France / State Council / 352393 Mrs A, an agent of the Electricity Transmission network v the State

Key facts of the case:

Policy area concerned – labour law Facts of the case: Applicant requests to cancel Decree No. 2011-289 of 18 March 2011 amending the Staff Regulations of the national electricity and gas industries that raises the age (from 65 to 67 years old) at which an agent who did not take the initiative of a retirement plan can be retired at the initiative of the employer. Applicant also requests to cancel Decree No. 2011-290 of 18 March 2011 relating to the special pension for electricity and gas industry staff that raised the age of entitlement to a pension. Legal questions raised: Does setting the age at which an agent can be retired at the initiative of the employer constitute a difference in treatment based on age? Is it justified? The High Administrative Court states that setting an age at which an agent is retired at the initiative of the employer constitutes a difference in treatment based on age. However, in setting an age at which electricity and gas industry staff, as all agents under a regulatory status submitted to a special regime of pension can be retired at the initiative of the employer, the regulatory authority implemented the right of everyone to have a job allowing the exercise of this right by the largest number of people. This goal meets the requirements of the employment policy and of the labour market. In the context of the employment guarantee offered for electricity and gas industry staff, it is necessary to aim for the best distribution of jobs between generations. This goal is legitimate and objectively and reasonably justifies a difference in treatment based on age.

Paragraphs referring to EU Charter: 

 

Taking into account that according to article 51 of the Charter its provisions are addressed to the Member States only when they implement Union law, and that the decrees did not intend to implement the law of the European Union, the applicant cannot reasonably argue that the procedure prior to their adoption infringed articles 12 and 28 of the Charter. Taking into account that article 21 paragraph 1 of the Charter of Fundamental Rights of the European Union, which can be invoked before the courts in order to interpret acts of the European Union institutions implementing its principles, prohibits discrimination based on age. Under article 52 paragraph 1 of the Charter of Fundamental Rights of the European Union, any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. The Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation which aims to fight against discrimination including on the grounds of age, says in article 6 paragraph 1 that Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary. It follows from these provisions, as interpreted in the light of the principles of the Charter of Fundamental Rights of the European Union by the Court of Justice of the European Union, in particular in its judgments No. C-411 / 05 of 16 October 2007 and No. C-447/09 of 13 September 2011, that the legitimate objectives of a general nature mentioned in the Directive are distinct from purely individual reasons that are specific to the situation of the employer, such as cost reduction or improving competitiveness. Given the States’ margin of appreciation in the area of social policy, the national policy aiming to promote access to employment through better distribution between generations constitutes such a legitimate objective. The appropriateness and necessity of differential treatment based on age is assessed taking into account the fact that the concerned persons have the right to a pension and, potentially, to the benefits of subsidiary allowances, and their amount cannot be considered unreasonable.

Deciding body (original language): 
Conseil d’Etat
Language: 
French