Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 29 May 2018(1)

Case C‑312/17

Surjit Singh Bedi

v

Bundesrepublik Deutschland

Bundesrepublik Deutschland in Prozessstandschaft für das Vereinigte Königreich von Großbritannien und Nordirland

(Request for a preliminary ruling from the Landesarbeitsgericht Hamm (Hamm Higher Labour Court, Germany))

(Reference for a preliminary ruling — Social policy — Equal treatment in employment and occupation — Directive 2000/78/EC — Prohibition on discrimination based on disability — Collective agreement providing for payment of bridging assistance to cease on the recipient becoming entitled to early payment of a retirement pension for disabled persons)

1.        By this request for a preliminary ruling, the Court is asked to consider the application of the rules on disability discrimination laid down in Council Directive 2000/78/EC (2) to a worker who, having qualified for payments made pursuant to a collective agreement with the aim of ensuring a reasonable means of subsistence for workers who had lost their jobs, had his right to those payments terminated because he became entitled to an early retirement pension, payable (albeit at a reduced rate) on the ground of his disability. The worker concerned suffered material financial loss as a result.

 Legal framework

 EU law

 The Treaty on the Functioning of the European Union

2.        According to Article 157(2) TFEU:

‘For the purpose of this Article, “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.’

 Directive 2000/78

3.        Article 1 of Directive 2000/78 provides:

‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’

4.        According to Article 2 of that directive, so far as relevant to this Opinion:

‘1.      For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

2.      For the purposes of paragraph 1:

(a)      direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;

(b)      indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

(i)      that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or

(ii)      as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 ^[(3)^] in order to eliminate disadvantages entailed by such provision, criterion or practice.

…’

5.        Under Article 3 of Directive 2000/78, so far as relevant to this Opinion:

‘1.      Within the limits of the areas of competence conferred on the [European Union], this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:

…

(c)      employment and working conditions, including dismissals and pay;

…

3.      This Directive does not apply to payments of any kind made by state schemes or similar, including state social security or social protection schemes.

…’

6.        Article 16 of Directive 2000/78 states:

‘Member States shall take the necessary measures to ensure that:

(a)      any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished;

(b)      any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers’ and employers’ organisations are, or may be, declared null and void or are amended.’

 National legal provisions

7.        The Tarifvertrag zur sozialen Sicherung der Arbeitnehmer bei den Stationierungsstreitkräften im Gebiet der Bundesrepublik Deutschland (collective agreement on social security for persons employed by armed forces stationed in the Federal Republic of Germany; ‘the collective agreement’) was entered into between that Member State and a number of trade unions on 31 August 1971. It sets out the conditions of employment relative to workers engaged by the armed forces of other States stationed on its territory. Those States include the United Kingdom. (4)

8.        Paragraph 4 of the collective agreement is entitled ‘bridging assistance’. It provides for that assistance to be paid in addition to any income received from other employment outside the armed forces stationed on German territory. The same provision sets out a formula for calculation of the assistance, which is to be based on the monthly salary paid to the recipient on the termination of his employment with the armed forces.

9.        By virtue of Paragraph 8 of that agreement, payments of the assistance are to cease inter alia when the worker in question becomes entitled to receive an early retirement pension under the national social security laws.

 Facts, procedure and the question referred

10.      Mr Surjit Singh Bedi was born on 3 August 1954 and is classified as severely disabled, with a 50% disability rating. He began working for the United Kingdom armed forces stationed in Germany in 1978 as a civilian employee, latterly as a security guard at the station in Münster (Germany). As part of the arrangements for the closure of that station, he was declared redundant on 31 December 2013. On 1 March 2014, he was engaged as a security guard by a private company. He remains in employment there and has, since 1 April 2016, been working under a contract which provides for him to work a varying number of hours each month, with a salary which is correspondingly variable.

