Alicja Slowik , 14 juin 2022

In the case HK/Danmark and HK/Privat (C‑587/20) the Court of Justice of the European Union (the CJEU) was called again[1] to clarify the scope of application of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation. It ruled that workers’ organisations are bound by the principle of non-discrimination on grounds of age despite the political nature of the function performed by its employees.

The case concerned the election of a sector convenor of HK/Privat, a Danish organisation of workers. A sector convenor within HK is a political office which shares certain characteristics with ordinary workers (such as a monthly salary or holiday framework). In the case at hand, a person who has occupied this position for several years was precluded form standing for re-election as she reached the age of 63. She had in fact exceeded the age limit of 60 provided for by the statutes of the organisation for standing for election. Considering that she had been discriminated against on grounds of age, the alleged victim filed a complaint against the organisation. The case was examined by the High Court of Eastern Denmark which had doubts on whether the body such as an organisation of workers could be subject to the obligation to respect the principle of non-discrimination enshrined in Directive 2000/78. The directive has a vocation to apply primarily in the employment context. It was not clear whether the instrument could regulate the situation of politically elected representatives in trade unions who cannot be easily qualified as ordinary workers or self-employed persons. The Danish Court decided to stay the proceedings and sought a preliminary ruling. The CJEU had thus to decide whether a politically elected sector convenor of a trade union falls within the scope of Directive 2000/78.

Firstly, the Court confirmed that setting of an age limit for standing for election constitutes a “condition for access” within the meaning of Article 3(1)(a) of Directive 2000/78. This provision specifies that the directive shall apply in relation to “conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion”.

Secondly, the Court underlined that the generic terms “employment”, “self-employment” and “occupation” figuring in Article 3(1)(a) indicate that the scope of the directive is not limited solely to the conditions for accessing posts occupied by workers. It recalled that the scope of the directive cannot be interpreted restrictively. It then rejected the HK’s argument, according to which the directive shall not apply to the conditions of access to the position of sector convenor given the political nature of the post and the fact that the recruitment procedure is based on election. The CJEU pointed out that the recruitment method “has no bearing on the application of [the] directive” and that the protection against discrimination “shall not depend on the nature of the functions performed in a particular employment” (paragraphs 38 and 40).

Finally, the Court addressed the organisation’s argument concerning the potential breach of the freedom of association guaranteed by the Convention No. 87 of the ILO concerning Freedom of Association and Protection of the Right to Organise as well as by Article 12 of the Charter of Fundamental Rights of the EU (the Charter). Both instruments protect in particular the right of organisations of workers to elect freely their representatives. HK argued that the wide interpretation of the scope of directive 2000/78 would undermine the exercise of the right to self-organisation. Being subject to the obligation to respect the principle of non-discrimination, the trade unions would be unable to elect their representatives in full freedom. The Court emphasised that the freedom of association is not absolute and must be reconciled with the prohibition of discrimination in employment and occupation. Relying on Article 52(1) of the Charter, the judges analysed in detail the question of whether the limitations on the freedom of association resulting from the necessity to guarantee equal treatment satisfy all the conditions enumerated in this Article. The restrictions were indeed provided by law and did not infringe the essence of the fundamental right as they were “applied only for the purpose of attaining the objectives of Directive 2000/78” (paragraph 45 of the judgement). They were also considered to be compatible with the principle of proportionality.

After having concluded that the “conditions for access” to the post of sector convenor of trade union fall within the scope of the directive, the Court observed that the standing for election as sector convenor constituted a means of “involvement” in such an organisation. Such an activity is therefore covered by Article 3(1)(d) of the directive specifying that the directive applies in relation to “membership of, and involvement in, an organisation of workers or employers”. An age limit laid down in the statutes of the Danish organisation relating to the eligibility to stand as sector convenor clearly fell into the scope of the directive.

It would be very difficult to disagree with the reasoning and the conclusion reached by the Court. The narrow interpretation of Directive 2000/78 would restrict excessively the scope of application of the principle of equal treatment which has been one of the key driving forces of the European integration. However, as the present case illustrates, the right to equal treatment in employment may easily enter into conflict with other fundamental rights (such as the freedom to conduct a business[2] or the freedom of religion[3]). Striking the right balance between the competing fundamental rights constitutes a particularly sensitive exercise for every judge. In HK/Danmark and HK/Privat the Court carefully addressed the arguments relating to the potential infringement of the freedom of association. Following closely the analysis put forward by Advocate General Richard de la Tour, the Court verified whether all the requirements concerning the limitations on the freedom of association were satisfied. A detailed examination of the conditions enshrined in Article 52 of the Charter is welcome as it provides for an adequate justification to decide that one fundamental right prevails over another.

Alicja Słowik, Striking a balance between the principle of equal treatment and the freedom of association: application of Directive 2000/78 to trade unions, actualité du CEJE n° 15/2022, 14 juin 2022, disponible sur www.ceje.ch