Key Issues:         Social Policy – Equal Treatment – Age Discrimination

Case:                  Ligebehandlingsnævnet, acting on behalf of A v HK/Danmark

Reference:         Case C-587/20, CJEU (Second Chamber), 2 June 2022

Legislation:       Directive 2000/78/EC

Background

A, who was born in 1948, was recruited in 1978 as a union representative in a local branch of the HK organisation of workers. In 1980, she was transferred to the national confederation. The congress of HK/Service, now HK/Privat, elected her as deputy convenor in 1992, then convenor in 1993. She was subsequently re-elected every four years and held the post of sector convenor of that body until 8 November 2011, when she reached the age of 63 and had exceeded the age limit laid down in Paragraph 9 of the statutes of HK/Privat for standing for the election to be held that year. Paragraph 9 provides that only members who are under the age of 60 on the date of the election may be elected as sector convenor, with that age limit being deferred to 61 for members re-elected after the 2005 congress.

A lodged a complaint with the Equal Treatment Board, claiming that she had been discriminated against on grounds of age. By its decision of 22 June 2016, that board held that it was contrary to the Anti-Discrimination Law for A to be prohibited, by reason of her age, to stand for election as sector convenor of HK/Privat at the congress of 2011 and ordered HK to pay A compensation of Danish Kroner 25 000 (DKK) (approximately EUR 3 400) plus interest.

As that decision was not complied with, the Equal Treatment Board, acting on behalf of A, brought an action against HK before the District Court, Copenhagen. In so far as that action raised questions of principle, it was remitted to the High Court of Eastern Denmark, which decided to stay the proceedings and to refer a question to the Court of Justice (CJEU) for a preliminary ruling on the interpretation of Article 3(1)(a) of Directive 2000/78.

Consideration by CJEU

As provided in Article 3(1)(a) of Directive 2000/78, the directive is to apply to all persons, as regards both the public and private sectors, in relation to conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion.

A provision of the statutes of HK/Privat – which stipulates that only members of that organisation of workers who are under the age of 60 on the date of the election, or in certain cases 61, are eligible for the post of sector convenor – is at issue in the main proceedings, as is apparent from paragraph 9 of this judgment. It is not disputed that the setting of such an age limit constitutes a ‘condition for access’, within the meaning of Article 3(1)(a), to the post of sector convenor. In that regard, the CJEU has already held that national legislation setting a maximum age for recruitment to a job affects the recruitment conditions of those concerned and must, therefore, be regarded as laying down rules relating to access to employment within the meaning of Article 3(1)(a).

By contrast, HK are of the opinion that the role of sector convenor does not fall within the concept of ‘employment’, ‘self-employment’ or ‘occupation’ also set out in Article 3(1)(a). In particular, they maintain that, apart from self-employment, which is not in any event concerned by the role of sector convenor in dispute, the scope of Directive 2000/78 is limited to posts occupied by ‘workers’, within the meaning of Article 45 TFEU, and that the holder of the post of sector convenor cannot be characterised as such.

The CJEU noted that, apart from the fact that Directive 2000/78 expressly refers to self-employment, it also follows from the terms ‘employment’ and ‘occupation’, understood in their usual sense, that the EU legislature did not intend to limit the scope of Directive 2000/78 to posts occupied by a ‘worker’, within the meaning of Article 45 TFEU, who, according to settled case-law of the Court, is a person who, for a certain period of time, performs services for and under the direction of another person in return for which he or she receives remuneration.

The CJEU held that:     

Article 3(1)(a) and (d) of Council Directive 2000/78/EC must be interpreted as meaning that an age limit laid down in the statutes of an organisation of workers for eligibility to stand as sector convenor of that organisation falls within the scope of that directive.

Why Is This Decision Important?

An employer may contravene age discrimination legislation by assuming (incorrectly) that a role in its organisation does not constitute employment. If the employer sets a maximum age limit as qualification for such a role, they could unwittingly find themselves facing a discrimination claim. It is important that all roles in an organisation are considered carefully to ensure that are correctly identified. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62020CJ0587

Note: Although the EU (Withdrawal) Act 2018 provides that a UK court or tribunal is not bound by decisions of the CJEU after the UK leaves the EU, it is likely that UK courts and tribunals will continue to have regard to decisions (past and future) of the CJEU in regard to “retained EU law” unless the UK Supreme Court decides to depart from the CJEU on a particular matter. For this reason, we consider it important to continue to provide case reports on noteworthy CJEU decisions. 

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