Article 28 - Right of collective bargaining and action
Key facts of the case:
Reference for a preliminary ruling — Social policy — Directive 2000/78/EC — Equal treatment in employment and occupation — Article 2(2) — Prohibition of any discrimination on grounds of disability — Collective agreement on social security — Bridging assistance paid to former civilian employees of the Allied forces in Germany — Termination of the payment of that assistance when the recipient becomes entitled to early payment of a retirement pension for disabled persons under the statutory pension scheme.
Outcome of the case:
For all of the foregoing reasons, I suggest that the Court should answer the question referred by the Landesarbeitsgericht Hamm (Hamm Higher Labour Court, Germany) as follows:
Article 2(2) 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 precluding a provision in a collective agreement under which the receipt of bridging assistance which is calculated by reference to the basic remuneration laid down in the collective agreement and which seeks to provide a reasonable means of subsistence for workers of long standing who have lost their jobs ends, in respect of disabled workers, once the worker concerned is entitled to receive a discounted early retirement pension, where (i) non-disabled members of the workforce may continue to receive the bridging assistance until they acquire the right to draw a retirement pension at the standard retirement age, with that pension being payable in full, (ii) the disabled worker is not offered the choice of continuing to receive that assistance until the standard retirement age, thereby allowing him to continue to participate in the employment market in the same way as his non-disabled counterparts, but must instead incur a significant financial penalty should he wish to remain available for employment until entitled to draw his retirement pension in full.
51) In deciding that issue, it is in my view paramount to keep in mind the situation of severely disabled workers such as Mr Bedi, and, in particular, the specific difficulties and risks which they face. The whole purpose of Directive 2000/78 in its application to workers with a disability is, after all, to prevent those workers being discriminated against and thus to improve their position in the job market. That includes ensuring that they are given the fullest possible opportunities in that market and they are not financially disadvantaged. Those workers, moreover, are likely to face greater difficulties in finding employment than their non-disabled counterparts and those difficulties will tend to become exacerbated as they approach retirement age. ( 33 ) It is important to recall that the right to work was recognised by the Court as long ago as 1974, when it delivered its judgment in Nold v Commission, ( 34 ) and is now enshrined in Article 15 of the Charter of Fundamental Rights of the European Union. ( 35 )