OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 26 June 2019 (1)
Case C‑396/18
Gennaro Cafaro
v
DQ
(Request for a preliminary ruling from the Corte suprema di cassazione (Supreme Court of Cassation, Italy))
(Reference for a preliminary ruling — Holders of pilot licences who have reached the age of 60 years — Company engaged in activities associated with protecting national security — Prohibition of discrimination on grounds of age — Scope of application of Regulation (EU) No 1178/2011 — Directive 2000/78/EC)
I. Introduction
1. There is abundant case-law on the principle of non-discrimination on grounds of age, in which the Court of Justice has been called upon to examine, in the light of that principle, whether a Member State can prohibit pilots who have reached a given age from carrying on their profession. (2)
2. The questions referred for a preliminary ruling now revisit the matter from the perspective of the particular circumstances of the case in the main proceedings. Specifically, the Court will have to determine whether the nature of the activities carried on by a company that employs pilots, namely activities associated with protecting national security, can affect how to assess the prohibition on pilots who have reached the age of 60 years from carrying on that profession.
II. Legal context
A. EU law
1. Regulation (EC) No 216/2008
3. Article 1(1) of Regulation (EC) No 216/2008 (3) states:
‘This Regulation shall apply to:
…
b) personnel and organisations involved in the operation of aircraft.
…’
4. It can be seen from Article 2(1) of that regulation that ‘the principal objective of this Regulation is to establish and maintain a high uniform level of civil aviation safety in Europe.’
5. Article 7(2) of that regulation provides as follows:
‘Except when under training, a person may only act as a pilot if he or she holds a licence and a medical certificate appropriate to the operation to be performed.
…’
2. Regulation (EU) No 1178/2011
6. Article 1 of Regulation (EU) No 1178/2011 (4) provides as follows:
‘This Regulation lays down detailed rules for:
(1) different ratings for pilots’ licences, the conditions for issuing, maintaining, amending, limiting, suspending or revoking licences, the privileges and responsibilities of the holders of licences, the conditions for the conversion of existing national pilots’ licences and of national flight engineers’ licences into pilots’ licences, as well as the conditions for the acceptance of licences from third countries;
…’
7. Article 2 of Regulation No 1178/2011 provides as follows:
‘For the purposes of this Regulation, the following definitions shall apply:
(1) “Part-FCL licence” means a flight crew licence which complies with the requirements of Annex I;
…’
8. According to Article 12 of Regulation No 1178/2011, entitled ‘entry into force and application’:
‘1. This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
It shall apply from 8 April 2012.
1b. By way of derogation from paragraph 1, Member States may decide not to apply the provisions of Annexes I to IV until 8 April 2013.
…’
9. FCL.065 of Annex I to Regulation No 1178/2011, entitled ‘curtailment of privileges of licence holders aged 60 years or more in commercial air transport’, provides as follows:
‘(a) Age 60-64. Aeroplanes and helicopters. The holder of a pilot licence who has attained the age of 60 years shall not act as a pilot of an aircraft engaged in commercial air transport except:
(1) as a member of a multi-pilot crew; and
(2) provided that such a holder is the only pilot in the flight crew who has attained the age of 60 years.
(b) Age 65. The holder of a pilot licence who has attained the age of 65 years shall not act as a pilot of an aircraft engaged in commercial air transport.
…’
3. Directive 2000/78/EC
10. According to Article 1 of Directive 2000/78/EC, (5) the purpose of the Directive is ‘to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’
11. Article 2 of Directive 2000/78, entitled ‘concept of discrimination’, provides as follows:
‘1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2. For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
…
5. This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.’
12. Article 3 of Directive 2000/78, entitled ‘scope’, provides in paragraph 4:
‘Member States may provide that this Directive, in so far as it relates to discrimination on the grounds of disability and age, shall not apply to the armed forces.’
13. Article 4 of Directive 2000/78, entitled ‘occupational requirements’, provides in paragraph 1:
‘Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’
14. Article 6 of Directive 2000/78, entitled ‘justification of differences of treatment on grounds of age’, provides as follows in paragraph 1:
‘Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.
…’
B. Italian law
15. The referring court indicates that DQ, an air transport company engaged in covert secret service activities, (6) is a company created under Article 25 of Legge n. 124/2007 — Sistema di informazione per la sicurezza della republica e nuova disciplina del segreto (Law No 124/2007 on the information system for the security of the Republic and the new rules on the classification of confidential data) of 3 August 2007 (GURI No 187 of 13 August 2007) that carries on activities classified as ‘confidential’, that is to say, not-for-profit covert secret service activities.
