Latest developments in 2019

• Author: Karin de Vries
• Pages: 87-91

87

12 LATEST DEVELOPMENTS IN 2019

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

Link: http://deeplink.rechtspraak.nl/uitspraak?id=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

Link: http://deeplink.rechtspraak.nl/uitspraak?id=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.