Article 15 - Freedom to choose an occupation and right to engage in work
Article 21 - Non-discrimination
Key facts of the case:
Reference for a preliminary ruling — Social policy — Principle of equal treatment in employment and occupation — Directive 2000/78/EC — Prohibition of all discrimination on grounds of age — Public call for expressions of interest — Conditions of participation — Exclusion of retired public-sector and private-sector employees.
Outcome of the case:
On those grounds, the Court (Eighth Chamber) hereby rules:
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, in particular Article 2(2), Article 3(1) and Article 6(1) thereof, must be interpreted as not precluding national legislation prohibiting public administrative authorities from awarding analysis and consultancy roles to retired persons in so far as, first, that legislation pursues a legitimate employment policy and labour market objective and, second, the means deployed to achieve that objective are appropriate and necessary. It is for the referring court to determine whether that is in fact the case in the main proceedings.
13) In his action, the applicant in the main proceedings submits that Article 5(9) of Decree-Law No 95/2012, which prohibits public administrative authorities from awarding analysis and consultancy roles to retired private-sector and public-sector employees, must be disapplied as being contrary to Directive 2000/78. In addition, he contends, that provision infringes Article 21 of the Charter of Fundamental Rights of the European Union. The applicant alleges that the national legislation at issue in the main proceedings gives rise to indirect discrimination which cannot be justified by any legitimate aim.
44) The prohibition of discrimination on grounds of age must be read in the light of the right to engage in work recognised in Article 15(1) of the Charter of Fundamental Rights. It follows that particular attention must be paid to the participation of older workers in the labour force and thus in economic, cultural and social life. Retaining older workers in the labour force promotes diversity in the workforce. However, the interest represented by the continued employment of those persons must be taken into account in respecting other, potentially divergent, interests (see, to that effect, judgments of 21 July 2011, Fuchs and Köhler, C‑159/10 and C‑160/10, EU:C:2011:508, paragraphs 62 to 64, and of 5 July 2012, Hörnfeldt, C‑141/11, EU:C:2012:421, paragraph 37).