Case C-447/09

Reinhard Prigge and Others

v

Deutsche Lufthansa AG

(Reference for a preliminary ruling from the Bundesarbeitsgericht)

(Directive 2000/78/EC – Articles 2(5), 4(1) and 6(1) – Prohibition of discrimination on grounds of age – Airline pilots – Collective agreement – Clause automatically terminating employment contracts at age 60)

Summary of the Judgment

1.        Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on grounds of age – Whether a difference of treatment resulting from measures laid down by national law necessary for public security or for the protection of health is permissible – Concept of national legislation – Measures provided for by a collective agreement – Included

(Council Directive 2000/78, Art. 2(5))

2.        Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on grounds of age – Whether a difference of treatment based on a characteristic constituting a genuine and determining occupational requirement is permissible – Conditions

(Council Directive 2000/78, Art. 4(1))

3.        Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on grounds of age – Option for Member States to exclude from the concept of discrimination a difference of treatment when it is objectively and reasonably justified by a legitimate aim – Scope

(Council Directive 2000/78, Art. 6(1), first para.)

1.        On a proper construction of Article 2(5) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, the Member States may authorise, through rules to that effect, the social partners to adopt measures within the meaning of Article 2(5) in the areas referred to in that provision that fall within collective agreements on condition that those rules of authorisation are sufficiently precise so as to ensure that those measures fulfil the requirements set out in Article 2(5). A measure which fixes the age-limit from which pilots may no longer carry out their professional activities at 60, whereas national and international legislation fixes that age at 65, is not a measure necessary for public security and protection of health, within the meaning of Article 2(5).

(see para. 83, operative part)

2.        Article 4(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding a clause in a collective agreement that fixes at 60 the age-limit from which pilots are considered as no longer possessing the physical capabilities to carry out their professional activity while national and international legislation fix that age at 65.

In so far as it allows a derogation from the principle of non‑discrimination, Article 4(1) of Directive 2000/78 must be interpreted strictly. However, while possessing particular physical capabilities may be considered as a genuine and determining occupational requirement, within the meaning of that provision, for acting as an airline pilot and while the objective of guaranteeing air traffic safety pursued by that measure constitutes a legitimate objective within the meaning of Article 4(1), fixing at 60 the age-limit from which airline pilots are considered as no longer possessing the physical capabilities to carry out their occupational activity constitutes, in such circumstances and in the light of national and international legislation, a disproportionate requirement within the meaning of Article 4(1).

(see paras 67-69, 72, 75, 83, operative part)

3.        The first paragraph of Article 6(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted to the effect that air traffic safety does not constitute a legitimate aim within the meaning of that provision.

While the list of legitimate aims set out in the first paragraph of Article 6(1) is not exhaustive, the aims that may be considered legitimate within the meaning of that provision and, consequently, appropriate for the purposes of justifying derogation from the principle prohibiting discrimination on grounds of age, are social policy objectives, such as those related to employment policy, the labour market or vocational training. An aim such as air traffic safety does not fall within the aims referred to in the first paragraph of Article 6(1).

(see paras 80-83, operative part)