Case C-511/19, Age discrimination:

AB – v – Olympiako Athlitiko Kentro Athinon – Spyros Louis, reference lodged by the Areios Pagos (Greece) on 4 July 2019

Does the adoption by the Member State of legislation applicable to government, local authorities and public-law legal entities and to all bodies (private-law legal entities) in the broader public sector in general in their capacity as employer, such as that adopted under Article 34(1)(c), (3)(a) and (4) of Law 4024/2011 placing staff under a private-law contract of employment with the above bodies on reserve for a period not exceeding twenty-four (24) months between 1 January 2012 and 31 December 2013 based solely on the criterion of the closest entitlement to retire on a full old-age pension corresponding to thirty-five (35) years’ insurance, constitute indirect age discrimination within the meaning of Article 2(1) and (2)(b) and Article 3(1)(c) of Directive 2000/78/EC, especially given the fact that, under the insurance legislation in force at the time and disregarding cases that are of no relevance here, staff under a contract of employment needed to be insured with the Social Insurance Institute (IKA) or some other major insurance fund for (at least) 10 500 working days (35 years) and to be (at least) 58 years of age in order to substantiate their right to retire on a full-old age pension, without of course precluding the possibility of the above period of insurance (35 years) being completed at a different age depending on the individual case?
If the answer to Question (A) is in the affirmative, can the adoption of a labour reserve system be objectively and logically justified, within the meaning of Article 2(2)(b)(i) and Article 6(1)(a) of the Directive, by the immediate need to ensure organisational, operational and fiscal results and, more specifically, by the immediate need to cut public spending in order to achieve certain quantitative targets by the end of 2011, as referred to in the explanatory memorandum to the law and provided for in particular under the Medium-Term Fiscal Strategy Framework, and thus honour Greece’s undertaking to its partner-lenders to address the very acute and prolonged fiscal and economic crisis gripping the country and, at the same time, to restructure and reduce the swollen public sector?
If the answer to Question (B) is in the affirmative:
1. Is the adoption of a measure such as that adopted under Article 34(1)(c) of Law 4024/2011, providing for the salary of staff placed on reserve to be cut drastically to 60% of the basic salary of which they were in receipt when they were placed on reserve, without at the same time requiring the said staff to work in the relevant public sector, and causing the loss (in fact) of any promotion in terms of pay-scale or employment grade during the period between their being placed on reserve and their dismissal due to retirement on a full old-age pension, an appropriate and necessary means of achieving the above aim, within the meaning of Article 2(2)(b)(i) and Article 6(1)(a) of the Directive, where:
  1. such staff retain the facility to find an alternative occupation (in the private sector) or have the opportunity to pursue a freelance profession or business while on reserve, without losing the right to payment of the aforesaid reduced basic salary, unless the salary or income from their new occupation or employment exceeds the salary of which they were in receipt prior to being placed on reserve, in which case the above reduced basic salary is cut by the surplus (see Article 34(1)(f)); and
  2. the public-sector employer or, if it is abolished, the Organismos Apascholisis Ergatikou Dynamikou (Hellenic Manpower Employment Organisation, Greece, ‘OAED’) undertakes to pay both the employer’s and the employee’s main, supplementary and health and welfare insurance contributions to the relevant insurance fund based on the salary of which the employee was in receipt prior to being placed on reserve pending the employee’s retirement (see Article 34(1)(d)); and
  3. exemptions from labour reserve status are provided for vulnerable social groups which require protection (other spouse placed on reserve, spouse or child with a disability of at least 67% living with and dependent on the employee, employee with a disability of at least 67%, parents of large families, single-parent family living with and dependent on the employee) (see Article 34(1)(b); and
  4. the aforesaid staff are granted the option of transferring to other vacant posts in public-sector bodies based on objective and merit-based criteria by including them in the selection lists of the Anotato Symvoulio Epilogis Prosopikou (Supreme Council for Civil Personnel Selection, Greece, ‘ASEP’) (see Article 34(1)(a)), although that option was limited in fact owing to drastic cutbacks in staff recruitment by various public-sector bodies due to the need to cut spending; and
  5. care is taken to adopt measures concerning the repayment of housing loans obtained from the Tameio Parakatathikon kai Daneion (Deposits and Loans Fund, Greece) by workers placed on reserve and to draft an agreement between the Greek State and the Enosi Ellinikon Trapezon (Hellenic Bank Association, Greece) to facilitate the repayment of loans contracted by such staff from other banks, based on each worker’s total family income and assets (see Article 34(10) and (11); and
  6. provision has been made under a more recent law (see Article 1(15) of Law 4038/2012, Government Gazette Series I, Number 14) for pension regulations and the payment order to be issued as a matter of priority for the staff referred to under (b) and (c), that is within no more than four months of their dismissal and submission of the supporting documents required in order to release their pension; and
  7. the aforesaid loss of promotion in terms of pay-scale or employment grade by staff under a private-law contract of employment during the period between their being placed on reserve and their dismissal due to retirement on a full old-age pension will not apply in most cases, including the present case, as, due to the length of time the employees have spent in the public sector, they have already reached the top pay scale and/or employment grade provided for under the applicable legislation governing promotions.
2. Is the adoption of a measure such as that adopted under Article 34(1)(e) of Law 4024/2011, eliminating, for employees who are dismissed or who retire from their occupation on qualifying for a full old-age pension, all (or a proportion) of the severance pay provided for under Article 8(b) of Law 3198/1955 equal to 40% of the severance pay provided for employees with supplementary insurance (which, in the case of public-sector bodies fulfilling a public service obligation or subsidised by the State, such as the respondent private-law legal entity, is capped at the sum of EUR 15 000), by offsetting it against the reduced salary received during the period on reserve, an appropriate and necessary means of achieving the above aim within the meaning of Article 2(2)(b)(i) and Article 6(1)(a) of the Directive, bearing in mind that the aforesaid staff would otherwise have received that reduced severance pay under the aforesaid applicable labour legislation irrespective of whether they resigned or were dismissed by the body in which they were employed?

Onderwerpen

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Rechtbank Amsterdam ECLI:NL:RBAMS:2019:10052

AR Updates

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