Judges J Passer, F Biltgen (Rapporteur), N Wahl, ML Arastey Sahún
Advocate General J Richard de la Tour
The complainant was elected as chairman of the “HK/Privat” sector of HK/Danmark, the main Danish trade union representing clerical and retail workers. Although it was a political position, she was employed full time, did not engage in any other business activity, received a monthly salary and the Danish law on employees’ holidays applied to her. She was re-elected every four years until 2011, aged 63, when she was prevented from standing since she had exceeded the age limit on eligibility laid down in the sector’s rules. The Danish Equal Treatment Board upheld the complainant’s claim that she had suffered discrimination contrary to Danish laws transposing Council Directive 2000/78/EC and ordered the defendant trade union to pay her compensation. After the trade union failed to comply with that order, the Board, acting on the complainant’s behalf, brought an action against the main trade union and the particular sector. The Danish court was of the opinion that the dispute involved the question whether the complainant, as a politically elected chairman of a trade union sector, fell within the scope of Directive 2000/78, article 3(1) of which provided that the Directive applied to all persons, in both the public and private sectors, in relation to: “conditions for access” to employment, self-employment or occupation (article 3(1)(a)) and, inter alia, “involvement” in an organisation (article 3(1)d)). Accordingly, the Danish court stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question, in essence, whether article 3(1)(a) and (d) of Directive 2000/78 meant that an age limit laid down in the rules of a trade union for eligibility to stand as sector chairman of that organisation fell within the scope of the Directive.
On the reference—
Held, it followed from the use, together, of the terms “employment’”, “self-employment” and “occupation” that article 3(1)(a) of Council Directive 2000/78/EC covered conditions for access to any occupational activity, whatever its nature and characteristics, and had to be construed broadly. The EU legislature did not intend to limit the scope of the Directive to posts occupied by a “worker”, within the meaning of article 45 of the FEU Treaty. Rather, the Directive sought to eliminate all discriminatory obstacles to access to livelihoods and to the capacity to contribute to society through work, irrespective of the legal form in which it was provided. Thus, the question whether the conditions for access to the post of sector chairman of a trade union fell within the scope of Directive 2000/78 did not depend on whether or not the chairman was characterised as a “worker”. The fact that such a role was a political post, the holder of which was elected by the members of the organisation, was not relevant since the Directive’s objective would not be achieved if its protection depended on the nature of the functions performed in a particular employment. Further, although the application of the Directive might lead to limitations to the exercise of the freedom of association, such limitations were provided for by law and they respected the essence of the freedom, since they were applied only for the purpose of attaining the Directive’s objectives. Such limitations also respected the principle of proportionality. It followed that the “conditions for access”, within the meaning of article 3(1)(a) of Directive 2000/78, to the post of sector chairman of a trade union fell within the scope of that Directive. Further, standing for election for, and then holding, such a post was a means of “involvement” in such an organisation within the meaning of article 3(1)(d). Accordingly, an age limit laid down in the rules of a trade union for eligibility to stand as the chairman of a sector of that organisation fell within article 3(1)(a) and (d) of Directive 2000/78 (paras 27–29, 34–42, 45, 46, 48, 50, 53, 54, operative part).
P Ahlberg and R Holdgaard for the Ligebehandlingsnævnet (Equal Treatment Board), Denmark, acting on behalf of the complainant, A.
J Goldschmidt for the defendants, the trade union and the sector.
R Asmussen for the Fagbevægelsens Hovedorganisation, the Danish trade union movement’s main organisation, intervening.
N Dafniou, I Kotsoni, O Patsopoulou and E Skandalou, agents, for the Greek Government.
L Grønfeldt and D Martin, agents, for the European Commission.