Age discrimination is not in fashion: AG Bobek’s Opinion in Abercrombie & Fitch v Bordonaro

Dr Jule Mulder, University of Bristol

The Facts

The case is concerned with the conformity of Italian law on on-call contracts with the EU principle of non-discrimination on grounds of age. Antonino Bordonaro was employed under an on-call contract (similar to a zero-hour contract) by Abercrombie & Fitch Italia Srl on a permanent basis. Upon his 25th birthday Mr Bordonaro was dismissed due to the fact that he no longer complied with the conditions for the intermittent contract, as laid down by Article 34(2) Legislative Decree No 276/2003 applicable at the time he was hired. The (now repealed) Italian law in question provided special arrangements regarding access to and dismissal from on-call contracts for some workers. While on-call contracts under Italian law are usually subject to objective reasons and certain conditions, the provision allowed for such contract to be offered ‘in any event’ to workers under the age of 25 or above the age of 45. At the time of Mr Bordonaro’s dismissal, Article 34(2) had been modified. The older age bracket was lifted from 45 to 55 years of age. Moreover it was specified that an on-call contract can ‘in any event’ be concluded ‘with a person under 24 years of age, on the understanding […] that the contractual service must be performed before the age of 25 is reached’. The modified provision thus allowed automatic termination of permanent on-call contracts with younger workers once they reached the age of 25, in addition to allowing more flexibility regarding younger and older workers’ exposure to on-call contracts. Unsurprisingly, the Supreme Court of Cassation (Corte Suprema di Cassazione) identified the direct and clear reference to age in Article 34 as potentially problematic and asked the Court of Justice of the European Union (CJEU) to rule on its compatibility with the principle of non-discrimination on grounds of age in Directive 2000/78 and Article 21 of the EU Charter.

The Legal Analysis

Advocate General (AG) Bobek delivered his Opinion on 23 March 2017. In his preliminary observations, he raises interesting questions regarding first, the relationship between Directive 2000/78 and Article 21 EU Charter, and second, in relation to the Charter’s function as an interpretive tool within the context of private law. The question whether the national legislation, the contract and the dismissal of Mr Bordonaro constitute age discrimination is however only discussed with reference to Directive 2000/78. This case comment will focus on the latter, namely the potential direct age discrimination and its justification.

Under Article 2(2)(a) Directive 2000/78 direct age discrimination occurs where one person is treated less favourably than another is, has been or would be treated in a comparable situation because of their age. Regarding the comparability of situations, AG Bobek emphasises that comparable does not mean identical. It rather requires an examination of whether ‘in relation to a given quality (that is, tertium comparationis, which may be a value, aim, action, situation, and so on), the elements of comparison (such as persons, undertakings, products) demonstrate more similarities or more differences’ (para. 40). Such comparison needs to be carried out considering the broader context and in the light of the subject matter and purpose of the act. As Directive 2000/78 focuses on employment and occupation, he then assesses whether workers in different age groups are in a comparable situation in terms of access to employment and dismissal. In particular, he emphasises that ‘the comparability of such different groups of persons would only be precluded if there were an element, such as a personal feature or a factual or legal circumstance, which makes the situations so different that the comparison becomes illogical or unreasonable’ (para. 45). He also rejects that structural and high youth unemployment means that younger workers are in a different situation because their comparability is only assessed considering a ‘number of factors that are relevant for the given quality’ (para. 47). Since all age groups are competent to do the job and apply for the same positions, there is no reason why they should not be offered the same working conditions.

To assess the (un)favourability of the treatment, AG Bobek then refers to the need to conduct a global assessment ‘balancing different elements of the contractual relationship, conditions and considerations’ (para. 64) including the impact of the contract in terms of pay and annual leave as well as access to the employment market. With reference to Mangold (C-144/04, EU:C:2005:709) and Georgiev (C‑250/09, EU:C:2010:699), he considers that the case law indicates that the ‘less favourable character is ascertained through a global assessment of the conditions emanating from the contractual regimes applicable to specific age categories, taking as a point of reference the ordinary employment relations’ (para 66). In these cases the CJEU identified a less favourable treatment because less stable (e.g. fixed-term) contractual relationships with older workers were authorised with no restrictions.

AG Bobek then points at a number of issues that will have to be considered. First, the on-call contracts allow maximum flexibility for the employer while the worker does not have an agreed working time or guaranteed income. Younger and older workers are exposed to this flexibility without the presence of objective reasons justifying the contractual arrangement as required for workers in the intermediate age group. Secondly, while the availability of on-call contracts may offer broader access to the job market, the existence of such contracts without imposing any additional requirements may also make it more difficult for these workers to find regular employment. Finally, the legislative history – the increased upper age limit from 45 to 55 years – and the general character of the provision as a derogation of the general rule indicate that access to these contracts is not always seen as favourable. All of these factors are to be taken into account when the national court makes its global assessment. The assessment should thus neither focus on specific rules alone nor should some negative or positive elements be considered in isolation.

Finally, AG Bobek assesses any possible justification under Article 6(1) Directive 2000/78. The primary aims of Article 34(2) identified by the Italian Government were (1) the flexibilization of the labour market to increase employment, (2) helping young people to access the labour market, and (3) ensuring that young people have opportunities to gain work experience, albeit not in stable employment. All of these aims fall within the remit of Article 6(1)(a) on employment policies, labour market and vocational training. AG Bobek then continues to assess the possible appropriateness and necessity of the measures considering each of the aims. Throughout the analysis, he particularly raises questions regarding the consistency of the measure. For example, the provision only increases flexibility for old and young workers and not for all workers, the provision on automatic termination may cancel out the advantage of labour market access facilitated by the creation of on-call contracts, and the personal scope is not limited to those young workers who require additional experience, education or apprenticeship. The need to consider less intrusive alternative measures is also highlighted.

