CJEU Case C-223/19 / Opinion

31) According to the referring court, this legislation statistically affects more men than women, more old people than young people and more wealthy people than non-wealthy people. This raises the question of whether the legislation is compatible with the prohibitions of (indirect) discrimination on grounds of sex and age contained in Directives 79/7, 2000/78 and 2006/54. It is also considering breaches of Articles 17, 20, 21 and 47 of the Charter.

32) Specifically, by its first two questions, the referring court essentially seeks to ascertain whether the said directives are applicable (see A. below) and whether the national legislation constitutes indirect discrimination on grounds of sex (see B. below) or of age (see C. below). In addition, it raises the question of the applicability of the Charter in the main proceedings and, if this is answered in the affirmative, of the interpretation of the aforementioned fundamental rights with regard to the legislation at issue (see D. below).

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91) By its third to eighth questions referred, which are to be examined together, the referring court essentially seeks to ascertain how Articles 17, 20, 21 and 47 of the Charter are to be interpreted with regard to national legislation such as the interference with pension entitlements at issue.

92) Specifically, it firstly asks by its fourth and fifth questions whether the equal treatment requirements of Articles 20 and 21 of the Charter preclude such legislation, in particular whether discrimination on grounds of property within the meaning of Article 21(1) of the Charter is to be seen therein. It then seeks to ascertain, by its sixth and seventh questions, whether freedom of contract and property could preclude such legislation. Finally, by its eighth question, it seeks to ascertain whether, in the present case, Article 47 of the Charter could preclude the circumstance of there being no possible direct legal recourse against Paragraph 24a NÖ Landes- und GemeindebezügeG and Paragraph 711(6) ASVG.

93) However, it must firstly be clarified to what extent the Charter is even applicable in the main proceedings (see 1. below). It is true that, by its third question, the referring court merely asks, in this respect, whether application of the Charter comes into consideration even if the legislation at issue does not give rise to indirect discrimination within the meaning of Directives 2000/78 and 2006/54. However, in this respect, it is also necessary to examine the Commission’s objections regarding the applicable provisions of the Charter.

94) Only when that examination is concluded is it possible to discuss the significance of the individual provisions of the Charter with regard to legislation such as that at issue in the main proceedings (see 2. below).

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95) In the opinion of the referring court, the Charter is applicable in the main proceedings irrespective of whether indirect discrimination within the meaning of Directive 2006/54 or Directive 2000/78 is established, because the interference with pension entitlements at issue concerns occupational pensions that are covered by the material scope of those directives. ( 50 )

96) In this regard, it should be borne in mind that the applicability of the Charter requires action by the Member States within the scope of EU law. ( 51 ) However, it is not sufficient in this respect that a national measure comes within an area in which the European Union has powers. ( 52 ) It is instead necessary, according to settled case-law, that EU law in the subject area concerned imposes certain obligations on Member States with regard to the situation at issue in the main proceedings. ( 53 )

97) Therefore, the mere fact that the national legislation at issue concerns occupational pensions is not sufficient for the Charter to be applicable.

98) However, in so far as the legislation at issue actually introduces indirect discrimination on grounds of sex with the calculation of the benefits, which requires justification, ( 54 ) it is subject to specific requirements of EU law with regard to the configuration of occupational pensions. Under Directives 2006/54 and 2000/78, the allocation and calculation of benefits in occupational social security schemes must namely be free from discrimination. In this respect, the provisions at issue therefore constitute implementation of EU law within the meaning of Article 51(1) of the Charter. ( 55 )

99) However, in the opinion of the Commission, even if the legislation at issue gave rise to indirect discrimination on grounds of sex, only Article 21(1) of the Charter would be applicable, and specifically only in so far as it prohibits discrimination on grounds of sex. This is because, as Directive 2006/54 gives specific expression to Article 21 of the Charter in this regard, ( 56 ) the Member State is therefore also only implementing EU law in this respect.

100) However, it firstly corresponds to the spirit and purpose of the binding effects of the Charter for the Member States when they are implementing EU law that these binding effects are comprehensive. Pursuant to Article 51(1) of the Charter, the institutions of the Union are namely bound by the Charter in all their actions and therefore comprehensively. However, the binding effects for the Member States ‘when they are implementing EU law’ is precisely intended to ensure that they do not breach fundamental rights as ‘agents’ of the Union. ( 57 ) The Charter’s binding effects thereon must accordingly correspond in scope to those of the Union.

101) Secondly, the case-law of the Court according to which the anti-discrimination directives give specific expression to Article 21 of the Charter does not mean that they determine the normative content of that fundamental right, with the result that fundamental rights protection can go no further than the directives. ( 58 ) According to that case-law, the directives are instead to be interpreted in the light of Article 21 of the Charter. This means that, where a breach of the former is established, it is no longer necessary to separately examine an infringement of Article 21 of the Charter from the same perspective. ( 59 ) However, respect for other fundamental rights of the Charter remains, of course, mandatory.

102) The Court has accordingly already ruled that the Member States are obliged to comply with Article 28, Article 15 and Article 16 of the Charter within the scope of Directive 2000/78. ( 60 ) It also referred, for instance within the scope of Directive 2004/38/EC, ( 61 ) to the obligation of the Member States to comply with Article 7 and Article 24(2) of the Charter. ( 62 )

103) Consequently, the third question is to be answered to the effect that Article 51(1) of the Charter is to be interpreted as meaning that an implementation of EU law lies in the legislative configuration of occupational pensions falling within the scope of Directives 2006/54 and 2000/78 if this introduces discrimination requiring justification within the meaning of those directives.

