Age limits remain a permanent issue in employment law in Europe. They come into play in different ways: On the one hand, as a maximum age limit for the commencement of a particular career; on the other hand – even more relevant – as an age limit at which the employment relationship automatically terminates. A third similar case is the provision of benefits (for example additional leave days) from or to a certain age.
All these instances have already been the subject of several decisions of the ECJ, most recently on 5 July 2017 (docket number C-190/16). The reason for the multitude of judgments is that these age limits constitute (direct) unequal treatment on grounds of age under European law (see article 1 and 2 Council Directive 2000/78/EC). This difference in treatment is only permitted if it is justified (article 6 Council Directive 2000/78/EC). This is only the case, “if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, […], and if the means of achieving that aim are appropriate and necessary“.
This presents many problems in practice. The legislator (or the employer, which adopts such a regulation) must take into account precisely the objectives pursued by a regulation and whether these objectives cannot be pursued elsewhere. This explains why some age limits are permissible and others are inadmissible.
The most important decisions of recent years are:
- ECJ from 12. October 2010 – docket number C-45/09 (Rosenbladt) – Termination at statutory pension age is permitted
- ECJ from 5. July 2012 – docket number C-141/11 (Hörnfeldt) – Termination at statutory pension age is permitted and regardless of the pension level
- ECJ from 18. November 2010 – docket number C-250/09 and C-268/09 (Georgiev) – Age limit of 68 years for professors is permissible in the specific case
- ECJ from 13 September 2011 – docket number C-447/09 (Prigge) – Age limit of 60 years for pilots is inadmissible in the specific case
- ECJ from 12. January 2010 – docket number C-229/08 and C-341/08 (Petersen) – Age limit of 68 years for contract dentists is inadmissible in the specific case
- ECJ from 6. November 2012 – docket number C-286/12 (Commission / Hongrie) – Age limit of 62 years is inadmissible for judges, prosecutors and notaries in the specific case
- ECJ from 5. July 2017 – docket number C-190/16 (Fries) – Age limit of 65 years for pilots is permitted in the specific case
It is therefore important that there is always a legitimate aim which the legislature or the individual employer pursues. In the current case the goal was “establishing and maintaining a high uniform level of civil aviation safety“.
This aim must also be appropriate and necessary. Two points are relevant here: On the one hand, the ECJ often checks at this point whether the regulation is consistently enforced. In this case, the legislator must not be contradictory (so-called coherence). Only when a aim is pursued broadly and not only in individual regulations is it recognized as permissible.
On the other hand, the ECJ now makes it clear that rigid age limits (as in most cases) are also permissible. There is no need for a single case test or an exact medical proof of the limitations on the individual from the age of 65 onwards, otherwise an efficient and practicable age limit would not be conceivable. Here the age limit is “based on extensive professional debate and expertise; they are, as objective and reasonable references for decision‑makers, of particular relevance in assessing the proportionality of the provision of EU law at issue in the present case”. A single case test would also be impractical. The ECJ here refers in large part to the detailed arguments of the Advocate General Bobek in his Opinion from 21. March 2017 (recitals 60 – 62).
On the whole, the judgments show, in any case, that caution should be exercised in every case of regulations or provisions connected to age. It is always advisable to consult legal assistance in order to avoid invalidity of the regulations.