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CJEU Case C-223/19 / Opinion

YS v NK.

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Decision date:
07/05/2020
ECLI:
ECLI:EU:C:2020:356

Key facts of the case:

Reference for a preliminary ruling – Equal treatment in employment and occupation – Directives 2000/78/EC and 2006/54/EC – Scope – Prohibition of indirect discrimination on grounds of age or sex – Justifications – National legislation providing for an amount to be withheld from pensions paid directly to their recipients by undertakings in which the State has a majority participation and for the cancellation of the indexation of the amount of those pensions – Articles 16, 17, 20 and 21 of the Charter of Fundamental Rights of the European Union – Applicability – Discrimination on grounds of property – Infringement of the freedom of contract – Infringement of the right to property – Article 47 of the Charter of Fundamental Rights – Right to an effective remedy.

Outcome of the case:

In view of the foregoing considerations, I propose that the Court reply as follows to the questions referred by the Regional Court of Wiener Neustadt (Austria): 

  1. Article 4(2) and Article 5(c) of 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 are to be interpreted as possibly precluding, in principle, national provisions which, in respect of recipients of occupational pensions in the form of direct defined benefit pensions from State-controlled undertakings, provide for the withholding of a pension security contribution and the lack of the contractually stipulated increase in their entitlements, if those entitlements exceed a certain amount fixed by law. That presupposes, however, that the percentage of the members of one sex whose entitlements exceed that amount out of the total number of members of that sex in the group of people entitled to the type of occupational pension concerned is significantly higher than the corresponding percentage of the members of the other sex, and that fact cannot be justified by an objective reason unrelated to any discrimination on grounds of sex.
  2. Article 2(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation is to be interpreted as meaning that national provisions which provide, in respect of recipients of occupational pensions of a certain type whose amount exceeds a limit fixed by law, for the withholding of a pension security contribution or the lack of the contractually stipulated increase in their entitlements do not constitute indirect discrimination on grounds of age within the meaning of that provision where, after a certain point in time, that type of occupational pension was no longer operated and, therefore, beneficiaries of other types of occupational pension which were operated later do not fall within the scope of those provisions.
  3. Article 51(1) of the Charter of Fundamental Rights of the European Union is to be interpreted as meaning that an implementation of EU law lies in the legislative configuration of occupational pensions falling within the scope of Directives 2006/54 and 2000/78 if this introduces discrimination requiring justification within the meaning of those directives.
  4. Article 16 of the Charter is to be interpreted as meaning that a limitation on the freedom of the employer to agree the remuneration for the work performed by an employee is to be regarded as justified if, in observance of the principle of proportionality, it is necessary and genuinely meets an objective of general interest, such as maintaining the financial feasibility of the pension systems. The same is true of a limitation of use of the property of an employee, within the meaning of Article 17(1) of the Charter, brought about by the withholding of part of a company pension entitlement, where that entitlement exceeds a certain threshold value and the amount of the contribution to be made depends on the amount of the entitlement.
  5. Article 47 of the Charter is to be interpreted as not requiring the national legal order of a Member State to provide for a free-standing action for an examination of whether national provisions are compatible with EU law, provided that other effective legal remedies, which are no less favourable than those governing similar domestic actions, make it possible for such a question of compatibility to be determined as a preliminary issue.