16. The fourth paragraph of Article 744 of the Codice della navigazione (Navigation Code) provides that aircraft used by public or private bodies for activities protecting national security are deemed to be equivalent to State aircraft.
17. According to the first paragraph of Article 748 of the Navigation Code, that code does not apply to aircraft used for activities protecting national security.
18. The third paragraph of Article 748 of the Navigation Code provides that the carrying on of flight operations by aircraft deemed to be equivalent to State aircraft is to be subject to a guarantee of an adequate level of safety, identified according to the special rules adopted by the competent State administrative authorities.
19. The Decreto del Presidente del Consiglio dei Ministri (Prime Ministerial Decree) of 9 September 2008 regulating limitations on employment for DQ aircrew (‘DPCM’) was adopted under the third paragraph of Article 748 of the Navigation Code.
20. Article PCM-OPS 1.1136 of the DPCM, entitled ‘maximum age limit’, provides as follows:
‘Taking into account the aims set out in the preceding articles, it is established that [DQ]’s pilots may carry on their professional activities until they reach the age of 60 years but may not do so past that age’.
III. The facts giving rise to the main proceedings, the questions referred and the procedure before the Court of Justice
21. On 19 January 2012, DQ notified Gennaro Cafaro, whom that company employed as an aircraft pilot, that his employment contract would terminate on 19 September 2012 because he would have reached the age of 60 years.
22. Mr Cafaro challenged the lawfulness of his dismissal before the Tribunale di Roma (District Court, Rome, Italy), which dismissed his claim. The Corte d’appello di Roma (Court of Appeal, Rome, Italy) subsequently confirmed that decision by a judgment of 19 February 2016.
23. Mr Cafaro appealed to the referring court, the Corte suprema di cassazione (Supreme Court of Cassation, Italy).
24. The referring court notes that, under national law, DQ’s aircraft are deemed to be equivalent to State aircraft. As such, they carry out flight operations associated with protecting national security, and have to guarantee an adequate level of safety, which is identified according to special rules including, in particular, the DPCM. The referring court states in that regard that, according to the DPCM, DQ’s pilots are not authorised to carry on their activity beyond the age of 60 years.
25. The referring court observes that point FCL.065 of Annex I to Regulation No 1178/2011 allows the pilots of aircraft operated for commercial transport to continue performing their activity after the age of 60 years, under certain conditions. Specifically, the referring court notes that FCL.065 only prohibits those pilots from carrying on their activity when they have reached 65 years.
26. The referring court is uncertain whether FCL.065 of Annex I to Regulation No 1178/2011, which applies expressly to commercial air transport, may nevertheless be regarded as a general rule regarding the age of pilots. If it can, the referring court entertains doubts as to whether FCL.065 precludes national legislation according to which, for the pilots of aircraft used for activities associated with protecting national security, their employment relationship automatically terminates when they reach the age of 60 years.
27. In the alternative, the referring court asks whether the special rules establishing that a pilot’s employment relationship automatically terminates at the age of 60 years are compatible with Directive 2000/78 and the principle of non-discrimination on grounds of age set out therein, and with Article 21(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
28. In those circumstances, by a judgment received at the Court of Justice on 15 June 2018, the Corte suprema di cassazione (Supreme Court of Cassation) stayed the proceedings and referred the following questions to the Court for a preliminary ruling:
‘(1) Is the national legislation set out in the [DPCM], in implementation of the third paragraph of Article 748 of the Navigation Code, which regulates the limitations on employment for [DQ] aircrew and in particular provides for the automatic termination of the employment relationship once a pilot reaches the age of 60 years, contrary to Regulation No 1178/2011 in so far as that regulation sets 65 years as the age limit for employing pilots in commercial air transport, and would that regulation, if the special national legislation were to be disapplied, be applicable to the present case?
(2) In the alternative, if that regulation is held not to be applicable ratione materiae to the present case, is the aforementioned national legislation contrary to the principle of non-discrimination on the ground of age laid down in Directive 2000/78 and [the Charter (Article 21(1)], to which Directive 2000/78 gives practical expression?’
29. Written observations were submitted by the applicant in the main proceedings and DQ, the Italian and Polish Governments and the European Commission.
