Opinion of Advocate General Kokott delivered on 7 May 2020.

• Jurisdiction: European Union
• Celex Number: 62019CC0223
• ECLI: ECLI:EU:C:2020:356
• Date: 07 May 2020
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 7 May 2020 (1)

Case C‑223/19

YS

v

NK

(Request for a preliminary ruling from the Landesgericht Wiener Neustadt (Austria))

(Request for a preliminary ruling — Social policy — Equal treatment of men and women in matters of pay and social security — Directive 2006/54/EC — Occupational pension provision — Special pensions — Occupational pensions in the form of a direct defined benefit pension from the employer — Withholding of a pension security contribution — Lack of increase in special pensions — Indirect discrimination against men — Directive 2000/78/EC — Age discrimination — Charter of Fundamental Rights of the European Union — Article 20 — Article 21 — Prohibition of discrimination on grounds of sex, property and age)

I. Introduction

1. Are men, as the primary recipients of particularly large pensions compared to women who receive substantially smaller pensions on average, indirectly discriminated against by national legislation which introduces, inter alia, a contribution from particularly large ‘special pensions’ in order to secure the pension revenue?

2. This is the central question which is the subject of the present request for a preliminary ruling.

3. In order to secure the long-term financing of pension entitlements, the Austrian legislature has carried out various reforms since the end of the 1990s. In this case, in addition to the statutory pension insurance scheme and the pensions of civil servants, occupational pension agreements in the form of what are known as direct defined benefit pensions from State-controlled undertakings can also indirectly influence the state of public funds. This is because, in this respect, an undertaking is directly obliged to pay the beneficiary a predetermined amount each month after retirement. Particularly large obligations on the part of public undertakings therefore also affect the public revenue via smaller distributions to their shareholders.

4. The applicant in the main proceedings (‘the applicant’) receives such an occupational pension in the form of a direct defined benefit pension from an undertaking with State majority participation. Since 2015, his former employer has firstly been withholding what is known as a pension security contribution from his occupational pension. Secondly, in the scope of the pension adjustment of 2018, State-controlled undertakings were prohibited from making the contractually established annual increase in those occupational pensions if the total pension income of the beneficiary exceeds a certain amount.

5. As the legislation described allegedly affects more men than women and more old people than young people, the applicant considers it to be discriminatory and therefore contrary to EU law. The Court of Justice will therefore have to clarify in the present proceedings whether the anti-discrimination directives and the provisions of the Charter, in particular Articles 20 and 21 thereof, preclude such national legislation.

II. Legal context

A. EU law

1. Directive 2000/78/EC

6. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (‘Directive 2000/78’) (2) has the purpose, according to Article 1 thereof, of laying down a general framework for combating discrimination ‘on the grounds of religion or belief, disability, age or sexual orientation’.

7. Article 3(1) of that directive defines its scope as follows:

‘1. Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:

…

(c) employment and working conditions, including dismissals and pay; …’

2. Directive 2006/54/EC

8. Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (‘Directive 2006/54’) (3) contains, according to Article 1 thereof, inter alia, provisions in relation to ‘working conditions, including pay’ and ‘occupational social security schemes’.

9. Article 2 of that Directive states the following:

‘1. For the purposes of this Directive, the following definitions shall apply:

(a) “direct discrimination”: where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation;

(b) “indirect discrimination”: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary;

…

(e) “pay”: the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his/her employment from his/her employer;

(f) “occupational social security schemes”: schemes not governed by Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security whose purpose is to provide workers, whether employees or self-employed, in an undertaking or group of undertakings, area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social security schemes or to replace them, whether membership of such schemes is compulsory or optional.’

10. Article 4 of Directive 2006/54 states the following:

‘For the same work or for work to which equal value is attributed, direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration shall be eliminated.

In particular, where a job classification system is used for determining pay, it shall be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.’

11. Article 5 of Directive 2006/54 reads as follows:

‘Without prejudice to Article 4, there shall be no direct or indirect discrimination on grounds of sex in occupational social security schemes, in particular as regards:

…

(c) the calculation of benefits, including supplementary benefits due in respect of a spouse or dependants, and the conditions governing the duration and retention of entitlement to benefits.’

B. National law

1. Law on occupational pensions

12. Occupational pension provision in Austria is regulated in the Betriebspensionengesetz (Law on occupational pensions, ‘BPG’) (4).

13. Pursuant to Paragraph 1(1) BPG, this applies to defined benefit pensions provided by an employer to an employee in the scope of an employment relationship under private law in order to supplement the statutory pension insurance scheme.

14. Paragraph 2 BPG provides the following under the title ‘Types of defined benefit pension’:

‘Defined benefit pensions within the meaning of Paragraph 1(1) are obligations on the part of the employer resulting from unilateral declarations, individual agreements or collectively agreed norms

1. to pay contributions to a pension fund or to a facility within the meaning of Paragraph 5 point 4 of the Pensionskassengesetz (Law on pension funds) … on behalf of the employee and his/her survivors; …

2. to provide benefits directly to the employee and his/her survivors (direct defined benefit pension);

3. to pay premiums for a life insurance policy taken out on behalf of the employee and his/her survivors.’

2. Provisions regarding the withholding of pension security contributions

15. The withholding of pension security contributions is based on the Sonderpensionenbegrenzungsgesetz (Law on the limitation of special pension arrangements, ‘SpBegrG’) (5) of 1 January 2015. As an extensive collective amendment, it changed various federal laws, including the Bundesverfassungsgesetz über die Begrenzung von Bezügen öffentlicher Funktionäre (Federal constitutional law on the limitation of remuneration of holders of public office, ‘BezBegrBVG’) (6). This provides for the introduction of upper limits for the remuneration of certain federal civil servants and public officials. It also authorises the federal legislature to introduce pension security contributions from the retirement and pension benefits of those civil servants and from the direct defined benefit pensions of former employees of legal entities subject to the control of the Court of Auditors, if those benefits or entitlements exceed a certain upper limit. Paragraph 10(6) BezBegrBVG authorises the provincial legislatures to introduce such a pension security contribution at provincial level.

16. On the basis of that authorisation, the province of Lower Austria enacted Paragraph 24a of the Niederösterreichisches Landes- und Gemeindebezügegesetz (Lower Austrian Law on provincial and municipal remuneration, ‘NÖ Landes- und GemeindebezügeG’) (7). That provision reads as follows:

‘(1) Beneficiaries of retirement and pension benefits from defined benefit pensions

a. from legal entities established under provincial law,

b. from legal entities which, on account of a majority participation or effective control on the basis of financial, economic or organisational measures of the province of Lower Austria, one or more Lower Austrian municipalities or an association of municipalities, are subject to the control of the Court of Auditors,

have to make a pension security contribution for the proportion which exceeds the amount of the monthly maximum contribution basis pursuant to Paragraph 45 [Allgemeines Sozialversicherungsgesetz (General Law on social security, ASVG)]. This shall also apply to special payments.

(2) The pension security contribution is to be withheld by the paying...