Birgit Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Cunha Rodrigues
• ECLI: ECLI:EU:C:2008:297
• Procedure Type: Reference for a preliminary ruling
• Date: 22 May 2008
• Docket Number: C-427/06
• Celex Number: 62006CC0427

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 22 May 2008 (1)

Case C‑427/06

Birgit Bartsch

v

Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH

(Scope of Community law – Legal effects of directives before the end of their transposition period – Horizontal application of general principles of Community law – Age discrimination – Article 13 EC – Directive 2000/78 – Equal treatment in employment and occupation – Survivors’ pensions – Justification for differential treatment – Proportionality – Limitation ratione temporis of judgments of the Court)

1. The present reference from the Bundesarbeitsgericht (Federal Labour Court), Germany, concerns a clause in an occupational pension scheme whereby a widow(er) of a private-sector employee who dies in service is excluded from entitlement to a survivor’s pension if that widow(er) is more than 15 years younger than the deceased employee. The Bundesarbeitsgericht asks the Court whether such a clause is contrary to the general principle prohibiting age discrimination identified by the Court in Mangold (2) and invites the Court to provide further clarification as to the circumstances in which that principle may apply.

Community law

The Treaty on European Union

2. Article 6 EU states:

‘1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms … and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

…’

The EC Treaty

3. Article 13 EC, introduced by the Treaty of Amsterdam, provides:

‘1. Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it on the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

2. …’

Directive 2000/78 (3)

4. The preamble to Directive 2000/78 cites Article 6(1) and (2) of the Treaty on European Union (4) and lists a number of international instruments recognising the universal right of all persons to equality before the law and protection against discrimination. (5) In respect of age discrimination, it notes that the Community Charter of the Fundamental Social Rights of Workers (6) aims to integrate elderly people socially and economically and that the Employment Guidelines for 2000 agreed by the Helsinki European Council on 10 and 11 December 1999 emphasise the need to pay particular attention to supporting older workers. (7)

5. Recital 25 deals specifically with the possibility of justifying differences of treatment in connection with age. It reads:

‘The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.’

6. Article 1 states that the purpose of the directive is to lay down a general framework for combating discrimination on the grounds covered as regards employment and occupation, with a view to putting into effect the principle of equal treatment.

7. Article 2(1) provides: ‘For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.’

8. According to Article 2(2)(a), ‘direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation …’. Under Article 2(2)(b), ‘indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having … [inter alia] a particular age … at a particular disadvantage compared with other persons, unless: (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary …’.

9. Article 3(1) applies the directive to ‘all persons, as regards both the public and private sectors, including public bodies, in relation to … (c) employment and working conditions, including … pay’.

10. Article 6(1) addresses justifications for differences of treatment on grounds of age:

‘Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.’

Subparagraphs (a) to (c) give examples of such differences in treatment. They include, in specified circumstances, the setting of special conditions for young people and older workers, the fixing of minimum conditions of age, professional experience or seniority, and the fixing of a maximum age for recruitment.

11. Article 6(2) permits Member States, notwithstanding Article 2(2), to provide that the fixing of certain age-related conditions for occupational social security schemes and the use, in the context of such schemes, of age criteria in actuarial calculations does not constitute age discrimination, provided it does not result in sex discrimination.

12. Article 18 stipulates that Member States should transpose Directive 2000/78 by 2 December 2003. However, Member States were permitted to extend that period by three years in respect of the provisions in the directive covering age and disability discrimination. Germany exercised that option and therefore had until 2 December 2006 to transpose those provisions into national law.

The contested guidelines (8)

13. The defendant in the main proceedings runs the occupational pension scheme of Bosch-Siemens Hausgeräte GmbH (‘BSH’). (9) Paragraph 6 of the scheme’s guidelines (‘the Guidelines’) sets out the conditions governing retirement pensions. Paragraph 6(4) provides for a pension to be paid to the widow(er) of an employee who has died during his or her employment relationship, if certain conditions have been met. However, payments will not be made if ‘the widow/widower is more than 15 years younger than the former employee …’ (‘the age-gap clause’).

The main proceedings and the reference made

14. Mrs Bartsch, the applicant in the main proceedings, was born in 1965. She is the widow of Mr Bartsch, who was born in 1944 and who died in 2004 whilst employed by BSH. Apart from the age-gap clause, the conditions in Paragraph 6(4) of the Guidelines for her to receive a widow’s pension were met.

15. Mrs Bartsch applied unsuccessfully to BSH for a pension. Her claim to the Arbeitsgericht (Labour Court) was rejected, and the Landesarbeitsgericht (Regional Labour Court) dismissed her appeal.

16. Appealing to the referring court, Mrs Bartsch claimed, inter alia, that the age-gap clause breached the principle of equal treatment and was therefore invalid.

17. The referring court considers that Mrs Bartsch cannot succeed under domestic law. In particular, although German employment law incorporates the general principle of equal treatment, the age-gap clause is based on a fair reason, namely the limitation of risks assumed by voluntary pension schemes and the aim to make those risks more quantifiable. (10) Those considerations are closely connected to the age-gap clause.

18. However, the referring court wonders whether the qualifications to the general principle of equal treatment that are enshrined in German employment law can survive in the light of the principle of non-discrimination on grounds of age identified by the Court in Mangold.

19. The referring court is unclear, on the basis of Mangold, whether the general principle prohibiting age discrimination is applicable to situations regardless of whether they have a connection to Community law. If not, the court seeks clarification as to whether such a connection arises either from Article 13 EC or from Directive 2000/78, albeit that the events leading to the reference occurred before the deadline for transposing that directive. (11)

20. The referring court notes that, since Mangold arose out of proceedings between private individuals, it would appear that the principle is applicable ‘horizontally’ to such disputes. Mangold, however, involved national legislation which provided for an exception to the prohibition on age discrimination. The referring court asks whether the principle applies horizontally only in respect of such derogating provisions.

21. If the principle is applicable, the referring court considers that it applies to the deceased employee, not the survivor. It believes that the age-gap clause could give rise to indirect age discrimination, on the basis that the probability of an employee being affected increases with his or her age. If that is the case, then the referring court considers that the justifications for such a clause available under German law are also appropriate under Community law.

22. Finally, in view of the nature of occupational pension schemes and the principle of...