Brussels, 22/11/2010 (Agence Europe) - National rules which, to promote employment of younger people, allow the dismissal of workers who have acquired the right to draw their retirement pension, when women acquire this right at an age five years younger than men, constitute discrimination directly based on gender which is prohibited under European law on equal treatment of men and women (Directive 76/207/EEC).
That was the substance of the judgment handed down by the Court of Justice in Case C-356/09 in response to two questions put by the Austrian Supreme Court for a preliminary ruling. The Austrian court was hearing the case of a woman, chief physician at a pension insurance institution, whose employment was terminated when she reached the pension age (60), though she wanted to continue to work until the age of 65 (the legal retirement age for men). The argument used by her employer was that, if she continued to work, she would be depriving a younger person of her post. Equally, since she would have had an income (her pension), under the law in force she would no longer have been covered by specific anti-dismissal protection provided for in staff regulations B for doctors and dentists employed by Austria's Social Security Providers, but come under the statutory wrongful dismissal regime.
The Austrian court wanted to know: - if Directive 76/207 precluded a provision of a collective agreement offering special protection against dismissal, over and above the statutory general protection, only until there is social (financial) cover in the form of a retirement pension if men and women become entitled to draw that retirement pension at different times; - if the same directive precluded a decision by a public employer terminating the employment of a female employee just a few months after she acquires the financial cover of a retirement pension, in order to employ new workers who are already pressing to join the job market.
Citing a wealth of case law, the Court said firstly that conditions for payment of a retirement pension and the conditions governing termination of employment are separate issues. With regard to the latter, application of the principle of equal treatment (Directive 76/207) means that there is to be no direct or indirect discrimination on the grounds of sex in the public or private sectors, including public bodies. By virtue of the collective agreement in force, the age of retirement being different for men and women, women may be dismissed when they reach the age of 60, while their male colleagues can only be dismissed when they reach 65. This constitutes a difference in treatment that is directly based on gender. This difference is discriminatory in that a specific advantage for women cannot be claimed from their being able to retire five years before their male colleagues since, on the basis on two previous judgments, this advantage “is not directly connected with the object of the rules establishing a difference in treatment”. Men and women are, therefore, “in identical situations so far as concerns the conditions governing termination of employment”. Moreover, that difference “cannot be justified by the objective, relied upon by the pension insurance institution, of promoting employment of younger persons”. The Court, since it was not asked about possible age discrimination, left it to the competent national court to come to a decision. (F.G./transl.rt)