30. The applicant in the main proceedings, DQ, the Italian Government and the Commission presented oral argument at the hearing held on 11 April 2019.
IV. Analysis
A. The first question referred for a preliminary ruling
31. By its first question, the referring court enquires, in essence, whether FCL.065 of Annex I to Regulation No 1178/2011 must be interpreted as precluding national legislation such as that at issue in the main proceedings according to which the employment relationship of pilots terminates automatically as soon as they reach the age of 60 years where they are employed by a company that operates aircraft used for activities associated with protecting the national security of the Member State.
32. I need to clarify at the outset that, to my mind, FCL.065 does not apply to the dispute in the main proceedings, as I will endeavour to demonstrate.
1. FCL.065 of Annex I to Regulation No 1178/2011 does not apply ratione temporis
33. DQ, the Italian Government and the Commission argue primarily that FCL.065 of Annex I to Regulation No 1178/2011 does not apply ratione temporis to the situation in the main proceedings.
34. In contrast, as can be seen from the decision to refer, the Corte suprema di cassazione (Supreme Court of Cassation) believes that it cannot be ruled out that FCL.065 of Annex I to Regulation No 1178/2011 may apply ratione temporis, since that provision is not among those whose application the Member State is permitted to defer.
35. I note that, in the procedure laid down by Article 267 TFEU for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. That being so, the questions referred must be answered in the light of all the provisions of the Treaty and of secondary legislation which may be relevant to the problem. (7) Similarly, in order to provide a useful answer to the court that has referred a question to it for a preliminary ruling, the Court may find it necessary to consider provisions of EU law to which the national court did not refer in the decision to refer. (8)
36. Admittedly, the referring court has not identified any provision in Regulation No 1178/2011 according to which application of FCL.065 of Annex I can be deferred. Nevertheless, Article 12(1b) of that regulation clearly provides that the application can be deferred, since, according to that article, Member States may decide not to apply the provisions of Annex I, which includes FCL.065, until 8 April 2013.
37. In that respect, it is apparent both from the written observations of the Commission and of the Italian Government and from those made by the Italian Government at the hearing that the Italian Republic availed itself of the option provided under Article 12(1b) of Regulation No 1178/2011, with the effect that the provisions of Annex I to Regulation No 1178/2011 did not apply in Italy before 8 April 2013.
38. Mr Cafaro’s employment relationship ended on 19 September 2012, as he had been notified on 19 February 2012, and FCL.065 of Annex I to Regulation No 1178/2011 therefore does not apply ratione temporis to the dispute in the main proceedings.
39. For the sake of completeness, I will demonstrate below that, in any event, Regulation No 1178/2011 likewise is not applicable ratione materiae to the dispute in the main proceedings.
2. Regulation No 1178/2011 does not apply ratione materiae
40. Regulation No 1178/2011 is an act implementing Regulation No 216/2008 and was adopted, in particular, under Article 7(6) of that regulation. The material scope of Regulation No 1178/2011 therefore cannot be broader than the material scope of the basic act on which it is founded. (9)
41. I will therefore refer to the provisions of Regulation No 216/2008 that define its material scope in order to identify the material scope of Regulation No 1178/2011.
42. First, in positive terms, Regulation No 216/2008 aims at establishing common rules and maintaining a high uniform level of safety in the field of civil aviation. (10) That regulation therefore applies to activities relating to civil aviation. The same finding must be made in relation to Regulation No 1178/2011, which lays down the technical requirements and administrative procedures applicable to civil aviation aircrew.
43. Secondly, in negative terms, Article 1(2) of Regulation No 216/2008 clearly establishes that the regulation does not apply to personnel and organisations engaged in military, customs, police, or similar services. That exception therefore also applies in the case of Regulation No 1178/2011.
44. I need to clarify here my understanding of that exception. Mr Cafaro argues that, since DQ is a private company, incorporated in accordance with the rules of the Civil Code, which acts as an authorised commercial air transport operator, it cannot fall within the exclusion set out in Article 1(2) of Regulation No 216/2008. Mr Cafaro therefore asserts that Regulation No 1178/2011 should apply to DQ.
45. Indeed, since it is an exception, Article 1(2) of Regulation No 216/2008 must be interpreted strictly. Nevertheless, this does not in my view mean it is necessary to be guided by the legal form of the entity concerned in order to ascertain whether it falls within that article.
