The Eastern Division of the Danish High Court recently found that the prohibition on age discrimination was an EC principle, which thus has direct effect on private employers, as opposed to EC directives, which according to practice from the European Court of Justice cannot per se impose obligations on private parties.
A 60 year old employee was offered another position with his employer because of cutbacks. Upon accepting the offered position, he lost his salaried employee status and his accrued length of service.
The employee was subject to section 2a (3) in the Salaried Employees Act, but the employer refused to pay section 2a-severance allowance. The provision states that severance allowance is not payable, if the employee will - on termination of the employment relationship - receive an old-age pension from the employer and the employee has joined the pension scheme in question before attaining the age of 50 years.
The employee then claimed the section 2a-severance allowance as well as compensation for age discrimination.
The Court found that though EC directives do not impose obligations on private parties per se, and could thus not be relied upon by one private party against another private party, the prohibition against age discrimination must be viewed as a general EC principle, which must then be viewed as having the same reach as the prohibition against age discrimination as the EC directive on Equal Treatment (directive of the Council of Europe 2000/78/EF), and could thus be applied between private parties.
Therefore, as determined in the Ole Andersen-case (C-499/08) (that section 2a (3) of the Danish Salaried Employees Act is in violation of the EC directive on Equal Treatment), the Eastern Division of the Danish High Court has now found that the provision is also in violation of general EC principles on prohibition against age discrimination.
It is still unknown, whether the ruling will entail a revision and or a clarification of the provision in the Danish Salaried Employees Act.