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Greece/ Council of State/ 222/2019

Applicant (educator) v. Minister of Education, Research and Religion

Policy area:
Employment and social policy
Deciding Body type:
National Court/Tribunal
Deciding Body:
Council of State
Decision date:
06/11/2018

Key facts of tke case:

The case concerns an appeal lodged before the Council of State against decision No 1651/2016 of the Athens Administrative Court of Appeals, adjudicating in the first instance. The contested decision rejected the appellant’s petition for the annulment of an act issued by the Director of Secondary Education -Athens Administrative District A, which found that her employment relationship was terminated automatically due to the fulfilment of the conditions laid down in Article 155 (2) of the Code of Civil Servants, i.e. her reaching the age of 60 years, having completed thirty-five years of actual service (not including unpaid leave etc.) counting towards retirement, in accordance with the applicable law on the pensions of public employees. Article 155 (2) provides that “1. A public employee shall be automatically dismissed from service upon reaching the age of 65 years. 2. Exceptionally a public employee shall be automatically dismissed from service at the age of 60 years, having completed  thirty-five (35) years of actual service counting towards retirement."

Key legal question:

The key legal question brought forward for the Court’s consideration was whether the provision of Article 155 (2) of the Code of Civil Servants, in so far as it mandates the automatic dismissal of public employees - including primary and secondary education teachers - upon them reaching the age of 60, having completed thirty-five (35) years of actual service - is contrary to the provisions of Directive 2000/78/ EC, Law 3304/2005 (ratifying Protocol 14 ECHR) and Law 4443/2016 (transposing Directive 2000/78/ EC), as well as Articles 2 par. 1 (dignity), 4 par. 1 (equality), 5 par. 1 (freedom to develop one’s personality and to participate in the social, economic and political life) and 17 (right to property) and 22 (right to employment) of the Greek Constitution, articles 15 and 21 of the CFREU, and article 1 of the First Additional Protocol to the ECHR.

Outcome of the case:

The appeal was dismissed as unfounded. The court found that the relevant national law provision did not run contrary to the provisions of the CFREU, Directive 2000/78/ EC, the Greek Constitution or the ECHR . Moreover, the court dismissed the appellant’s argument that the contested provision of the Code of Civil Servants infringes the principles of impartiality and transparency, primarily due to the fact that these principles are unrelated and not applicable to the issue regulated in that provision.

According to established case law, the purpose of article 155 of the Code of Civil Servants is: (a) to create a balance between younger and senior civil servants, allowing for the transfer of experience from senior staff to the younger employees, as well as of the new knowledge acquired recently by the younger employees to the senior staff, in the interest of the effective functioning of public services and (b) facilitating access to positions in the public sector for younger persons, which, in conjunction with similar provisions in other sectors, can contribute to the increase of young people's employment. Especially as regards teachers,  this balance between younger and older employees also serves towards providing better education to students, who will benefit both from the experience and depth of knowledge of senior teachers and the knowledge younger teachers have acquired more recently, as well as their different approaches to various issues. The exceptional provision for the retirement of public employees at the age of 60 on the condition that they have completed thirty-five years of actual service counting towards retirement, serves all the more towards accomplishing the abovementioned goals while allowing teachers to have a long career and receive a full pension. In addition, in accordance with Article 6 (1) of the Directive, differences in treatment directly related to age, such as those established in article 155 (2) of the Code of Civil Servants between public employees who have reached the age of 60, having completed 35 years of actual service, on the one hand, and employees who have either not reached the age of 60 or have been retired at the age of 65 on the other, are permitted if introduced to serve a legitimate aim and the means used to achieve it are suitable and necessary. Necessity is established, among others, based on the balance between the damage inflicted on the individual and the benefits to the public. The court found that the abovementioned aims pass this proportionality assessment and that this established interpretation it adopted does not run contrary to articles 15 and 21 CFREU.

The court ruled that the termination of the employment relationship was lawful and the appeal was dismissed.