In conclusion, AG Bobek suggests that the Italian law is only compatible with Article 2(2)(a) and 6(1) Directive 2000/78 if the national court determines that it can be justified under and pursues a legitimate aim linked to employment and labour market policy, and achieves that aim by means which are both appropriate and necessary.

Comment

This is the first time the CJEU will have to address a national provision which provides special rules enabling younger workers to access employment. However, there have been a number of cases which discussed similar provisions providing special arrangements for older workers (e.g. Mangold and Georgiev). The assessment of the question as well as the conclusion are therefore not at all surprising. There is most likely unfavourable treatment that can possibly be justified, but the final assessment is left to the national court. As such, it is questionable how helpful the answer will be for the national court, although the discussion does provide some guidelines and indications. Nevertheless the Opinion is an interesting read.

Overall, the Opinion provides a very technical account and clearly attempts to distinguish between the assessment of the comparability, the unfavourable treatment and the objective justification. In often rather technical language, AG Bobek tries to provide general abstract criteria which can be used to assess these concepts in any given case. His assessment of comparability is evidence of that. He challenges us to identify both the given quality or ‘tertium comparationis’ (e.g. the aim or situation in question) and the elements of comparison. Under this approach, differences which are not relevant considering the tertium comparationies are excluded from the assessment. The CJEU has underlined this in the past by holding that the ‘the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned’ (C‑267/12 Hay EU:C:2013:823 para. 33 with further references). In Hay, this meant that differences between marriage and the French civil solidarity pact in terms of rights and obligations did not matter concerning matrimonial benefits that aimed at providing additional days of annual leave and pay to support the ceremony. Similarly, in Abercrombie younger and older workers are in the same situation once they apply for work, are competent to do the work, and are offered employment contracts. High youth unemployment rates do not change this, given that older applicants are also looking for work and/or are unemployed. There is thus no relevant difference between the two age groups. Such technical assessment of the concepts considering the requirements which need to be present in an abstract manner can help develop consistent interpretation and application of the comparability test in all cases of discrimination. AG Bobek certainly seems to suggest the test is the same across all types of non-discrimination cases, whether we are concerned with persons under the scope of Directive 2000/78, the other directives prohibiting discrimination based on personal characteristics (such as the Race Directive 2000/43), or with products or undertakings covered under the scope of free-movement case law.

However, the assessment of favourable treatment and the justification becomes more muddled. This is particularly obvious in para. 68 when AG Bobek assesses the positive and negative impact of the Article 34(2) on employment opportunities for young people. This was a major point of dispute in the national proceedings. The employer and Italian Government had argued that the special provision for younger workers benefited them, because they are granted ‘a privileged contractual status’ (para 56) which is not available to workers in the intermediate age bracket. The automatic dismissal at the age of 25 can then be viewed as withdrawing a benefit rather than imposing a disadvantage. AG Bobek entertains this argument, but ultimately stresses that the national court needs to assess all the impacts of the rule including that the additional contractual status will make it more difficult to access regular employment.

This does not clearly distinguish the identification of less favourable treatment under Article 2(2)(a) Directive 2000/78, from the proportionality analysis under Article 6(1) namely the appropriateness or suitability of the measure to obtain the legitimate aim. After all, it will only ever be possible to assess the potential positive impact of the measure in general terms considering the whole younger population, while the negative impact – i.e. being exposed to non-favourable working conditions- is individual. That is because regular employment is in principle still available to younger workers.

Related to this, the case raises the difficult question of which employment policies aimed at reducing youth unemployment rates are in line with the Equality directives. After all, even if the policy had a positive effect on youth unemployment rates, it seems difficult to justify the exclusion of older (but not old enough) unemployed workers who could equally benefit from the more flexible labour market. Equally, not all young workers are necessarily vulnerable. Directive 2000/78 challenges policies that target age groups without considering individual circumstances and thus resists the stereotypical assumptions about workers in specific age groups. It thus seems more prudent to tackle structural disadvantages within the employment market under the scope of positive actions rather than by means of the Article 6(1) justification.

Regarding the latter, a strict test of justification is employed even if ‘Member States enjoy broad discretion in their choices to pursue a particular aim in the field of social and employment policy, as well as in the configuration of the measures capable of achieving it’ (para. 86). The proportionality test challenges the national courts to make evidence-based decisions on the appropriateness and necessity of the measure by reference to statistical evidence and the broader legal context. While such a strict test or ‘high standard of proof’ (para. 75) should be applauded, there is a risk that the statistical or otherwise relevant evidence is not available at all. Similar developments can be witnessed in cases on free movement of goods (see e.g. Commission v Poland, C-639/11, EU:C:2014:173; Deutsche Parkinson Vereinigung, C-148/15, EU:C:2016:776).

Despite these shortcomings in terms of clarity and precision, it should be hoped that the CJEU follows AG Bobek’s Opinion in its outcome. This could challenge Italy and other Member States to identify the real structural reasons for widespread youth (and other) unemployment rather than withdraw further labour law protection from certain age groups based on stereotypical assumptions about their vulnerability and unsubstantiated speculation that the liberalisation of the labour market for some age groups increases their employment.


Dr Jule Mulder is Lecturer in Law at the University of Bristol Law School and Co Editor-in-Chief of the German Law Journal. Her research falls within the area of European, International and Comparative equality law. She is that author of the monograph entitled EU Non-Discrimination law in the Courts: Approaches to Sex and Sexuality Discrimination in EU law published with Hart Publishing in 2017.

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