Latest developments in 2019

AuthorKarin de Vries
12.1 Legislative amendments
- A provision was added to the GETA specifying that the ground ‘sex’ covers gende r
characteristics, gender identity and gender expression.357
- The legal provision on collective action in civil proceedings (Article 3:305a Civil Code)
has been amended, resulting in a significant increase in the requirements to be met
by foundations or associations seeking to engage in proceedings in discrimination
cases, either on behalf of victims or in t he general interest. At the same time, it has
become possible for these foundations or associations to claim pecuniary damages
on behalf of victims of discrimination (see Section 6.2).358
12.2 Case law
Name of the court: Supreme Court
Date of decision: 19 April 2019
Reference number: ECLI:NL:HR:2019:647
Brief summary: Age discrimination in employment. The case concerned the calculation of
redundancy payments to employees who were dismissed after a reorganisation. The
calculation was based on the expected retir ement age of the employee, which was set at
62 for employees born between 1950 and 1952 and at 65 for those born after 1952,
resulting in lower redundancy payments for the first group of employees. The different age
limits were due to t he existence of an early pension scheme for employees born between
1950 and 1952. The d ifference in treatment was considered justifi ed by the lower cou rts,
however the Supreme Court found that the justification test applied by those courts did
not meet the requirements set by the CJEU. According to the Supreme Court, the lower
courts should have l ooked more closely into the subsidiarity and proportionality of the
measure. The judgment thus intensifies the standards f or the justification of age
discrimination under Article 7(1)(c) ADA. The Supreme Court referred the case back to the
Court of Appeal to conduct a new proportionality assessment.
Name of the court: Supreme Court
Date of decision: 20 December 2019
Reference number: ECLI:NL:HR:2019:2037
Brief summary: Age discrimination in employment. Like the previous case, this judgment
concerns the requirements of the justification test in cases of age discrimination. The ABP,
the Dutch pensions fund for public servants, restricted the accrual of pensions for
employees of 62 years and over in receipt of redundancy payments. Article 7(1)(c) ADA
states that differences in treatment on the ground of age are allowed if they are based on
an objective justification. The Supreme Court specifies in the present judgment that the
requirement of an objecti ve justification does not always compel the defendant to submit
calculations or numerical evidence; this depends on the aim of the difference in treatment
and the arguments invoked by the parties. This standard is more lenient than that
formulated in earlier case law, which suggested that calculations or numerical evidence
must always be sub mitted. The Supreme Court found that the ABP had not discriminated
against the applicants on the ground of their age.
Name of the court: Administrative Jurisdiction Division of the Council of State
Date of decision: 12 June 2019
Reference number: ECLI:NL:RVS:2019:1885
357 Act on the clarification of the legal status of transgender and intersex persons (Wet verduidelijking
rechtspositie transgender personen en intersekse personen), Staatsblad 2019, 302.
358 Act on the settlement of damages in collective action cases (Wet afwikkeling massaschade in collectieve
actie), Staatsblad 2019, 130. The Act entered into force on 1 January 2020.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT