Age-related pension scheme not contrary to the Employment Directive

Case no. BS-9010/2019-HJR
Judgment delivered on 16 April 2020

HK/Danmark acting for the estate left by A
vs.
The Danish Ministry of Finance (Danish Employee and Competence Agency)

Due to incapacity for work, A resigned from her position with Post Danmark A/S at the age of 62. If she had been under 60 years of age at the time of resignation, she would have been entitled to a higher pension in accordance with Section 7(1) of the Danish Civil Servant Pension Act (tjenestemandspensionsloven).

The case concerned the issue of whether the age condition in Section 7(1) constituted discrimination in contravention of the EU Employment Directive.

The Supreme Court found that the provision constitutes discrimination as set out in Article 2(1) and (2)(a) of the Directive, cf. Article 1, but that it is covered by the derogation in Article 6(2) on certain occupational social security schemes. The Supreme Court found that, according to this provision, no proportionality assessment of the relevant scheme is required. The Supreme Court also found that Section 7(1) of the Civil Servant Pension Act does not constitute discrimination on the grounds of sex as set out in Article 6(2), last sentence, of the Directive.

The High Court had reached the same conclusion.