11.      Following his redundancy, Mr Bedi received the bridging assistance payable under Paragraph 4 of the collective agreement (‘the assistance’) as from 1 January 2014, latterly at the rate of EUR 1 604.20 per month. However, by letter of 23 March 2015 the German authorities informed him that, since he qualified for an early retirement pension payable to severely disabled persons with effect from 1 May 2015, his right to the assistance would cease as from 30 April 2015. With effect from 1 May 2015, Mr Bedi became entitled to the early retirement pension, payable at the rate of EUR 909.50 per month. That rate was reduced by 10.8% in order to reflect the period of 36 months by which payment of the pension was accelerated. In addition, the amount payable by way of pension fell to be reduced by a series of thresholds calculated by reference to any employment income to which the recipient might be entitled. It appears that Mr Bedi would or might fall within the thresholds in question and that any pension he might receive would accordingly be restricted. The order for reference describes Mr Bedi’s net financial position as a result of losing his entitlement to the assistance as being substantially worse, all things taken into account, than it would have been if he had continued to receive the assistance until payment of his pension in full.

12.      Had Mr Bedi not been severely disabled, he would not have been entitled to receive a state retirement pension until the age of 63. Payments of the assistance would, in that case, have continued until at least 1 September 2017.

13.      Mr Bedi brought proceedings challenging the decision to cease payment of the assistance before the Arbeitsgericht Münster (Münster Labour Court) in Germany against the Federal Republic of Germany, first, on its own behalf as a party to the collective agreement and, second, in its capacity as representative for the United Kingdom pursuant to Article 56(8) of the Agreement to Supplement the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Germany, signed on 3 August 1959, as amended. By judgment notified on 11 February 2016, the action was dismissed.

14.      Mr Bedi subsequently brought an appeal against that judgment before the Landesarbeitsgericht Hamm (Hamm Higher Labour Court, Germany), seeking at the same time an order for payment of the assistance for the period from April to December 2016, amounting to EUR 3 049.92.

15.      Since it is uncertain whether the decision to cease payment of the assistance to Mr Bedi constitutes discrimination on the ground of disability, prohibited under Directive 2000/78, that court has referred the following question to the Court of Justice:

‘Is Article 2(2) of [Directive 2000/78] to be interpreted as precluding a provision in a collective agreement under which the receipt of bridging assistance — granted, on the basis of the basic remuneration laid down in the collective agreement, with the aim of ensuring a reasonable means of subsistence for workers who have lost their jobs until they are able to secure financial protection through entitlement to a pension under the statutory pension scheme — ends once the worker concerned is entitled to receive an early retirement pension, and the application of which is based on the possibility of receiving an early retirement pension on grounds of disability?’

16.      Written observations have been submitted by the Federal Republic of Germany, both on its own behalf and in its capacity as representative for the United Kingdom, and by the European Commission. No hearing was requested and none has been held.

 Analysis

17.      By its question, the referring court essentially asks whether the termination of payments of the assistance to Mr Bedi by reason of his becoming entitled to early, but discounted, payment of his retirement pension by reason of his disability constitutes unlawful discrimination for the purposes of Directive 2000/78.

18.      In order to answer that question, it is necessary to consider, first, the scope of application of the directive and, second, whether the discrimination — if any — to which Mr Bedi was subject constituted direct or indirect discrimination. Third, and should the discrimination concerned amount to indirect discrimination, the derogations laid down in Article 2(2)(b) of the directive will then become relevant.

19.      I shall consider each of these issues in turn.

 The scope of application of Directive 2000/78: does the assistance represent ‘pay’?

20.      Article 3 of Directive 2000/78 (entitled ‘Scope’) is widely drawn. Paragraph 1 provides that the directive is to apply ‘to all persons, as regards both the public and private sectors, including public bodies’, in relation to, inter alia, ‘employment and working conditions, including dismissals and pay’. However, an important restriction is imposed by paragraph 3, by virtue of which the directive is not to apply to ‘payments of any kind made by state schemes or similar, including state social security or social protection schemes’.

