensen) v Experian A/S (Beskæftigelsesministeriet intervening) (Case C-476/11); [2013] WLR (D) 359 ECJ: President of Chamber R Silva de Lapuerta; Judges G Arestis, J-C Bonichot, A Arabadjiev (Rapporteur) and J L da Cruz Vilaça: 26 September 2013 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, and, in particular, articles 2 and 6(1) of that Directive, did not preclude an occupational pension scheme under which an employer paid, as part of pay, pension contributions which increased with age, provided that the difference in treatment on grounds of age that arose therefrom was appropriate and necessary to achieve a legitimate aim. The Court of Justice (Second Chamber) so held on a reference from the Vestre Landsret (Western Regional Court), Denmark, in proceedings between HK Danmark acting on behalf of the claimant, Glennie Kristensen, and the employer, Experian A/S, concerning the lawfulness of the occupational pension scheme operated by the employer. THE COURT ruled that article 6(2) of Directive 2000/78 applied only to occupational social security schemes that covered the risks of old age and invalidity: see Dansk Jurist-og Økonomforbund (acting on behalf of Toftgaard) v Indenrigs-og Sundhedsministeriet (Case C-546/11); [2013] WLR (D) ***. The pension contributions at issue formed part of the employees’ pay. Accordingly, the age-related increases in those contributions were liable to produce effects going beyond the mere fixing of ages for admission or entitlement to retirement benefits. Further, article 6(2) had to 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, fell within the scope of that provision, but only those that were expressly referred to therein. It followed that the age-related increases in the pension contributions did not fall within the scope of article 6(2) of Directive 2000/78. It was, therefore, appropriate to consider whether that measure was capable of being justified under article 6(1). So far as concerned, in the first place, the question whether the occupational scheme reflected a legitimate aim, it was contended that it was intended to enable, first, older workers, who entered the service of the employer at a later stage in their working life, to build up reasonable retirement savings over a relatively short contribution period. Secondly, it was 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 was applied to them. The scheme thus provided a means for all employees to build up reasonable retirement savings, which they would have at their disposal when they retired. Aims such as those, which took account of the interests of all employees, in the context of social, employment and labour market policy concerns, with a view to ensuring retirement savings of a reasonable amount when an employee retired, might be regarded as legitimate aims. In the second place, it should be determined whether the age-related increases in contributions complied with the principle of proportionality, that was to say, that they were appropriate and necessary to the pursuit of those aims. It was for the national court to weigh up those considerations. Appearances: T Sejr Gad, advocate, for HK Danmark, acting on behalf of the claimant; T Brøgger Sørensen, advocate, for Experian A/S; P Biering, advocate, for the Beskæftigelsesministeriet, intervening; C Vang, agent, and P Biering, advocate, for the Danish Government; M Jacobs and L Van den Broeck, agents, for the Belgian Government; T Henze and J Möller, agents, for the German Government; S Centeno Huerta and S Martínez-Lage Sobredo, agents, for the Spanish Government; C Wissels and C Schillemans, agents, for the Netherlands Government; J Enegren and C Barslev, agents, for the European Commission. Reported by: Ms B L Scully, Barrister.
Posted on: Wed, 02 Oct 2013 13:52:59 +0000
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