Netherlands, Supreme Court, 21 December 2018 17/00424

Identification of the case

• Non-discrimination (art. 21 CFREU)
• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• Art. 267(3), TFEU
• Arts. 21 and 47, CFREU
• Directive 2000/78 EG (general framework regarding equal treatment in employment and occupation)

Summary of the case

The claimants worked for KLM as a commercial pilot. The collective labour agreement for pilots stipulated that pilots who reached the age of 56 must retire from service. The claimants argued that they were discriminated against because of their age. These pilots started proceedings against KLM, in which they demanded inter alia a declaratory judgment stating that the relevant collective labour agreement provision was null and void. After this claim was rejected by lower courts, the Supreme Court rejected their grounds of appeal and confirmed the decision of the court whereby it was decided that the age discrimination could be objectively justified. The Courts used Directive 2000/78 EG and cases of the CJEU to decide whether there was a violation of the prohibition of discrimination. In the present proceedings the claimants summoned the State before the Supreme Court and demanded a declaratory judgment that the State had acted unlawfully towards them. The claimants demanded annulment of this decision. For this purpose, the claimants requested the Supreme Court to ask preliminary questions to the CJEU regarding the explanation of discrimination. The Court confirmed the first instance decision and rejected the request to ask preliminary questions. The Supreme Court also dismissed the grounds of appeal.

• Civil judicial enforcement

The claimants demanded a declaratory judgment that the State acted unlawfully. The Supreme Court rejected the appeal.

Main questions addressed:

Did the Court violate EU law because it did not ask preliminary questions regarding age discrimination to the CJEU, and in addition, was this decision to not ask preliminary questions insufficiently motivated?

If yes, could the State be held liable for this unlawful court decision?

According to the case law of the CJEU, it is solely a matter for the national court before which the dispute has been submitted to assess both the necessity and the relevance of preliminary questions. Moreover, it follows from Cilfit (ECLI:EU:C:1982:335) that it is the national court that should assess whether the correct application of EU law is so obvious that there is no room for reasonable doubt and therefore can decide not to refer a preliminary ruling to the CJEU. It follows that it is solely for the national courts, for whose decisions there is no judicial remedy under national law, to independently determine their own responsibility and whether there was an “Acte Clair” situation.

Furthermore, according to CJEU case law, the State may be liable for damage resulting from the decision of a national court adjudicating at last instance that is contrary to a rule of European Union law. Three conditions must be met to establish State liability: 1) the infringed rule of law seeks to confer rights on individuals, 2) there is a sufficiently serious breach and 3) there is a direct causal link between the breach of the obligation resting on the State and the damage suffered by the persons concerned. With regard to this second condition, account must be taken of the specific nature of the judicial function and the justified requirements of legal certainty. The State can be held liable for a breach of Union law by a judicial decision only in the exceptional case where the court has manifestly infringed the applicable law (Köbler, C-224/01).

The Supreme Court deemed itself capable of deciding the points of disputes between the parties. In this view, the Supreme Court was not obliged to refer questions for a preliminary ruling. The mere fact that the claimants had a different opinion about the outcome of that application of EU law did not alter this.

In addition, the claimants argued that the Supreme Court in a 2012 decision (ECLI:NL:HR:2012:BW3367) wrongly omitted a motivation of its implicit decision to not submit preliminary questions. Since the Supreme Court extensively discussed the EU law at issue and the interpretation given to it by the CJEU on the basis of what had been argued by the parties in this regard, it was not obliged to do so. The judgment that there was no reasonable doubt regarding the interpretation of EU law was therefore sufficiently reasoned.

In addition, the mere statement that the judges did not fulfil the obligation laid down in art. 267(3) TFEU was not sufficient to establish State liability. Because there was no doubt regarding the interpretation of EU law insofar as it is relevant to the decisions referred to, the Supreme Court saw no ground for asking questions as referred to in art. 267(3) TFEU.

Role of the Charter and role of the general principles on enforcement

The pilots argued that the Supreme Court (in the judgment ECLI:NL:HR:2012:BW3367) misjudged art. 21 CFREU on discrimination on the basis of age.