21.      Some guidance as to how to interpret that restriction is provided by recital 13 of the directive, according to which a social security or social protection scheme is one whose benefits are not treated as income for the purposes of what is now Article 157 TFEU. The Court has confirmed that interpretation in its case-law. (5)

22.      The question arises whether the assistance paid to Mr Bedi under Paragraph 4 of the collective agreement falls under the restriction set out in Article 3(3) of the directive.

23.      I do not believe that it does.

24.      The Court has held that, in construing Article 157 TFEU, the concept of ‘pay’ must be interpreted broadly. It covers, in particular, ‘any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his or her employment from his or her employer, and irrespective of whether it is received under a contract of employment, by virtue of legislative provisions or on a voluntary basis’. (6) The fact that certain benefits are paid after the termination of the employment relationship does not prevent them from being ‘pay’ within the meaning of Article 157 TFEU. (7) Equally, the fact that such benefits are in the nature of pay cannot be called in question merely because they can also be regarded as reflecting considerations of social policy. (8) Thus, the Court has ruled that benefits granted under a pension scheme which essentially relates to the employment of the person concerned form part of the pay received by that person and come within the scope of Article 157(2) TFEU. (9)

25.      As described in the order for reference, the assistance permits older workers who have been employed on a long-term basis and declared redundant to benefit from financial support following the end of the employment relationship. Its aim is to ensure their livelihood and compensate for the difficulties arising from the fact that they may receive a lower rate of pay in their new post or may be unemployed. At the same time, it seeks to encourage workers to remain active by finding new positions outwith the armed forces sector.

26.      It follows in my view that the assistance satisfies the test for what the Court has described as constituting ‘the material element of pay’ (10) in the case-law set out in point 24 above. However, as the Commission rightly observes, it is also necessary to determine whether the assistance at issue was granted to the worker concerned by reason of his employment relationship. There must, in other words, be a causal link between the two in order for a benefit to come within the scope of Article 157 TFEU. (11) In that regard, the Court has held that considerations of social policy, of State organisation, of ethics, or even the budgetary concerns which influenced or may have influenced the establishment of a scheme cannot operate to remove a scheme from the ambit of Article 157 TFEU if the arrangements in question concern only a particular category of workers, if they are directly related to the period of service completed and if their amount is calculated by reference to the last salary paid to the (former) employee. (12)

27.      The two cases cited in the preceding point concerned, respectively, the entitlement to reimbursement of medical expenses for the civil partners of federal public servants (13) and to a widower’s pension under a compulsory occupational benefit scheme. (14) But the case-law is not limited to those examples. The Court has, for example, applied those principles to a bridging assistance payable to workers having reached a certain age at the time of their dismissal, where it held that the fact that the amount of the assistance was to be based on the final gross monthly salary confirmed that the assistance constituted a benefit granted in connection with the employment relationship with the workers concerned. (15)

28.      I see no reason not to apply those principles in this case as well. The assistance is payable under the collective agreement in respect of the employment relationship entered into between persons such as Mr Bedi and armed forces stationed on German territory. That agreement provides for arrangements, in the form of the assistance, which expressly contemplate the termination of that relationship. The amount payable under the assistance is (by virtue of Paragraph 4 of the collective agreement) to be calculated by reference to the remuneration payable on termination of the employment relationship. The order for reference states that the assistance is payable only to ‘long-term’ employees. It therefore seems clear that the requirement that sums be directly related to the period of service completed is also satisfied. The fact that the assistance is paid by Germany and funded out of national tax revenue has, as the Commission in my view rightly observes, no bearing on the issue since it appears that Germany’s involvement in that regard forms part of the internal arrangements in place between it and the States whose soldiers were previously stationed on its territory. That includes the United Kingdom, in its capacity as Mr Bedi’s former employer. What is determinative is whether or not the latter Member State, as the original employer of the recipient, put arrangements into place to ensure that sums are paid to its former employees ‘in respect of their employment’.

29.      For all of the foregoing reasons, I consider that sums payable under the assistance may be categorised as ‘pay’ for the purposes of Article 157 TFEU and that the exception laid down in Article 3(3) of Directive 2000/78 does not apply in this case.

