Key facts of the case:
References for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Social policy — Equal treatment of men and women in matters of employment and occupation — Directive 2006/54/EC — National rules providing for the temporary possibility for performing artists having reached retirement age to continue to perform until the age previously laid down for entitlement to a pension, fixed at 47 years old for women and 52 years old for men
Outcome of the case:
On those grounds, the Court (Tenth Chamber) hereby rules:
Article 14(1)(c) 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 must be interpreted as meaning that national rules, such as those laid down in Article 3(7) of Decree-Law No 64 of 30 April 2010, converted into Law No 100, of 29 June 2010, in the version in force at the material time, pursuant to which workers employed as dancers having reached the retirement age laid down by those rules of 45 years old for both women and men, have the option for a transitional period of two years to continue to work until the working age limit laid down by the previous rules, set at 47 years old for women and 52 years old for men, establishes direct discrimination based on sex which is prohibited by that directive
1) These requests for a preliminary ruling concern the interpretation 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 (OJ 2006 L 204, p. 23) and Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
16) The workers concerned in the main proceedings brought an appeal against that judgment before the Corte suprema di cassazione (Court of Cassation, Italy) relying, inter alia, on the incompatibility of Article 3(7) of Decree-Law No 64/2010 with Article 157 TFEU, Article 21 of the Charter and Directive 2006/54.
18) Stating that the outcome of the dispute in the main proceedings depends on the interpretation to be adopted of the concept of ‘non-discrimination on the grounds of sex’ laid down in Directive 2006/54 and Article 21 of the Charter, the referring court asks whether Article 3(7) of Decree-Law No 64/2010 is compatible with the provisions of EU law relied on by the applicants.
19) In those circumstances the Corte suprema di cassazione (Court of Cassation decided to stay the proceedings in both cases and to refer the following questions to the Court for a preliminary ruling:
‘Is the national legislation referred to in Article 3(7) of [Decree-Law No 64/2010], according to which “for workers in the performing arts belonging to the category of dancers, the retirement age is fixed for men and women at the forty-fifth year of chronological age, with the use, for workers to whom the contributory or mixed system applies in full, of the transformation coefficient referred to in Article 1(6) of the Law of 8 August 1995, No 335, relative to the higher age. For the two years following the date of entry into force of this provision, the workers referred to in this paragraph employed on contracts of indefinite duration, who have reached or passed the retirement age, are afforded the option, renewable annually, of remaining in service. This option must be exercised through a formal application to be presented to the ente nazionale di previdenza e assistenza per i lavoratori dello spettacolo (ENPALS) (National Welfare and Assistance Office for Workers in the Entertainment Business) within two months of the date of entry into force of this provision, or at least three months before the qualifying age for a retirement pension is reached, without prejudice to the maximum retirement age of 47 years for women and 52 for men”, contrary to the principle of non-discrimination on grounds of sex, as laid down in Directive 2006/54 and in the Charter (Article 21)?’