4.2.8.2 Dutch courts and substantive compatibility reviews: case law on Directive 2000/78

199. The WGBL seems to keep up with Directive 2000/78. The compatibility of the implementation measures with the general principle of non-discrimination on the account of age thus seems to be unquestionable. There is a small number of court decisions in which Dutch courts – both civil and administrative courts and in all instances – refer to Mangold and Kücükdeveci and carry out a substantive compatibility review of diverse legislative provisions.1 Four cases falling within the scope of Directive 2000/78 are briefly discussed below.

200. In 2013 there was a case between private parties in which the compatibility of a temporarily effective legislative provision adopted by the Dutch legislature was reviewed against the principle of non-discrimination on the basis of age.2 It concerns the Wet Tijdelijke Verruiming Ketenregeling (Wet TVK), which discriminated on the basis of age. This Act concerned the temporarily accepted increase of the number of continuous fixed-term contracts for employees of upto 27 years old. Usually, the number of continuous fixed-term contracts is three, whereas this act, which was in effect from July 2010 until 1 January 2012 – allowed a maximum of four continuous fixed-term contracts in a period of four years. The Rechtbank Amsterdam – a court in first instance – reiterates the Court of Justice’s core statements in Mangold and Kücükdeveci and holds that the Dutch act at stake is, especially because it was temporarily effective only, makes a proportionate distinction on account of age.3 The temporarily effective legislative act does therefore not constitute an infringement and is therefore applicable to the case.4 As a consequence, the validity and the legal consequences of the employment contract at issue, which were based upon the temporarily effective Dutch act were confirmed.5 Interestingly, the Rechtbank mentions Directive 2000/78 only once in order to clarify that it concretises the general principle; besides this one reference it focuses on the general principle prohibiting age discrimination.6

201. In 2011, in a case concerning a civil servant7, the Administrative Law Chamber of the Rechtbank Groningen reviewed the compatibility of a Dutch regulation8 primarily with Directive 2000/78, which has direct vertical effect. In addition, the district court reviews the regulation’s compatibility with the WGBL.9 The Rechtbank Groningen arrives at the conclusion that the regulation is not in conflict with the Directive or with its Dutch implementation measure.

202. Further, in 2010 the Centrale Raad van Beroep (the Dutch Administrative High Court) reviewed a provision of the Course of Conduct (Gedragslijn) for civil servants against Directive 2000/78.10 The clause in the Course of Conduct concerned the possibility of civil servants to prolong their employment contract after they turned 65 years of age. However, this possibility was open only to civil servants who turned 65 after 11 May 2007. The civil servant in issue turned 65 before 11 May 2007 and questioned the validity of the clause in the Course of Conduct. In his opinion it constituted unlawful discrimination. The Centrale Raad van Beroep reiterates the case law of the Court of Justice and then reviews the compatibility of the provision at stake with the principle of non-discrimination on the basis of age in conjunction with Directive 2000/78.11 The provision was deemed to be in conflict with Directive 2000/78 and was therefore disapplied.12 As a consequence, the opportunity to prolong employment is also open to the civil servant at issue, who turned 65 before 11 May 2007.

203. In 2015 the Hoge Raad’s chamber on tax law referred preliminary questions to the Court of Justice.13 The questions concern the compatibility of a provision on personal tax deductions for study costs – reducing the taxable income – which applies only to persons upto 30 years of age. The Court of Justice held that the tax provisions fall within the scope of Directive 2000/78 and that the particular Dutch taxation scheme is compatible with Union law insofar as the taxation scheme is objectively and reasonably justified by a legitimate objective relating to employment and labour market policy, and the means of attaining that objective are appropriate and necessary, which is for the national court to determine.14

204. Lastly, in 2017 the Gerechtshof ’s-Hertogenbosch dealt with a case between an employee and an employer, in which the employee claimed to be entitled, on the basis of Article 7:673BW, to a severance pay.15 Like in Dansk Industri, the employer had reached the age at which he was entitled to an old-age pension. Article 7:673(7)(b) BW excludes persons who are entitled to an old-age pension from the entitlement to a severance pay. The employee argues that this provision is incompatible with the principle prohibiting age discrimination and should therefore be set aside. The Gerechtshof agrees that the provision distinguishes on account of age16, but it is unsure whether this distinction has a legitimate aim and whether the distinction is appropriate and necessary to achieve that particular aim – in other words: whether or not it constitutes a prohibited distinction.17 Referring to Kücükdeveci, the Gerechtshof draws the preliminary conclusion that in case Article 7:673(7)(b) BW is incompatible with Directive 2000/78 and the principle prohibiting age discrimination, it should be set aside.18 The Gerechtshof is however not sure whether the provision is incompatible with Union law and decides to refer preliminary questions to the Hoge Raad.19 It phrases the preliminary questions, but before actual reference the Gerechtshof gives the parties to the case the chance to express their views about the proposed questions. Subsequently, parties decided to settle the case and the questions drafted by the Gerechtshof never reached the Hoge Raad. Nonetheless, in a separate yet very similar case, the Rechtbank Midden-Nederland referred preliminary questions to the Hoge Raad concerning the compatibility of Article 7:673 BW with Union law.20 On 20 April 2018, the Hoge Raad carried out the substantive compatibility review of Article 7:673(7)(b) BW against Directive 2000/78 and the principle prohibiting age discrimination and reached the conclusion that the Dutch provision is compatible with Union law, for it is appropriate and necessary to reach its legitimate aim.21