 The nature of the alleged discrimination

30.      Article 2(2)(a) of Directive 2000/78 provides that there will be direct discrimination where one person is treated less favourably than another in a comparable situation on any of the grounds listed in Article 1. These include disability.

31.      In construing that provision, a measure which applies in the same way to disabled and non-disabled persons cannot be regarded as establishing a difference in treatment based directly on disability. (16) In the present case there is nothing to suggest that the collective agreement applies in a different manner to disabled workers and those who are not disabled. Indeed, the order for reference makes it clear that the restrictions resulting from Paragraph 8 of the collective agreement apply to several categories of worker, of whom those who are disabled are only one set.

32.      That being so, the treatment of workers such as Mr Bedi cannot be said to amount to direct discrimination. It follows that it is necessary to consider whether it constitutes indirect discrimination. According to the test laid down in Article 2(2)(b) of Directive 2000/78, indirect discrimination shall be taken to occur when an apparently neutral provision, criterion or practice would put persons having, inter alia, a disability at a particular disadvantage compared with other persons.

33.      I have already indicated that the measure in question is apparently neutral. (17) As regards, next, the question whether it puts disabled people at a disadvantage, the result of Mr Bedi becoming entitled to an early, but reduced, retirement pension was that payment of the assistance ceased. In the case of non-disabled workers, there would be no such automatic entitlement to an early pension. The assistance would thus continue to be paid until the person concerned reached the standard retirement age of 63, when that pension would be payable in full. The order for reference makes it clear that the net financial outturn for the latter category is better than that applying to Mr Bedi and goes on to observe that his position was, by comparison, substantially worse as a result. (18) Nor did he have any choice in the matter: the assistance would cease even if he had elected not to draw his retirement pension prior to the normal retirement date. That being the case, I consider that the measure does indeed put disabled workers such as Mr Bedi at a disadvantage.

34.      With respect, lastly, to the question whether the situation of those workers is comparable to that of non-disabled persons, Germany (in its observations submitted on its own behalf) argues that that element is lacking. It submits, in essence, that the relevant assessment may be carried out at two points in time. The first is the date on which the working relationship comes to an end. At that point, both disabled and non-disabled workers are, it accepts, in a comparable situation. The second is the date on which the person concerned becomes entitled to draw a pension. There, Germany argues, the two groups cannot be treated as being in the same position, since their need for the transitional assistance will differ — those who are disabled will no longer require one, whilst their non-disabled counterparts will still be in need of it.

35.      In support of the second of these interpretations, Germany refers to the Court’s case-law. It cites in particular (i) Burton, (19) where the subject matter of the case was a voluntary redundancy scheme under which male employees became entitled to payments at a later date than their female counterparts, because the normal pensionable age for the latter was earlier than for the former, but with the amount payable to each category being calculated on an identical basis; (ii) Roberts, (20) which involved a bridging pension payable to employees taking early retirement on grounds of ill health with payments to women being made at a lower rate than to men after the age of 60 in order to reflect the fact of their becoming entitled to draw a state pension from that age, but with the mechanism for calculating the bridging pension being neutral; and (iii) Hlozek, (21) in which the dispute concerned bridging assistance paid to workers having reached a certain age at the time of their dismissal as part of the employing undertaking’s restructuring, with women having a right to the assistance five years earlier than men since their statutory age of retirement was five years before that which applied to their male colleagues.

36.      I draw little inspiration from that case-law. The focus of the Court’s reasoning in those judgments was not on the point at which the alleged discrimination might have cut in. Rather, it considered the schemes in overview, in order to conclude in each case that there was no discrimination. It did so in Burton by recognising that the only difference between the benefits for men and women stemmed from the fact that the minimum pensionable age under the applicable national legislation was not the same for men as for women. The assistance at issue, however, was calculated in the same manner regardless of the sex of the worker. From that, it followed that there was no discrimination. (22) The point is made even more clearly in Roberts, where the Court held that the mechanism for calculating the bridging pension was neutral, which in its words ‘confirm[ed] the absence of any discrimination’. (23) In Hlozek, it adopted similar reasoning. (24)

37.      The whole point in this case is, it seems to me, that the scheme at issue in the main proceedings is not neutral.