46. First, to my mind, a literal interpretation of Article 1(2) of Regulation No 216/2008 shows that an entity’s form is irrelevant for the purpose of establishing whether it falls within the exception, since it is not mentioned in any way whatsoever. That article refers in fact to personnel and organisations … engaged in military, customs, police, or similar services. It refers only to the activities carried on by the personnel and organisations in question. That article therefore lays down a functional rather than a formal criterion for determining whether or not the personnel and organisations who carry on those activities fall within the scope of Regulation No 216/2008 and, by extension, of Regulation No 1178/2011.
47. Secondly, the interpretation of Article 1(2) of Regulation No 216/2008 that Mr Cafaro proposes in his observations to my mind runs counter to the effectiveness of Regulations No 216/2008 and No 1178/2011, because it implies that the scope of those regulations depends on national legal classifications. Were such an interpretation of Article 1(2) to be upheld, a company that is a private entity under national law would always fall within the scope of those regulations. To make application of the provisions of Regulations No 216/2008 and No 1178/2011 solely dependent on national law in all its variety would lead to great disparity in the applicable provisions from one Member State to another and would thereby frustrate the purpose of those regulations, that is, to establish common rules in the field of civil aviation.
48. However, it is apparent from the decision to refer that DQ provides a ‘specific’ kind of service, that is to say, ‘covert secret service activities’, carried out for the purpose of protecting national security. (11) The activities carried on by DQ therefore fall outside the material scope of Regulation No 216/2008, for two reasons. First, covert secret service activities, carried on in relation to protecting national security, do not, to my mind, come within the field of civil aviation. Secondly, and to a much greater extent, such activities fall within the exception set out in in Article 1(2) of Regulation No 216/2008, being services similar to military, customs or police services. It is irrelevant in that respect that DQ carries on that activity in the form of a private entity.
49. I am therefore of the view that neither Regulation No 1178/2011, in general, nor FCL.065 of Annex I thereto, in particular, applies ratione materiae to the situation under analysis, any more than those provisions apply ratione temporis.
B. The second question referred for a preliminary ruling
50. By its second question, the referring court asks, in essence, whether Directive 2000/78 and Article 21(1) of the Charter must be interpreted as precluding national legislation such as that at issue in the main proceedings according to which the employment relationship of pilots terminates automatically as soon as they reach the age of 60 years where they are employed by a company operating aircraft used for activities associated with protecting the national security of the Member State.
51. As a preliminary point, in order clearly to identify the elements of EU law whose interpretation is requested, I need to clarify that, in my view, it is not necessary to refer to the provisions of the Charter in order to answer the question referred. The Charter sets out a general principle of non-discrimination on grounds of age, which has been given specific expression in Directive 2000/78 in the field of employment and occupation. (12) It follows that, when it is ruling on a request for a preliminary ruling concerning the interpretation of the general principle of non-discrimination on grounds of age, as enshrined in Article 21 of the Charter, and of the provisions of Directive 2000/78, the Court examines the question solely in the light of that directive. (13)
52. I will therefore focus my analysis on interpreting the provisions of Directive 2000/78 alone. I would note in that regard that, although the referring court has not formally identified the relevant provisions of Directive 2000/78 in the questions it refers, it is apparent from consistent case-law that the Court may extract from the wording of the questions formulated by the referring court, and having regard to the facts stated by the latter, those elements of EU law necessary to enable that court to resolve the legal problem before it in accordance with EU law. (14)
53. Reading Directive 2000/78 in the light of the grounds of the decision to refer identifies a number of provisions relevant to resolving the dispute in the main proceedings, that is to say, Articles 2(5), 3(4), 4(1) and 6(1) of Directive 2000/78.
54. In order to answer the second question referred, I will therefore analyse those articles successively.
55. First of all, I must determine whether the legislation at issue in the main proceedings falls within the scope of Directive 2000/78. I will then examine whether that legislation operates unequal treatment on grounds of age and, lastly, if applicable, whether that inequality can be justified with the effect that it would not constitute discrimination within the meaning of Directive 2000/78. (15)
1. Applicability of Directive 2000/78
56. The Commission asserts that DQ’s situation is capable of falling within the exception set out in Article 3(4) of Directive 2000/78, according to which Member States may provide that the Directive, in so far as it relates to discrimination on the grounds of age, shall not apply to the armed forces.