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104) It has already been explained above that, even if the referring court comes to the conclusion that the legislation at issue gives rise to indirect discrimination on grounds of sex that requires justification, Article 21(1) of the Charter is no longer to be examined from the perspective of sex or age discrimination. ( 63 ) It is therefore not necessary to answer the fourth question referred in this respect.

105) However, it would have to be examined how Article 21(1) of the Charter is to be interpreted from the perspective of discrimination on grounds of property with regard to the legislation at issue.

106) This is not precluded by the fact that Directive 2000/78 does not list property as a ground for discrimination and Article 21(1) of the Charter cannot extend the scope of that directive to include a ground for discrimination that is not provided for therein. ( 64 ) This is because the present context does not involve the examination of a breach of Directive 2000/78, but instead compliance with provisions of the Charter in the implementation of EU law by a Member State, specifically in the case of discrimination within the meaning of Directive 2006/54.

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109) In the opinion of the referring court, Article 17(1) of the Charter could also preclude the legislation at issue, as the latter constituted ‘an expropriatory intervention directly by law and without compensation’ in the right to property of the pensioners affected. The referring court also considers the right to property of the former employers to be affected, because their freedom of contract would be impaired in so far as, contrary to the contractual agreements, they were not allowed to increase the occupational pension entitlements.

110) According to the case-law of the Court, freedom of contract is part of the freedom to conduct a business which is established in Article 16 of the Charter. This includes the freedom to fix ( 66 ) or agree the price for a service. In so far as the interference with pension entitlements at issue regulates the amount of the contractually agreed occupational pension which, according to the case-law, is to be regarded as an aspect of remuneration, ( 67 ) it therefore constitutes a limitation on the freedom to conduct a business.

111) The concept of property of Article 17(1) of the Charter includes all rights with an asset value creating an established legal position under the legal system, enabling the holder to exercise those rights autonomously and for his benefit. ( 68 ) From the employee’s point of view, this also fundamentally includes pension entitlements. However, according to the case-law of the Court, the right to property cannot be interpreted as entitling a person to a pension of a particular amount. ( 69 ) In particular, merely future, uncertain prospects of an increase in value, such as the annual adjustment of the occupational pension, cannot be regarded as a specific item of property. However, withholding a part of entitlements already acquired is to be regarded as a limitation on the use of property within the meaning of the third sentence of Article 17(1) of the Charter.

112) Article 52(1) of the Charter provides that such a limitation on the fundamental right to property and the freedom to conduct a business must be provided for by law and must respect the essence of those rights. In observance of the principle of proportionality, it may be imposed only if it is necessary and genuinely meets objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. ( 70 )

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114) Finally, the referring court is of the opinion that an infringement of Article 47 of the Charter is to be seen in the fact that pensioners affected cannot directly take action against the constitutional provisions of the SpBegrG and the regulations based thereon and assert an infringement of EU law, but are instead relegated to making a claim against their former employers for damages or reimbursement of the amounts withheld.

115) It is sufficient to note in this regard that, according to the case-law of the Court, an indirect possibility of reviewing observance of the fundamental right resulting from Article 47 of the Charter is sufficient if, in the scope of that possibility for action, the compatibility of the national provisions with EU law can be clarified as a preliminary issue. ( 74 ) That is evidently the case here.

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116) In view of the foregoing considerations, I propose that the Court reply as follows to the questions referred by the Regional Court of Wiener Neustadt (Austria): 

1. Article 4(2) and Article 5(c) 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 are to be interpreted as possibly precluding, in principle, national provisions which, in respect of recipients of occupational pensions in the form of direct defined benefit pensions from State-controlled undertakings, provide for the withholding of a pension security contribution and the lack of the contractually stipulated increase in their entitlements, if those entitlements exceed a certain amount fixed by law. That presupposes, however, that the percentage of the members of one sex whose entitlements exceed that amount out of the total number of members of that sex in the group of people entitled to the type of occupational pension concerned is significantly higher than the corresponding percentage of the members of the other sex, and that fact cannot be justified by an objective reason unrelated to any discrimination on grounds of sex.
2. Article 2(1) 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 meaning that national provisions which provide, in respect of recipients of occupational pensions of a certain type whose amount exceeds a limit fixed by law, for the withholding of a pension security contribution or the lack of the contractually stipulated increase in their entitlements do not constitute indirect discrimination on grounds of age within the meaning of that provision where, after a certain point in time, that type of occupational pension was no longer operated and, therefore, beneficiaries of other types of occupational pension which were operated later do not fall within the scope of those provisions.
3. Article 51(1) of the Charter of Fundamental Rights of the European Union is to be interpreted as meaning that an implementation of EU law lies in the legislative configuration of occupational pensions falling within the scope of Directives 2006/54 and 2000/78 if this introduces discrimination requiring justification within the meaning of those directives.
4. Article 16 of the Charter is to be interpreted as meaning that a limitation on the freedom of the employer to agree the remuneration for the work performed by an employee is to be regarded as justified if, in observance of the principle of proportionality, it is necessary and genuinely meets an objective of general interest, such as maintaining the financial feasibility of the pension systems. The same is true of a limitation of use of the property of an employee, within the meaning of Article 17(1) of the Charter, brought about by the withholding of part of a company pension entitlement, where that entitlement exceeds a certain threshold value and the amount of the contribution to be made depends on the amount of the entitlement.
5. Article 47 of the Charter is to be interpreted as not requiring the national legal order of a Member State to provide for a free-standing action for an examination of whether national provisions are compatible with EU law, provided that other effective legal remedies, which are no less favourable than those governing similar domestic actions, make it possible for such a question of compatibility to be determined as a preliminary issue.