38.      Indeed, Germany appears to accept that there may be other relevant aspects to the Court’s case-law. It refers in that regard to Odar, (25) which involved compensation on termination of employment paid to a severely disabled worker under a social plan pursuant to which he received a smaller sum than he would have been entitled to had he been non-disabled. There was no question of the outturns under the scheme concerned being neutral as between the two categories of workers. The Court considered the position by reference to ‘workers in age brackets approaching retirement’ and held that they were in a comparable situation to other workers concerned by the social plan, since their employment relationship with their employer ended for the same reason and in the same circumstances. The ‘advantage’ granted to severely disabled workers consisting in their entitlement to claim a retirement pension three years earlier than non-disabled workers did not place them in a different situation in relation to those workers. (26)

39.      It seems to me that that case-law is considerably more relevant to the present case than the judgments discussed in points 35 and 36 above. The question remains, however, whether it is precisely transposable. In particular, is the circumstance that (i) in Odar the facts involved the calculation of a lump sum payment which was reduced, in the case of severely disabled workers, to take account of their earlier entitlement to a retirement pension whereas (ii) in this case the benefits comprised continuous payments under the collective agreement which were terminated on the right to early payment of a retirement pension becoming available sufficient to distinguish the two situations?

40.      I do not believe that that is so.

41.      In both cases, the applicant was faced with an effective reduction in the payment made to him by reason of the termination of his employment to take account of his earlier entitlement to payment of a retirement pension. In Odar, that reduction was made at the stage when the lump sum was calculated whereas, in Mr Bedi’s case, it arose on the termination of payments under the collective agreement. The net result was the same: each recipient received less money because he was disabled. The objective of each of the schemes was to benefit workers of a certain age facing redundancy on operational grounds. The fact that the assistance in the present case was paid on a continuing basis with a view to encouraging the workers concerned to remain on the employment market does not in my view represent a difference which is sufficiently material to distinguish the two situations.

42.      I therefore take the view that the background to the two cases, in so far as relevant to these proceedings, is essentially similar and that the principles to be drawn from Odar can be applied to Mr Bedi’s situation. In Odar, the Court held that disabled workers approaching retirement were in a situation comparable to that of other workers concerned by the arrangements for payment of the lump sum, since their employment relationship with their employer ended for the same reason and in the same circumstances. (27) There is in my view little difficulty in extending that reasoning by analogy to the present case.

 Indirect discrimination: the derogations set out in Article 2(2)(b) of Directive 2000/78

43.      That being so, the next issues to be addressed are whether the measure in question can be treated as being objectively justified by a legitimate aim and whether the means of achieving that aim are appropriate and necessary for the purposes of Article 2(2)(b)(i) of Directive 2000/78.

44.      Germany (both in its observations submitted on its own behalf and in those submitted as representative for the United Kingdom) argues that there is indeed a legitimate objective for the measure. In so far as relevant, (28) it notes in particular the fact that the assistance is paid out of State funds and that these by definition are limited. There is no good reason to continue paying the assistance when the recipient is provided with the means of subsistence via another route. It notes that the Court has held that the proper management of State resources may constitute a legitimate objective in such circumstances.

45.      I take no issue with those submissions. It is indeed the case that public money should be spent wisely. (29) I accordingly agree that that objective is a legitimate one.

46.      Can it also be said that it is appropriate and necessary?

47.      As regards the first of these tests, Germany (both in its own capacity and as representative for the United Kingdom) notes in particular that the objective of the agreement is to provide a satisfactory income for workers when they might otherwise be in financial need, an objective ‘which can, in the case of disabled workers, be said to disappear’ when they become entitled to early payment of their retirement pension. It considers such a consideration to be appropriate.