57. My view is nevertheless that the exception set out in that article is irrelevant to the present case, for the following reasons.
58. First, in its principal argument, the Italian Government confirmed at the hearing that although, in accordance with Article 3(4) of the directive, the Italian Republic included in its national law an exception from the application of Directive 2000/78 in so far as it relates to discrimination on the grounds of age, for the armed forces, that exception does not in any event apply to DQ.
59. Secondly, since it is an exception, Article 3(4) of Directive 2000/78 must be interpreted strictly. In other words, the exception cannot encompass every company that, whilst it carries on activities associated with national protection, nevertheless does not form part of the armed forces of the Member State. That article therefore cannot be interpreted as applying to organisations that are not part of the armed forces, even where they perform similar operations to those carried out by those forces.
60. Nor can any finding relating to whether or not the exception set out in Article 3(4) of Directive 2000/78 applies be inferred from the analysis in my response to the first question referred, that DQ’s activities are services similar to military services within the meaning of Regulation No 216/2008.
61. On the one hand, it is clear from the very wording of the exception in Article 3(4) that this exception has a much more limited scope than the exception set out in Article 1(2) of Regulation No 216/2008. Whereas the exception under Article 3(4) relates only to the armed forces, Regulation No 216/2008 does not apply in the case of military, customs, police or similar services. That is confirmed by reading recital 18 of Directive 2000/78, from which it emerges that the directive is intended to apply to the police, prison and emergency services. Furthermore, the Court has on several occasions held that Directive 2000/78 applies to the police forces. (16) That fact shows, in so far as it is necessary, that the exception under Article 3(4) of Directive 2000/78 should be interpreted restrictively.
62. On the other hand, I should emphasise that Directive 2000/78 is very broad in scope, so that it catches the widest variety of discrimination, in the most diverse forms: it applies to both the private and the public sectors, both at the recruitment stage and on termination of a contract, and it also applies to working conditions and remuneration. (17) Allowing an extensive exception to its application would therefore be contrary to the spirit and purpose of Directive 2000/78.
63. It is apparent both from the decision to refer and from the observations submitted by the Italian Government and DQ during the proceedings and at the hearing that DQ, whilst it carries on activities associated with protecting national security, is not part of the armed forces of the Italian Republic. Moreover, this case turns entirely on whether DQ’s specific status and the specific nature of its activities can justify unequal treatment on grounds of age.
64. Accordingly, DQ does not fall within the exception under Article 3(4) of Directive 2000/78, and that directive therefore does indeed apply to the dispute in the main proceedings.
2. Determining whether there is discrimination within the meaning of Directive 2000/78
65. I would recall that, as stated in Article 1 of Directive 2000/78, the purpose of that directive is to lay down a general framework for combating discrimination on the grounds of, inter alia, age, as regards employment and occupation, with a view to putting into effect, in the Member States, the principle of equal treatment. Article 2 of Directive 2000/78 defines the principle of equal treatment as requiring that there be no direct or indirect discrimination whatsoever on the grounds of age. Specifically, Article 2(2)(a) of that directive provides that direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on the grounds of, inter alia, his or her age.
66. In order to establish whether the legislation at issue in the main proceedings amounts to discrimination within the meaning of Directive 2000/78, it is therefore necessary, first, to ascertain whether it gives rise to unequal treatment. Secondly, I will determine whether, as DQ and the Italian and Polish Governments maintain, the difference of treatment can be justified in the light of Directive 2000/78, in which case it will not constitute discrimination within the meaning of that directive.
(a) The existence of unequal treatment
67. The fact that the national legislation at issue in the main proceedings gives rise to a difference of treatment based directly on age is, to my mind, beyond doubt and, moreover, is not contested by the parties.
68. Indeed, the effect of the DPCM is that, in comparable situations, DQ’s pilots aged over 60 years are treated less favourably than that company’s younger pilots, since their employment relationship with DQ ends automatically as soon as they reach the age of 60 years, and for that reason alone. Such legislation quite clearly operates a difference of treatment based directly on age, within the meaning of Article 1 read in conjunction with Article 2(2)(a) of Directive 2000/78. (18)
(b) The possible derogations
69. Directive 2000/78 establishes three derogations, (19) under which a difference of treatment based directly on age will nevertheless not be treated as discrimination within the meaning of that directive.
