Sunday, March 8, 2009
In a few words, the question was whether the UK requirement violated Directive 2000/78/EC which prohibits discrimination on grounds of age as regards employment and occupation. However, this Directive provides, by way of exception, that certain differences of treatment on grounds of age do not constitute discrimination if they are objectively and reasonably justified by legitimate aims, such as those related to employment policy, the labour market or vocational training. Furthermore, the means of achieving that aim must be appropriate and necessary. The directive lists certain differences of treatment which may be justified.
The United Kingdom regulations which transpose the directive provide that employees who have reached their employer’s normal retirement age or, if the employer does not have a normal retirement age, age 65, may be dismissed for reason of retirement without such treatment being regarded as discriminatory.
In Case C-388/07, the Court notes that the aims which may be considered ‘legitimate’ by the directive, and, consequently, appropriate for the purposes of justifying derogation from the principle prohibiting discrimination on grounds of age, are social policy objectives (e.g. employment policy, the labour market or vocational training). By their public interest nature, those legitimate aims are distinguishable from purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness. As the Court often does, it held that it is for the national court to ascertain, first, whether the UK legislation reflects such a legitimate aim and, second, whether the means chosen were appropriate and necessary to achieve it.
In non-EU law jargon, this means that the UK is not breaking EU law for forcing people to retire at the age of 65 provided the requirement is justified by social policy considerations.
(mew and lp)