48.      I am not persuaded beyond doubt by Germany’s line of reasoning here. In particular, its approach is based on the premiss that the objective of benefiting workers in financial need can be said to disappear when the recipient of the benefit in question becomes entitled to a pension. That presupposes that the pension will be of a sufficiently high value to compensate for that financial need. Whilst the level of state retirement pensions may vary from one Member State to another, it cannot be assumed that, even when payable at the full rate, those pensions will in all cases be sufficient for the recipient to live on in any degree of comfort. When the amount in question is reduced to take account of early payment, it will be even more likely that the sum received will not represent a satisfactory income. In that case, it cannot be said that the recipient’s financial need ‘can be said to disappear’. I therefore conclude that the objective of providing a satisfactory income for workers in circumstances such as those of Mr Bedi can be said to disappear — and hence that the measure can be said to be appropriate — only when the difference between the amount of the pension they are entitled to and that of the assistance that is discontinued is not such that those workers will return, or risk returning, to the situation of financial need that the assistance was intended to provide against. Whether or not that is the case will be a matter which it is for the national court to verify.

49.      With respect to the test of necessity, the same Member State places great emphasis on the degree of discretion which the Court has recognised as being afforded to the Member States in defining measures to implement a particular aim in the field of social and employment policy. That is, in its view, a fortiori the case where the measure in question was decided upon between the social partners in a collective agreement. It notes that the Court has accepted that those partners have a ‘broad discretion’ in that context (30) and draws what it perceives to be a fundamental distinction between that situation and the social plan which was at issue in Odar. National law allows a considerably smaller degree of latitude in the latter case, since the parties to the plan are under an obligation to take circumstances applying after the end of the working relationship into account.

50.      I accept that the Court should be slow to interfere with decisions taken by the social partners in drawing up agreements such as the one at issue in the main proceedings. (31) But the degree of leeway which that presupposes does not remove the need to respect the principle that measures must be both appropriate and necessary. In that regard, I note, first, that the Court held in Hennigs and Mai,when consideringthe degree of discretion afforded to the social partners in the context of collective agreements, that ‘the difference of treatment on grounds of age must be appropriate and necessary for achieving that aim’. (32) Second, I would observe that Article 16(b) of Directive 2000/78 requires Member States to ensure that any provisions contrary to the principle of equal treatment included in, inter alia, collective agreements should, or may, be declared null and void or are amended.

51.      In deciding that issue, it is in my view paramount to keep in mind the situation of severely disabled workers such as Mr Bedi, and, in particular, the specific difficulties and risks which they face. The whole purpose of Directive 2000/78 in its application to workers with a disability is, after all, to prevent those workers being discriminated against and thus to improve their position in the job market. That includes ensuring that they are given the fullest possible opportunities in that market and they are not financially disadvantaged. Those workers, moreover, are likely to face greater difficulties in finding employment than their non-disabled counterparts and those difficulties will tend to become exacerbated as they approach retirement age. (33) It is important to recall that the right to work was recognised by the Court as long ago as 1974, when it delivered its judgment in Nold v Commission, (34) and is now enshrined in Article 15 of the Charter of Fundamental Rights of the European Union. (35)

52.      It is also important to note that the assistance paid to persons such as Mr Bedi terminates automatically upon their becoming entitled to receive early payment of a retirement pension even though they may not wish to draw the pension at that time. They may, for example wish to remain in employment and defer taking the pension until the normal retirement age when they would receive it in full.

53.      Indeed, that point seems to me to lie at the nub of the difficulties that the disputed national arrangements in this case are faced with. There may no doubt be all sorts of perfectly commendable reasons why disabled persons such as Mr Bedi should be entitled to early payment of their retirement pension, albeit at a reduced rate, should they wish to take advantage of that benefit. They may, as Germany points out, find themselves in a position where they have less chance of finding employment and be grateful for the financial support offered to them. But those arrangements present those workers with no real choice should they wish to continue working and have the opportunity to do so.