The pilots claimed that the Supreme Court should have asked preliminary questions regarding the following elements:

1. Does EU law (art. 21 Charter and art. 6 Directive precludes compulsory age redundancy as applied by KLM for pilots, if this does not arise from national policy but is only regulated in the collective labor agreement of one employer?
2. Can age redundancy (well) below the age of 65 serve a legitimate purpose and be deemed appropriate and in accordance with the requirements of proportionality?

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Explicit reference to Art. 6 ECHR

The judgment of the Supreme Court does not explicitly mention art. 47 Charter or art. 6 ECHR, but the judgment of the District Court of The Hague did discuss these rights explicitly. In consideration 4.3 (ECLI:NL:GHDHA:2016:2984) it stated that: “the court agrees with the pilots that the Köbler criterion must be applied with regard to the present accusation (violation of Article 6 ECHR). Moreover, art. 6 ECHR corresponds with art. 47 of the Charter. On the basis of art. 6(1) TEU the Union recognizes the rights, freedoms and principles enshrined in the Charter. In this case, the pilots’ accusation means that the Supreme Court erred in its decision to motivate the decision to not apply art. 267(3).”

The Supreme Court in the present case concluded that it is solely a matter for the national court before which the dispute has been submitted to assess both the necessity and the relevance of a preliminary ruling. In this case, the Supreme Court deemed itself capable of deciding the points of disputes and found that it was not obliged to refer questions for a preliminary ruling. There is a duty of motivation on the basis of art. 47 Charter or art. 6 ECHtR in conjunction with art. 267(3) TFEU when a judge decides that a preliminary reference is not necessary in a specific case (ECLI:NL:GHDHA:2016:2984, 4.3-4.4). The District/Appeal Court of The Hague decided on this matter and the Supreme Court was held to follow this decision. Since the Supreme Court extensively discussed EU law in a 2012 judgment, the decision not to ask preliminary questions was sufficiently motivated. In sum, there is an obligation to motivate the decision to not apply art. 267(3) TFEU. This duty does not entail the obligation to explicitly refute the claimants’ statements when the Court extensively discusses the EU law at issue and the interpretation given to it by the CJEU. A violation of this duty of motivation is, however, not sufficient to establish State liability.

• Proportionality

The pilots claimed that the Supreme Court should have asked preliminary questions regarding the following elements:

1. Does EU law (art. 21 Charter and art. 6 Directive) precludes compulsory age redundancy as applied by KLM for pilots, if this does not arise from national policy but is only regulated in the collective labor agreement of one employer?
2. Can age redundancy (well) below the age of 65 serve a legitimate purpose and be deemed appropriate and in accordance with the requirements of proportionality?

(Judgment of the District Court of The Hague)

The District Court of The Hague considered that the pilots did not make it clear which questions regarding the interpretation of EU law should have been submitted to the CJEU by the Supreme Court that had not yet been clarified in the previous case law of the CJEU. It is also not up to the CJEU to decide in a specific case whether the measures being questioned are appropriate and proportionate. That judgment is reserved for the national court. With regard to the legitimate aim, the CJEU had already ruled before the judgment of the Supreme Court that promotion of access to work through a better division of employment between the generations must in principle be regarded as a legitimate aim that justifies age discrimination (Rosenbladt, C-45/09).

Elements of judicial dialogue

• Dialogue between high court - lower instance court at national level

• CJEU C-283/81, CILFIT
• CJEU C-72/14 and C-197/14, X and T.A. van Dijk
• CJEU C-224/01, Köbler

The Supreme Court explicitly refused the obligation to ask preliminary questions in these circumstances to the CJEU. The lower court concluded on the proportionality of the treatment of the pilots.

The pilots lodged different appeals. In the current proceedings the claimants stated that the State had acted unlawfully towards them on the basis that the Supreme Court should have asked preliminary questions. The different courts therefore had to determine whether lower courts had infringed the relevant article of the Charter (21) and whether there was an obligation to refer preliminary questions.

Additional notes on the decision