The European Court of Justice followed the proposed decision of the Advocate-General that section 32 of the Public Servants Act is contrary to the prohibition against discrimination due to age.

Background

The case concerned a public servant whose employment was terminated for expiry by the end of December 2006 due to reorganisation. As the public servant had reached the age of 66 at the effective date of termination thereby being entitled to state pension, he was not entitled to redundancy pay under section 32 of the Public Servants Act, even though he was interested in transferring to another position.

The Supreme Court decided to present a preliminary question to the European Court of Justice concerning the construction of Article 6 of the Employment Equality Directive (Directive 2000/78).

Statement of the European Court of Justice

The European Court of Justice followed the proposed decision of the Advocate-General that Articles 2 and 6 of the Employment Equality Directive must be construed to the effect that Section 32 of the Public Servants Act is contrary to the prohibition against discrimination due to age.

Furthermore, Section 32 of the Public Servants Act is not covered by the derogation provision of Article 6 (2) of the Directive, and the Court determined that this article could only apply to occupational social security schemes concerning retirement pension and disability allowance, and it does therefore not cover all forms of occupational social security schemes.

Comments

For a more detailed review of the case, we refer to our Newsletter of 18 February 2013 concerning the proposed decision of the Advocate-General.

Please note that the Supreme Court has not yet decided whether Section 32 of the Public Servants Act is covered by Section 6a of the Non-Discrimination Act implementing Article 6 (2) of the Employment Equality Directive. It must be expected, however, that the Supreme Court will reach the same result as the European Court of Justice as a national act implementing an EU directive must be construed in conformity with Community law.

The content of this Newsletter is not, and should not replace, legal advice.

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