70. Two of those derogations, set out in Articles 2(5) and 4(1) of Directive 2000/78, are common to all the grounds of discrimination and are not specific to differences of treatment based on age. Accordingly, Article 2(5) of that directive provides that a measure laid down by national law and necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others is not discrimination within the meaning of that directive. Article 4(1) of Directive 2000/78 also establishes that a difference of treatment based on a characteristic related to age, amongst other grounds, is not discrimination within the meaning of that directive where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement.
71. Article 6(1) of Directive 2000/78 also establishes a specific derogation relating to discrimination on grounds of age, (20) for measures that are objectively and reasonably justified, within the context of national law, by a legitimate aim, including legitimate employment policy, labour market and training objectives.
72. Before examining whether unequal treatment such as that affecting DQ’s pilots could be justified, I will return to how those three derogations interrelate, in order to determine which might justify the measure at issue in the main proceedings.
(1) How the various derogations interrelate depending on the aim pursued by the measure
73. It is apparent from the Court’s case-law that the aim pursued by the measure at issue in the main proceedings must be identified, in order to determine the provisions of the directive by reference to which that measure must be examined. (21) In other words, whether or not the derogations apply depends on the aim pursued by the measure giving rise to unequal treatment.
74. As the referring court indicates, the provisions of the DPCM establishing the age limit for DQ’s pilots were laid down with the aim of ensuring that DQ’s flights had an adequate level of safety, in the interests of national security. The legislation at issue in the main proceedings therefore pursues a dual aim: guaranteeing air traffic safety and protecting national security.
75. The aim of guaranteeing air traffic safety can be related to the protection of public security within the meaning of Article 2(5) of Directive 2000/78 and can also constitute a legitimate objective within the meaning of Article 4(1) of that directive, capable of justifying a derogation from the principle of equal treatment. (22) The same finding must be made as regards protecting national security, since measures intended to ensure the smooth operation and success of State secret service missions are undeniably measures of a nature to ensure public security. Articles 2(5) and 4(1) of Directive 2000/78 can therefore be relied upon to justify the different treatment of DQ’s pilots who have reached the age of 60 years. (23)
76. However, I believe that the derogation provided for in Article 6(1) of Directive 2000/78 is irrelevant in the present case, in the light of the aims pursued by the legislation at issue in the main proceedings. That article lays down a list of aims that a measure must pursue in order to benefit from the derogation. Although that list is admittedly not exhaustive and is purely illustrative, (24) as evidenced by the EU legislature’s use of the word ‘include’, that circumstance does not mean that any kind of aim whatsoever can be invoked under that article. The Court has already held that the aims which may be considered legitimate within the meaning of Article 6(1) of Directive 2000/78 are social policy objectives. (25) In particular, in Prigge and Others, it held that the aim of air traffic safety cannot be a legitimate aim within the meaning of that article. (26)
77. I see no reason to revisit the Court’s interpretation of Article 6(1) of Directive 2000/78. On the contrary, I believe that to accept aims unconnected with social policy as legitimate aims within the meaning of that article would unjustifiably extend an exception to the principle of equal treatment beyond the limits laid down by the EU legislature.
78. Accordingly, the legislation at issue in the main proceedings, to the extent that it pursues an objective of guaranteeing air traffic safety, as is explicitly apparent from the judgment in Prigge and Others, (27) cannot be justified on the basis of Article 6(1) of Directive 2000/78. Likewise, since the aim of protecting national security is not a social policy aim, it cannot be a legitimate aim within the meaning of that article.
79. I am therefore of the view that the difference of treatment to which the national legislation gives rise can only be justified on the basis of Articles 2(5) and 4(1) of Directive 2000/78, provided, however, that the conditions for them to apply are satisfied.
(2) The conditions for the derogations to apply
80. I will set out first why I consider that Article 2(5) of Directive 2000/78 cannot be interpreted as justifying a measure such as that at issue in the main proceedings. Secondly, I will demonstrate that, as regards now Article 4(1) of that directive, the principle of equal treatment can be derogated from in the situation in the present case.
