Case C‑143/16

Abercrombie & Fitch Italia Srl

v

Antonino Bordonaro

(Request for a preliminary ruling from the Corte suprema di cassazione)

(Reference for a preliminary ruling — Social policy — Directive 2000/78/EC — Equal treatment in employment and occupation — Article 2(1) — Article 2(2)(a) — Article 6(1) — Age discrimination — On-call employment contract which may be concluded with persons under 25 years of age — Automatic termination of the employment contract when the worker reaches 25 years of age)

Summary — Judgment of the Court (First Chamber), 19 July 2017

Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of age — National provision authorising an employer to conclude on-call employment contracts with persons under 25 years of age and to dismiss them when they have reached that age — Justified by pursuit of a legitimate objective — Proportionality in the light of the objective pursued — Lawfulness

(Charter of Fundamental Rights of the European Union, Art. 21; Council Directive 2000/78, Arts 2 and 6(1))

Article 21 of the Charter of Fundamental Rights of the European Union and Article 2(1), Article 2(2)(a) and Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding a provision, such as that at issue in the main proceedings, which authorises an employer to conclude an on-call contract with a worker of under 25 years of age, whatever the nature of the services to be provided, and to dismiss that worker as soon as he reaches the age of 25 years, since that provision pursues a legitimate aim of employment and labour market policy and the means laid down for the attainment of that objective are appropriate and necessary.

It must be recalled that, in accordance with point (a) of the second subparagraph of Article 6(1) of Directive 2000/78, differences in treatment may be ‘the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection’.

Furthermore, it is appropriate to bear in mind that encouragement of recruitment undoubtedly constitutes a legitimate aim of Member States’ social or employment policy, in particular when the promotion of access of young people to a profession is involved (judgment of 21 July 2011, Fuchs and Köhler, C‑159/10 and C‑160/10, EU:C:2011:508, paragraph 49 and the case-law cited).

Similarly, the Court has held that the objective of promoting the position of young people on the labour market in order to promote their vocational integration or ensure their protection can be regarded as legitimate for the purposes of Article 6(1) of Directive 2000/78 (judgment of 10 November 2016, de Lange, C‑548/15, EU:C:2016:850, paragraph 27). It has been held that the facilitation of recruitment of younger workers by increasing the flexibility of personnel management constitutes a legitimate aim (see, to that effect, judgment of 19 January 2010, Kücükdeveci, C‑555/07, EU:C:2010:21, paragraphs 35 and 36).

(see paras 36-38, 47, operative part)