Italian law permits a person under 25 to be employed on an ‘on-call’ or ‘zero-hours’ employment contract. In this case, the employer employed a young man for ‘on-call’ shop work. The employer then got rid of him when he turned 25. This left the worker without a job and the feeling that he had been discriminated against on grounds of his age. Since the EU Charter bans discrimination, the question is whether this plank of Italian labour law is compatible with the EU Charter.
In 2010, a young man went to work in a clothes shop known as Abercrombie and Fitch. His employment was governed by an ‘on-call’ contract of employment, which for workers under 25 is regulated by Article 34 of the Italian Parliamentary Decision no. 276/2003.
Two years later, and the man turned 25. His employer immediately terminated the contract of employment. The employer pointed out that Italian law permitted such an employment contract only for workers under 25.
Suddenly without a job, the man took his employer to court alleging age discrimination. Although losing at first instance, he won at the Milan Court of Appeal which took the view that an on-call contract based solely on age was illegal. The litigation reached the Italian Court of Cassation.
At the Italian Court of Cassation
The ban on age discrimination is set out in the EU’s general framework for equal treatment Directive 2007/78 (OJ  L303/16), and Article 21(1) of the EU Charter.
Article 6(1) of the Directive provides:
‘Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.
Such differences of treatment may include, among others:
(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;
(b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;
That said, a difference in treatment need not amount to discrimination. According to the CJEU in C-555/07, Kücükdeveci ECLI:EU:2910:21:
33 The first subparagraph of Article 6(1) of Directive 2000/78 states that a difference of treatment on grounds of age does not constitute discrimination if, within the context of national law, it is objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.
Applied here, Judge Stile of the Italian Court of Cassation realised that the Italian labour law rule contained neither an express nor a relevant justification for the age limitation. However, he still felt that he did not know how EU law should be applied and therefore decided to make a preliminary reference to the CJEU.
My unofficial translation of the question asked by the Italian Court of Cassation reads:
Is a national rule such as Article 34 of Decision 276/2003 of the Italian Parliament which enables an on-call contract of employment to be concluded with people younger than 25 years of age providing services contrary to the age discrimination ban in Directive 2007/78 and Article 21(1) of the EU Charter?
Objective grounds for a difference in treatment and ‘occupational requirements’ are currently pending in a case about a worker who wore religious clothing; see further, Case C-188/15, Bougnaoui – wearing an Islamic headscarf in the information society.
In April, the CJEU handed down an important judgment on age discrimination in Case C-441/14, Dansk Industrie (DI) ECLI:EU:C:2016:278.
Update – 11 December 2016
The First Chamber is due to the hear the Abercrombie case on 12 January 2017.
Update – 18 February 2017
The Opinion of Advocate General Bobek is due on 23 March 2017.