Mr Toftgaard worked as a civil servant for the Danish Ministry of the Interior. He was dismissed in 2006 when his role became redundant. Danish law awards three years “availability pay” to any civil servant who is dismissed because of redundancy. This ensures that, if there is later increased demand for civil servants, there will be a pool of available workers. Any civil servant that reaches pensionable age (i.e. 65, or any other age-limit fixed for their post), is not entitled to receive availability pay.

Mr Toftgaard received no availability pay as he was aged over 65.

Mr Toftgaard brought a claim, arguing that the Ministry's refusal to provide availability pay constituted direct and indirect age discrimination. Mr Toftgaard’s claim was dismissed initially. He appealed to the Danish Supreme Court, and questions relating to the Danish "availability pay" law were referred to the ECJ.


The ECJ held that the Danish law breached the Framework Directive 2000/78/EC.

The ECJ looked at the legitimate aims behind the law. The ECJ held that the aim of ensuring civil servants' availability while limiting it to those who require protection and who are obliged to remain available was a legitimate aim under Article 6(1) of the Framework Directive.

The ECJ assessed whether the law was an appropriate and necessary (i.e. proportionate) way of achieving this aim. The ECJ held that it was appropriate but it was not necessary.

The ECJ held that it was appropriate. It was intended to increase protection for civil servants and provide a stable income and it did exactly that. However, the ECJ held that it was not necessary because the same objective could be achieved by less restrictive measures. Those of pensionable age were not given a choice between taking a pension or availability pay. If they were able to temporarily sacrifice pension and elect to take availability pay to make themselves available to work, the same objective could be achieved.

The judgment is available here

Dansk Jurist- og Økonomforbund, acting on behalf of Erik Toftgaard v. Indenrigs- og Sundhedsministeriet, 26 September 2013, case number C546/11