Discrimination on Grounds of Age

The principle of non-discrimination on grounds of age applies, in essence, in the field of employment and labour, whether in terms of recruitment, the exercise of activity or pension rights.

Since 2010, the Court has held, on several occasions, that it is not generally possible to set an age limit for recruitment of certain professions. It may be otherwise when the possession of particular physical capacities is a genuine and determining occupational requirement for the pursuit of the profession (such as in the case of firefighters who are directly involved in fighting fires or police officers whose duties require the use of physical force) (judgments of 12 January 2010, Wolf, C-229/08 and C-341/08; of 13 November 2014, Vital Pérez, C-416/13; and of 15 November 2016, Salaberria Sorondo, C-258/15).

By contrast, the Court acknowledged that the compulsory retirement of workers at the age of 65 years may be permissible where it seeks to ensure better distribution of work between the generations and, in particular, for the purposes of checking unemployment and where the workers concerned are entitled to draw an adequate retirement pension (judgment of 16 October 2007, Palacios de la Villa, C-411/05). In the same vein, the Court considered that the age limit of 65 years laid down in EU law for pilots of commercial aircraft engaged in transporting passengers, cargo or mail is valid. It is justified by the aim of ensuring civil aviation safety (judgment of 5 July 2017, Fries, C-190/16). However, the Court held that the total prohibition on airline pilots from carrying out their piloting activity after the age of 60 years constitutes discrimination on grounds of age because such a ban goes beyond what is necessary to ensure the protection of air traffic safety (judgment of 13 September 2011, Prigge and Others, C-447/09).

In addition, the Court held that the objective of encouraging the integration into working life of unemployed older workers does not justify national legislation which authorises, without restrictions, the conclusion of fixed-term employment contracts for all workers over the age of 52 years, whether or not they were unemployed before the contract was concluded and whatever the duration of any period of unemployment (judgment of 22 November 2005, Mangold, C-144/04).

The Court also found there to be discrimination where workers were  deprived of severance allowance on the ground that they may draw an old-age pension (judgment of 12 October 2010, Andersen, C-499/08).

Lastly, the Court noted that, even in disputes between private persons, a national court must ensure compliance with the principle of non-discrimination on grounds of age, disapplying if need be any provision of national legislation contrary to that principle (judgment of 19 April 2016, Dansk Industri, C-441/14).