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 The (now repealed) Italian law in question provided special arrangements regarding access to and dismissal from on-call contracts for some workers.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. Continue reading