EU: CJEU confirms Broad Scope of Anti-Discrimination Rules

Author: Chris Van Olmen 

The Court of Justice of the European Union has recently judged that the prohibition of discrimination on the basis of age enshrined in Directive 2000/78/EG is also applicable for the elected president of a trade union.

The case corned the internal bylaws of the Danish trade union HK, which stated that only members of this employees’ federation who, on the day of the election of its president, have not yet reached the age of 60 or, in certain cases, 61, may be elected to this office. The former president of the trade union was 63 at the time of the elections in 2011 and therefore was excluded from the candidacy. The Danish Commission for equal treatment decided that this was a discrimination based on age and condemned the trade union. As HK refused to execute this decision, the case was brought before the Danish courts. Consequently, the Østre Landsret (Court of appeal for East Denmark) posed a preliminary question to the CJEU in order to know whether an elected president of a trade union falls under the scope of Directive 2000/78/EG, because this directive protects against discrimination concerning “the conditions for access to employment, self-employment and occupation”.

The Court holds that the ‘conditions of access’ to the post of president of an organisation of workers fall within the scope of the directive. As regards the concept of ‘conditions of access to employment, to self-employed activity and to occupation’ the Directive covers the conditions of access to any kind of professional activity, whatever its nature or characteristics. Those concepts must be understood in a broad sense. This is not limited to traditional “employees”. The political nature of a position has no bearing on whether these conditions fall within the scope of the anti-discrimination directive, since that directive applies to both the private and public sectors. Nor does the branch of activity play any role. Furthermore, the manner in which a person is recruited, for example through an election, has no bearing on the application of this Directive. The fact that this position is protected by the anti-discrimination rules is not hampered by the freedom of association, which includes the rights of trade union members to elect their own officials. The right not to be discriminated against is thus a justifiable restriction of the freedom of association.

Key Action Points for Human Resources and In-house Counsel

• The scope of the anti-discrimination directive for equal treatment in employment and occupation is not limited to traditional employees and can also be applied to elected mandates and functions.
• Anti-discrimination rules can restrict the freedom of association of trade unions.

Source: CJEU 2 June 2022, no. C-587/20, Ligebehandlingsnævnet, representing A / HK Danmark and HK Privat