(i) Article 2(5) of Directive 2000/78
81. In accordance with Article 2(5) of Directive 2000/78, a measure which, whilst it operates a difference of treatment based on age, is nevertheless necessary, in a democratic society, to protect public security will not constitute discrimination within the meaning of that directive, provided, nevertheless, that the measure is laid down by national law. (28)
82. The requirement that the measure be laid down by national law is specific to the derogation under Article 2(5) of Directive 2000/78. Neither Article 4(1) nor Article 6(1) of that directive imposes any such requirement. By means of that additional requirement, the EU legislature therefore intended to make application of Article 2(5) of Directive 2000/78 subject to even stricter conditions than those for application of the other derogations under that directive. (29) Accordingly, unlike Articles 4(1) and 6(1) of Directive 2000/78, Article 2(5) of that directive refers to a specific legal instrument, (30) that is to say, national law.
83. Further, since it derogates from the principle of non-discrimination, Article 2(5) of Directive 2000/78, including the requirement that the measure must be laid down by national law, must be interpreted strictly. A decision to make derogations of that kind from equal treatment in relation to employment and working conditions, in accordance with the terms established in Article 2(5) of Directive 2000/78, is a matter for the national legislature, and must be apparent from a specific legislative provision.
84. I am therefore of the view that the concept of ‘national law’ within the meaning of Article 2(5) of Directive 2000/78 must be construed strictly. In other words, national law within the meaning of that article, as an express requirement specific to Article 2(5) of Directive 2000/78, is a law within the formal sense. (31) A legislative act, adopted by a legislative body, is therefore national law within the meaning of that article. (32)
85. Whilst the exact nature of the DPCM has been the subject of debate between the parties, and whilst it is a matter for the national court to determine, it nevertheless emerges from the observations made by the parties at the hearing that the legislation at issue in the main proceedings is not under any circumstances a law in the formal sense, in so far as it was not adopted by a legislative body, a matter which will nevertheless be for the referring court to determine.
86. I therefore do not believe that the legislation at issue in the main proceedings can be regarded as a measure laid down by national law within the meaning of Article 2(5) of Directive 2000/78.
87. Accordingly, that article cannot serve as a basis for justifying the unequal treatment arising from the legislation at issue in the main proceedings.
(ii) Article 4(1) of Directive 2000/78
88. Under Article 4(1) of Directive 2000/78, a difference of treatment which is based on a characteristic related to age does not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.
89. There is now well established case-law interpreting Article 4(1): (33) several conditions must be satisfied in order for the difference of treatment not to amount to discrimination within the meaning of that article.
90. First, the difference of treatment must be based on a characteristic related to, inter alia, age, and that characteristic must be a ‘genuine and determining … requirement’. The Court has indicated that ‘it is not the ground on which the difference of treatment is based but a characteristic related to that ground which must constitute a genuine and determining occupational requirement’. (34) Secondly, the objective pursued must be legitimate. Thirdly, the requirement must be proportionate.
91. As regards the second condition, I have already explained in paragraph 75 of this Opinion that the objectives pursued by the legislation in question in the main proceedings, that is to say, guaranteeing air traffic safety and protecting national security, could be regarded as legitimate objectives within the meaning of Article 4(1) of Directive 2000/78. I therefore only need to examine the first and last of those conditions.
92. Initially, it is necessary to determine, first, whether the difference of treatment between DQ’s pilots aged less than 60 years and those over 60 years is based on a characteristic related to age and, secondly, whether that characteristic can be regarded as a genuine and determining occupational requirement. I believe that Prigge and Others (35) offers useful guidance in that respect. (36)
93. In that judgment the Court held that it is essential that airline pilots possess particular physical capabilities in so far as physical defects in that profession may have significant consequences. It is also undeniable that those capabilities diminish with age. It follows that possessing particular physical capabilities may be considered as a genuine and determining occupational requirement for acting as an airline pilot and that the possession of such capabilities is related to age. (37)
94. In my view, the same finding must apply to the pilots of airlines engaged in tasks associated with protecting national security. The special nature of the tasks of DQ’s pilots does not alter the finding that their physical capabilities diminish with age, or the significant consequences that a physical defect could have in that profession. (38)
95. The difference of treatment operated by the legislation at issue in the main proceedings must therefore be considered to be based on a characteristic related to age that constitutes a genuine and determining occupational requirement within the meaning of Article 4(1) of Directive 2000/78.