54.      Rather, as soon as the disabled worker reaches the age at which he would be entitled to draw a reduced-rate early pension, the allowance is cut off. If he stays in work, he will suffer because he has lost the allowance. If he decides to draw the pension, he will still be likely to lose — unless, that is, the amount of the pension is greater than that of his wages in employment together with the allowance, a result which seems unlikely in practice. What is not available to him is the third option, whereunder he can elect not to draw the early retirement pension but decide to stay in work and receive the allowance. Yet that third option is precisely what his non-disabled counterpart automatically receives.

55.      Seen from that perspective, the impact of the scheme, as set up under the collective agreement, has in my view what the Court termed in Odar ‘an excessive adverse effect’ on the legitimate interests of disabled workers such as Mr Bedi. (36)

56.      In the light of that conclusion, I should add that I do not believe that Germany’s argument that the impact of any unlawful discrimination is, in essence, a matter to be sorted out at the level of the national pension scheme can prosper. If they are to satisfy the requirements of Directive 2000/78, those responsible for administering and applying the collective agreement must do so in a way that does not constitute unlawful discrimination. The obvious first step in a case such as this will be to request additional funding in order to eliminate the problem. Given that there may by now be relatively few people in Mr Bedi’s position, it may very well be the case that the necessary money will be forthcoming. Should that not be the case, or should there be funds only to cover part of the shortfall, the alternative — though obviously less satisfactory — solution would be to re-allocate benefits under the agreement so that the scheme as a whole is compliant.

57.      It follows in my view that the national rules at issue cannot be said to satisfy the test of necessity and, accordingly, that they fail to satisfy the test laid down in Article 2(2)(b)(i) of Directive 2000/78.

58.      It is not suggested that the additional derogation set out in Article 2(2)(b)(ii) of the directive, applying only to disabled persons and not to the other categories of persons who the directive seeks to protect, is relevant in the present case and I do not therefore consider it further.

59.      I thus conclude that Article 2(2) of Directive 2000/78 is to be interpreted as precluding a provision in a collective agreement under which the receipt of bridging assistance which is calculated by reference to the basic remuneration laid down in the collective agreement and which seeks to provide a reasonable means of subsistence for workers of long standing who have lost their jobs ends, in respect of disabled workers, once the worker concerned is entitled to receive a discounted early retirement pension where (i) non-disabled members of the workforce may continue to receive the assistance until they acquire the right to draw a retirement pension at the standard retirement age, with that pension being payable in full and (ii) the disabled worker is not offered the choice of continuing to receive the assistance until the standard retirement age, thereby allowing him to continue to participate in the employment market in the same way as his non-disabled counterparts, but must instead incur a significant financial penalty should he wish to remain available for employment until entitled to draw his retirement pension in full.

 Conclusion

60.      For all of the foregoing reasons, I suggest that the Court should answer the question referred by the Landesarbeitsgericht Hamm (Hamm Higher Labour Court, Germany) as follows:

Article 2(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation is to be interpreted as precluding a provision in a collective agreement under which the receipt of bridging assistance which is calculated by reference to the basic remuneration laid down in the collective agreement and which seeks to provide a reasonable means of subsistence for workers of long standing who have lost their jobs ends, in respect of disabled workers, once the worker concerned is entitled to receive a discounted early retirement pension, where (i) non-disabled members of the workforce may continue to receive the bridging assistance until they acquire the right to draw a retirement pension at the standard retirement age, with that pension being payable in full, (ii) the disabled worker is not offered the choice of continuing to receive that assistance until the standard retirement age, thereby allowing him to continue to participate in the employment market in the same way as his non-disabled counterparts, but must instead incur a significant financial penalty should he wish to remain available for employment until entitled to draw his retirement pension in full.

1      Original language: English.

2      Directive of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

3      Article 5 of Directive 2000/78 is entitled ‘Reasonable accommodation for disabled persons’. It obliges employers to take appropriate measures to provide reasonable accommodation for persons with disabilities in certain circumstances.

