4.2.8.3 Dutch courts and the scrutiny of collective agreements

205. In cases like Mangold and Kücükdeveci national courts are obliged to review legislative provisions against Union law. In a series of cases, amongst which HennigsandMai, Prigge and Rosenbladt, the Court of Justice assessed a clause of a collective agreement against Directive 2000/78 and the objectives pursued by that measure.1 In Prigge the Court of Justice states that “social partners must respect the Directive” where they adopt measures which fall within the scope of the Directive and that “it is clearly apparent from […] the Directive that collective agreements must, the same as legislative, regulatory or administrative provisions, respect the principle implemented by the Directive”.2 In a number of cases Dutch courts have also scrutinised collective employment agreements directly against the principle of non-discrimination, Directive 2000/78 and the Dutch implementation thereof in the WGBL.3 By way of example, a number of cases are discussed below.

206. One case concerns a clause in the collective agreement by KLM Royal Dutch Airlines on the basis of which the employment contract of a commercial pilot automatically terminates as soon as the pilot reaches the age of 56. The Hoge Raad recalled the case law by the Court of Justice concerning Directive 2000/78.4 It sets the standards for scrutiny which consist of the relevant provisions and the proportionality tests in the Directive and the WGBL.5 Like the court of appeal, the Hoge Raad states that the discriminatory clause in KLM’s collective agreement has a legitimate aim.6 Further, the Hoge Raad recalls that there is a considerable margin of appreciation for national courts as regards the elements of suitability and necessity and that national courts reasonably have to take into account the circumstances of the case. Subsequently, the Hoge Raad confirms the appeal court’s finding that the discriminatory clause in the collective agreement is suitable and necessary to achieve the legitimate aim pursued.7 These deductions boil down to the conclusion that the collective agreement’s clause that automatically terminates the contract of a pilot who has turned 56 constitutes a proportionate derogation from Directive 2000/78 and the WGBL. The legal consequences of the clause, and primarily the automatic termination of the employment contract and thus the automatic retirement of the pilot in question, remain unaffected.

207. Against this ruling of the Hoge Raad,the pilots in question brought an action for State liability for a wrongful judicial decision against the Dutch State. Both in first instance and in appeal the Dutch courts ruled on the basis of Köbler that in this case the Dutch State cannot be held liable.8 On 19 January 2018 Advocate General to the Hoge Raad Wissink delivered his opinion to the case. Wissink supports the ruling of the lower court and that of the appeal court and concludes that the Hoge Raad has not manifestly infringed Union law by not referring preliminary questions to the Court of Justice.9 On 21 December 2018 a chamber of the Hoge Raad especially composed for this case consisting of judges that were in no way involved in the earlier case – dismissed the claim for State liability for wrongful case law and confirmed the judgment of the appeal court.10

208. Two other rulings concerning the compatibility of collective agreements with Union law deserve attention. Both rulings were delivered by the Rechtbank Amsterdam. The first case concerns a stewardess who challenged a clause in a collective agreement of, again, KLM. This time it concerns the automatic termination of the employment contracts of cabin-crew when they reach the age of 60. Under specific circumstances and upon request of the employee in question a prolongation of – at most – five extra years is accepted. The facts of this case are rather amusing: the stewardess who brought the claim had, over the years of her employment, repeatedly caused severe trouble with her colleagues during KLM flights.11 Therefore, instead of a more or less customary five-year prolongation of the employment contract, KLM allowed a prolongation of only one year in the case of this specific stewardess. In reaction to this relatively short prolongation, the lady in question brought the case before the Rechtbank Amsterdam where she claimed to be the victim of age discrimination by having a prolongation of one year instead of five years. The court in interlocutory proceedings stated that the question whether the discriminatory clause in KLM’s collective agreement concerns a clause that is, in view of Kücükdeveci,in conflict with the principle of the prohibition of age discrimination and with the Dutch WGBL depends on whether there is an objective justification for the discrimination.12 Then the court concludes that KLM has not provided sufficient evidence that the discriminatory clause is objectively justified by a legitimate aim. As a result, the rest of the proportionality test – i.e. the examination of the suitability and necessity of the clause – is aborted.13 The Rechtbank Amsterdam continues by stating that the preceding means that “it is sufficiently probable that in potential main proceedings the clause in the collective agreement would be deemed to be in conflict with the general principles of Union law, as well as with the WGBL and that therefore the particular clause is not valid, or alternatively that KLM cannot invoke the particular clause”.14 As a result, the employment contract that was concluded between the stewardess and KLM in 1993 continued to exist.15 As a consequence, the court stated, it is likely that also in potential main proceedings the prolongation of one year has no legal ground or could alternatively be annulled. As indicated, the original employment contract, which stems from 1993, is still effective. The stewardess maintains her right to payment.16 However, the court dismissed the claim of the stewardess to be factually employed: KLM had proven that the particular lady had repeatedly caused severe problems. It is in the interest of KLM and the safety of the KLM flights that the stewardess is not factually employed during any future KLM flight. According to the court, this interest outweighs the interests of the stewardess to be factually employed. In view of the preceding, “the parties have to deliberate about how to give expression to the employment contract in practice”.17

209. The last case concerns a man who worked for a cleaning services company. The company’s provision of services at a specific location was taken over by another company (change of contracts). According to a clause in the collective employment agreement, the company who took over the cleaning services from the original employer of the claimant was obliged to offer the employees who worked at that specific location a new employment contract (the so-called aanbiedingsplicht). The exception to this obligation was however also provided by this clause: if the employee would have reached the age of 65, at which time persons have the right to state pension (AOW-uitkering), there is no obligation to offer him a new employment contract. The cleaner who brought the case to court had reached this age and claimed that the clause in the collective agreement concerned age discrimination. The Rechtbank Amsterdam in interlocutory proceedings was of the same opinion. Just like in the case concerning the troublesome stewardess, the court in interlocutory proceedings stated that the question whether the discriminatory clause in the collective agreement concerns a clause that was, in view of Kücükdeveci, in conflict with the principle of the prohibition of age discrimination and with the Dutch WGBL depends on whether there is an objective justification for the discrimination.18 Subsequently, the court held that it could not be derived from the collective agreement nor from the arguments brought by the company what the aim of the discriminatory clause in the collective agreement was. Therefore the court concluded that the clause was not objectively justified by a legitimate aim and consequently aborted the rest of the proportionality test.19 The court holds that it is sufficiently plausible that in eventual main proceedings the discriminatory clause in the collective agreement would be deemed to be in conflict with the general principles of Union law and the WGBL, and that pursuant to Article 13 WGBL the discriminatory clause would be declared null and void.20 The court in interlocutory proceedings allowed itself to anticipate such a plausible future decision and stated that in view of the preceding the cleaning company who took over the cleaning services was obliged to offer the claimant an employment contract.21