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Supreme Court of Denmark

Age limit for membership of unemployment fund 
19-01-2015 

Case no. 308/2012


Judgment delivered on 19 January 2015.

The DaneAge Association acting for A
vs.
The Ministry of Employment


Section 43 of the Unemployment Insurance Act not in contravention of the Employment Directive

In December 2007, the unemployment fund of the Danish Association of Managers and Executives ('Lederne') informed A that A's membership of the unemployment fund would be terminated in April 2008 when A turned 65. After having given notice to his employer, A registered as unemployed and applied for unemployment benefit from April 2009. The unemployment fund rejected his application on the grounds that membership of the unemployment fund is terminated at the end of the month in which the member reaches the state pension age (65), at the latest.

The case concerned whether section 43 of the Danish Unemployment Insurance Act, according to which membership of an unemployment fund is terminated when the member reaches the state pension age, amounted to discrimination in contravention of the EU Employment Directive read with the general principle of EU law prohibiting discrimination on the grounds of age.

The Supreme Court held that section 43 of the Unemployment Insurance Act is not in contravention of the Employment Directive. In that connection, the Supreme Court stated that the Danish unemployment benefit scheme must be regarded as a state social security scheme or a similar scheme, cf. Article 3(3) of the Directive. In addition, the Supreme Court stated that the scheme does not entail transfer of benefits with a financial value to an employee as remuneration in respect of his employment, and that the benefits under the scheme thus cannot be treated as income, cf. Recital 13 in the preamble to the Employment Directive, cf. Article 141 of the EC Treaty (now Article 157 of the Treaty on the Functioning of the European Union).

The High Court had reached the same conclusion.

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