4      The full list comprises the Belgian, Canadian, French, United Kingdom and United States armed forces.

5      See judgment of 6 December 2012, Dittrich and Others, C‑124/11, C‑125/11 and C‑143/11, EU:C:2012:771, paragraph 31 and the case-law cited.

6      See judgment of 6 December 2012, Dittrich and Others, C‑124/11, C‑125/11 and C‑143/11, EU:C:2012:771, paragraph 35 and the case-law cited.

7      See judgment of 1 April 2008, Maruko, C‑267/06, EU:C:2008:179, paragraph 44.

8      See judgment of 2 June 2016, C, C‑122/15, EU:C:2016:391, paragraph 22 and the case-law cited. See also, by analogy and a contrario, judgment of 22 November 2012, Elbal Moreno, C‑385/11, EU:C:2012:746, paragraph 19 et seq., and my Opinion in Espadas Recio, C‑98/15, EU:C:2017:223, point 33 et seq.

9      See judgment of 2 June 2016, C, C‑122/15, EU:C:2016:391, paragraph 23 and the case-law cited.

10      See judgment of 6 December 2012, Dittrich and Others, C‑124/11, C‑125/11 and C‑143/11, EU:C:2012:771, paragraph 35.

11      See judgment of 6 December 2012, Dittrich and Others, C‑124/11, C‑125/11 and C‑143/11, EU:C:2012:771, paragraphs 37 and the case-law cited, and 39.

12      See, to that effect, judgment of 1 April 2008, Maruko, C‑267/06, EU:C:2008:179, paragraph 48.

13      In the case of Dittrich and Others.

14      In the case of Maruko.

15      See judgment of 9 December 2004, Hlozek, C‑19/02, EU:C:2004:779, paragraph 38.

16      Judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 72.

17      See point 31 above.

18      See point 11 above.

19      Judgment of 16 February 1982, 19/81, EU:C:1982:58.

20      Judgment of 9 November 1993, C‑132/92, EU:C:1993:868.

21      Judgment of 9 December 2004, C‑19/02, EU:C:2004:779.

22      See, to that effect, paragraphs 15 and 16 of the judgment of 16 February 1982, 19/81, EU:C:1982:58.

23      See paragraph 23 of the judgment of 9 November 1993, C-132/92, EU:C:1993:868.

24      See paragraph 49 of the judgment of 9 December 2004, C-19/02, EU:C:2004:779.

25      Judgment of 6 December 2012, C‑152/11, EU:C:2012:772.

26      See paragraphs 61 and 62 of the judgment.

27      See paragraph 61 of the judgment.

28      Germany puts forward two additional grounds by reference to paragraphs 29 and 44 of the judgment of 12 October 2010, Ingeniørforeningen i Danmark, C‑499/08, EU:C:2010:600. Those paragraphs address legitimate objectives held by the Court to be valid for the purposes of Article 6 of Directive 2000/78, which sets out certain discrete provisions dealing with differences of treatment on the basis of age. This case is not concerned with discrimination on that basis. For that reason, I do not consider those additional grounds further.

29      See, inter alia, judgment of 6 December 2012, Odar,C‑152/11, EU:C:2012:772, paragraph 43.

30      Germany cites in that regard judgments of 6 December 2012, Odar,C‑152/11, EU:C:2012:772, paragraph 47 and the case-law cited, and of 8 September 2011, Hennigs and Mai, C‑297/10 and C‑298/10, EU:C:2011:560, paragraph 65 and the case-law cited.

31      See, to that effect, judgment of 31 May 1995, Royal Copenhagen, C‑400/93, EU:C:1995:155, paragraph 46.

32      Judgment of 8 September 2011, C‑297/10 and C‑298/10, EU:C:2011:560, paragraph 65.

33      See, to that effect, judgment of 6 December 2012, Odar,C‑152/11, EU:C:2012:772, paragraph 67.

34      Judgment of 14 May 1974, 4/73, EU:C:1974:51, paragraphs 12 to 14.

35      OJ 2010 C 83, p. 389.

36      See judgment of 6 December 2012, C‑152/11, EU:C:2012:772, paragraph 70.

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