Danish law requires of employers in Denmark that, "In the event of the dismissal of a salaried employee who has been continuously employed in the same undertaking for 12, 15 or 18 years, the employer shall, on termination of the employment relationship, pay a sum to the employee corresponding to, respectively, one, two or three months’ salary." However, a caveat applied where, "the employee will receive a State retirement pension on termination of the employment relationship." And therefore, "No severance allowance shall be payable if, on termination of the employment relationship, the employee will receive an old-age pension from the employer and the employee joined the pension scheme in question before reaching the age of 50."
Applying this domestic law to Mr Rasmussen upon termination of his employment at 60 (he took up work with another employer), his private sector employer Ajos refused to pay a severance payment and Mr Rasmussen lodged a discrimination claim on the age ground.
Mr Rasmussen is not a state worker and could not rely on the Framework Directive being directly applied to his situation. However, there was a clear distinction between the caveat in the domestic legislation and the protections afforded by the EU Directive. The CJEU has ruled that, in such circumstances, domestic courts, which are emanations of the state and to which the Directive does have direct effect, must interpret the domestic laws in such a way as to give rise to the protections under the Directive:
"... Articles 2 and 6(1) of Directive 2000/78 are to be interpreted as precluding national legislation, such as the legislation that is the subject of the present request for a preliminary ruling, pursuant to which workers who are eligible for an old-age pension from their employer under a pension scheme which they joined before attaining the age of 50 cannot, on that ground alone, claim a severance allowance aimed at assisting workers with more than 12 years of service in the undertaking in finding new employment (judgment in Ingeniørforeningen i Danmark, C‑499/08, EU:C:2010:600, paragraph 49), the same applies with regard to the fundamental principle of equal treatment, the general principle prohibiting discrimination on grounds of age being merely a specific expression of that principle...
"In the light of the foregoing considerations, the answer to the first question is that the general principle prohibiting discrimination on grounds of age, as given concrete expression by Directive 2000/78, must be interpreted as precluding, including in disputes between private persons, national legislation, such as that at issue in the proceedings before the referring court, which deprives an employee of entitlement to a severance allowance where the employee is entitled to claim an old-age pension from the employer under a pension scheme which the employee joined before reaching the age of 50, regardless of whether the employee chooses to remain on the employment market or take his retirement."
So, it would appear that the private sector employees can, in effect, rely on the Directive. The CJEU had to consider a second question. By its second question, the referring court sought to ascertain, in essence, whether EU law is to be interpreted as permitting a national court seised of a dispute between private persons, where it is established that the relevant national legislation is at odds with the general principle prohibiting discrimination on grounds of age, to balance that principle against the principles of legal certainty and the protection of legitimate expectations and to conclude that the latter principle should take precedence over the former.
The CJEU had no time for this argument either - domestic courts must disapply the offending domestic laws where they are at odds with the Directive and cannot be purposefully interpreted:
"... the answer to the second question is that EU law is to be interpreted as meaning that a national court adjudicating in a dispute between private persons falling within the scope of Directive 2000/78 is required, when applying provisions of national law, to interpret those provisions in such a way that they may be applied in a manner that is consistent with the directive or, if such an interpretation is not possible, to disapply, where necessary, any provision of national law that is contrary to the general principle prohibiting discrimination on grounds of age. Neither the principles of legal certainty and the protection of legitimate expectations nor the fact that it is possible for the private person who considers that he has been wronged by the application of a provision of national law that is at odds with EU law to bring proceedings to establish the liability of the Member State concerned for breach of EU law can alter that obligation."
http://www.bailii.org/eu/cases/EUECJ/2016/C44114.html
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