The extension of a contract of employment beyond the normal retirement age may be of limited duration according to a judgement delivered by the European Court of Justice in a judgement delivered on Wednesday 28 February (C-46/17).
Mr John was employed by the City of Bremen as a contract teacher. As he was approaching the normal retirement age he asked for permission to continue working beyond that date. His employer agreed to extend his contract until the end of the 2014/2015 school year but refused to extend his contract until the end of the first half of the school year of 2015/2016.
The Higher Regional Court in Bremen, to which the case had been brought, observes that the German legislation in force allows the parties to a contract of employment, subject to certain conditions, to postpone the date of termination of the contract which takes place simply because the worker, by reaching the normal age for retirement, is entitled to a retirement pension. It asks the Court of Justice whether such legislation is compatible with the prohibition on discrimination based on the grounds of age part of the 2000/78 directive on equal treatment in employment and with the Framework Agreement annexed to the 1989/70 directive on fixed-term work, which aims to prevent the misuse of successive fixed-term contracts.
With its judgment, the Court declares that the prohibition on discrimination on grounds of age does not preclude a national provision, in so far as that provision makes the postponement of the date of termination of the employment of workers who have reached the legal qualifying age for a retirement pension subject to the employer’s consent which is given for a fixed term.
According to the Court, the legislation at issue cannot be regarded as unfavourable with regard to persons having reached retirement age as compared with those who have not. It constitutes a derogation from the principle of the automatic termination of a contract of employment when the worker reaches normal retirement age and allows the date of termination of the employment relationship to be postponed indefinitely, and on more than one occasion, without any other requirements
The continuation of the employment relationship cannot, in any event, take place without the agreement of both parties to the contract. The extension at issue guarantees that the initial contractual terms will be maintained, while preserving the right of the worker concerned to receive a retirement pension.
As regards the Framework Agreement on fixed-term work, the Court observes that nothing in the file before it indicates that the contested legislation might encourage the successive use of fixed-term contracts, or that it constitutes a potential source of abuse to the detriment of workers.
If the German Court were to hold that the extension granted to Mr John must be regarded as the use of successive fixed-term contracts, the Court rules that the Framework Agreement on fixed-term work does not preclude national provisions, such as that at issue in the main proceedings, which allow the parties to an employment contract indefinitely to postpone, by common agreement, and on more than one occasion if necessary, the date of termination of the contract which takes place simply because the worker, by reaching normal retirement age, is entitled to a retirement pension. (Original version in French by Mathieu Bion)