This project has received funding from the European Union’s Seventh Framework Programme for research, technological development and demonstration under grant agreement no 320294

EU

Student “zero” and the principle of non-discrimination on grounds of age: a fruitful discussion with high school students.

European Court of Justice, C‑432/14, “0” v. Bio Philippe Auguste SARL, 1 October 2015.

In summer 2010 a university student (anonymously called Student “zero” in the CJEU ruling) decided to spend part of his winter vacation working in France. He was recruited by Bio Philippe Auguste SARL, under a fixed-term employment contract for the period from 21 December 2010 to 24 December 2010. On the expiry date of his contract, on Christmas eve, he was informed that he would not have received his end-of-contract payment, as Article L. 1243-10 of the Code du Travail (subparagraph 2) provided that that sum is not payable  the contract is concluded with a young person during school holidays or university vacations.

Regardless of the small sum at stake – 23,21 Euro – the student brought an action before the Conseil de Prud’hommes de Paris (Labour Tribunal, Paris), seeking the sum in respect of the end-of-contract payment. He considered that French provision preventing the recognition for the sum was contrary to the Constitution, which guarantees the principle of equal treatment, as well as the principle of non-discrimination on grounds of age, provided in  Council Directive 2000/78/EC of 27 November 2000 (“Framework equality directive”), establishing a general framework for equal treatment in employment and occupation.

After the involvement of the Conseil Constitutionnel– which concluded for the legitimacy of the French provision, as it was simply establishing a specific treatment for students who intend to return to their schooling at the end of a working period during holidays – the Conseil de Prud’hommes in Paris decided to refer the matter to the Court of Justice for a preliminary ruling.

The referring Court asked “whether EU law, specifically the principle of non-discrimination on grounds of age enshrined in Article 21 of the Charter of Fundamental Rights of the European Union and given specific expression by Directive 2000/78, must be interpreted as precluding a national provision………….under which an end-of-contract payment, …………… is not payable in the event that the contract is concluded with a young person for a period during his school holidays or university vacation”.

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The above mentioned proceeding is part of the expanding case law of the CJEU in the field of age discrimination prohibited by law. The battle for age equality has been assuming great importance in International and European law, particularly after the enactment of the above mentioned Council Directive 2000/78/EC of 27 November 2000, the purpose of which is to combat discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation. Although containing only few provisions specifically addressed to age equality (see for example ILO Older Workers Recommendation 1980 n. 150), International human rights law  has also viewed this kind of discrimination on some occasions as a form of  “other status” discrimination, prohibited by art. 26 of the International Covenant on Civil and Political Rights (ICSECR) and art. 14 (prot. 12) of the European Convention on Human Rights (ECHR), as well as some other human rights instruments (see on this: C. O’Cinneide, The growing importance of Age Equality, in The Equal Rights Review, 11, 2013, p. 99 ff). With regard to EU law specifically,  the CJEU, by definitively acknowledging that age inequality  is a specific form of discrimination, has also set out a framework that serves as a comprehensive guide of the Members states, as to when the use of age-based distinction is or is not legally and objectively justified (O’Cinneide, cit. p. 102. See decisions Andersen; Mangold; Prigge and others).

From a strictly technical point of view, the “Student 0” proceeding at stake is just one example of the extending CJEU case law giving both employers and national legislators criteria for deciding  when age distinction will or will not satisfy the requirements of EU law. The Court introduced a difference in treatment between two categories of workers: students employed on the basis of a fixed-term employment contract during a university vacation and “regular” workers, who unlike the former, are entitled to the end-of-contract payment. According to the Court, following the aim of Article L. 1243-8 of the Code du Travail, the two situations are not comparable; as a consequence, a national provision providing that an end-of-contract payment is not payable in the event that the contract is concluded with a young person for a period of time during his/her school or university holidays does not constitute discrimination on grounds of age. Therefore, the principle of non-discrimination on grounds of age (enshrined in Article 21 of the Charter of Fundamental Rights of the European Union and having specific expression in Council Directive 2000/78/EC of 27 November 2000) must be interpreted as not precluding a national rule, as the one enacted in France, impeding recognition to a young student of a specific labour compensation.

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The decision is therefore to be intended as part of a reinforced case law and does not constitute a leading case. What seem to be more interesting within the EU citizen project are the reasons that lead student “zero” to start the legal action.

At the hearing, the student applicant expressly admitted that the dispute had been provoked solely and exclusively in order to challenge the provisions enacted in France which prevented young students to receive the end-of-contract payment. That was very clear to the Court of Justice itself, as the ruling explicitly reports  that, given the small sum at stake, the dispute was obviously fictitious and had been provoked solely and exclusively in order to challenge the provisions at issue.

One might wonder whether the French provision has been perceived by student “zero” as a barrier to the exercise of his own rights, as a European citizen.

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Student “zero” decision has been a stimulating occasion to deepen the knowledge of students’ perception of EU citizenship and rights. What does it mean to be a European citizen for Italian-European students? Are students aware of their rights as EU citizens, particularly young high school students, who have never studied law?

In the last few weeks I decided to go through some discussions addressed particularly to teenagers studying in Italian high schools and institutes of primary education. Of particular interest are those schools where law is not included in the educational program: the debate I provoked and deliberately oriented on legal issues became a kind of experiment to measure the perception of young people as regards  the meaning and the concrete value of European citizenship.

In most cases Student “zero” decision was the starting point of the discussion. After having exposed a simplified version of the case, I asked the students to comment the story, without influencing their views and opinions by explaining the case from a strictly legal point of view. In most cases, students showed an instinctive capacity of decodifying the Court decision on their own, by referring to a rather clear idea of “right” and “element preventing its exercise” (barrier!).

High school students proved to have an instinctive knowledge of their rights, deriving from their status of European citizens, which, in most cases, coincides with a general idea of freedom. Holding a right means, to those young students, being protected in the exercise of their freedoms. This is not surprising at all: according to the “Economist” (http://www.economist.com/) when asked  the question  “what the EU means to you”,  57% of Europeans aged  between 15 and 24  cite the freedom to travel, work and study anywhere they like. And the mobility of young people is made possible through easy access to work too. The discussion with the students proved that it is crystal clear to them that this mobility is important for participation in social and working life. Some of them consider it a crucial requisite to be full EU citizens. This is not surprising in southern Europe, where young students are aware of the fact that their standard of living will probably be worse than that of their parents. Consequently, the possible perspective of moving to a different EU State in order to find or create a profession is naturally present in their future plans.

The debate helped students to understand the complexity of European citizenship and our project bEU citizen aims to make their ideas a little more real.

Picture with Blog Elena

In the picture: students of the “Alcide De Gasperi High School”, Trento, 23 March 2016.