96. As regards, thereafter, the requirement that the difference must be proportionate, recital 23 to Directive 2000/78 states that it is only in ‘very limited circumstances’ that a difference of treatment may be justified where a characteristic related, inter alia, to age constitutes a genuine and determining occupational requirement. (39) That recital also reflects the principle that, since it is a derogation from the principle of non-discrimination, Article 4(1) of Directive 2000/78 must be interpreted strictly. (40) Furthermore, in Petersen and Prigge and Others, which concern the automatic termination of employment relationships on the basis of age before the person concerned has reached the retirement age generally established in national law, (41) the Court held that the measure did not satisfy the proportionality test. (42)
97. However, in the circumstances at issue in the main proceedings, it does not seem obvious to me that the age limit for DQ’s pilots and the consequences of that limit are necessarily disproportionate. I will set out below, first, why I do not believe that the approach adopted in Petersen (43) and Prigge and Others, (44) on the proportionality of the measure, can be transposed to the present case. Secondly, I will explain in what respects I believe that national legislation such as that at issue in the main proceedings, which sets 60 years as the maximum age limit for pilots to perform their duties at DQ, may be proportionate, which question will be for the referring court to determine.
98. My view is that the approach adopted in Petersen (45) and Prigge and Others (46), that is to say, that the measure imposing automatic termination of the employment relationship beyond a certain age was disproportionate, can be explained above all by the fact that the measure was inconsistent. In Prigge and Others (47) the Court held that to fix ‘at 60 years the age limit from which airline pilots … are considered as no longer possessing the physical capabilities to carry out their occupational activity, while national and international legislation authorise the carrying out of that activity, under certain conditions, until the age of 65 years’ constitutes a disproportionate requirement. Similarly, in Petersen, (48) according to the Court ‘that measure lacks consistency because of [an] exception’ and, in that case, ‘the age limit imposed … is not necessary for the protection of health’. In other words, in both those judgments the legislation in question was found to be disproportionate because it did not genuinely reflect the concern to attain the objective in a consistent and systematic manner, (49) since it was still possible to practise the same profession in other entities beyond the maximum age set in that legislation.
99. However, to my mind, the legislation at issue in the main proceedings is not inconsistent in such a way that it does not reflect the concern to attain in a consistent and systematic manner the objectives of guaranteeing air traffic safety and protecting national security. First, unlike in the field of commercial aviation, there are, to my knowledge, no standards of reference in national law — which is for the referring court to determine —, or in international law, capable of undermining the consistency of the decision to fix at 60 years the maximum age of pilots carrying on activities associated with national security within DQ. Nor is it apparent from the decision to refer that there are any exceptions to the rule at issue, such as to cast doubt on its consistency, which will nevertheless be a matter for the referring court to determine.
100. I am therefore of the view that the approach that the Court took in Petersen (50) and Prigge and Others (51) cannot be transposed to the legislation at issue in the main proceedings without further analysis.
101. It is therefore necessary to examine whether that legislation is proportionate. That calls for examination of whether that maximum age limit is appropriate for achieving the objective pursued and does not go beyond what is necessary to achieve it. (52)
102. In that regard, I must clarify that it is indeed ultimately for the national court, which has sole jurisdiction to assess the facts and interpret national legislation, to determine whether and to what extent the legislation at issue in the main proceedings meets those requirements. Nevertheless, in order to provide an answer of use to the national court, the Court of Justice may provide guidance, based on the file in the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment in the particular case pending before it. (53) I will therefore address that point in the discussion that follows.
103. The fact that the legislation is appropriate does not appear to me to be disputed. As I have noted, since pilots’ physical capabilities diminish with age, it is appropriate, in order to attain the objectives of guaranteeing air traffic safety and protecting national security, to fix a maximum age beyond which DQ’s pilots can no longer carry on their activities.
104. The more salient issue is whether that measure does not go beyond what is necessary to attain those two objectives. The parties have, moreover, exchanged arguments on that point, with Mr Cafaro arguing that merely by restricting the conditions for carrying out his tasks would have been sufficient to attain the objectives pursued by the legislation in question, and that automatic termination of his employment relationship is therefore disproportionate. Mr Cafaro contends in particular that he could have been part of a multi-pilot crew, in which only one of the two pilots could be over 60 years.
105. However, I do not consider that a less restrictive measure would attain the objectives of guaranteeing air traffic safety and protecting public security in the same way as automatic termination of the employment relationship.
106. DQ employs only a very small number of pilots and has an even smaller number of aircraft. DQ and the Italian Government emphasised the special arrangements for performance of DQ’s tasks, which are not comparable to civil aviation flight operations. Under those circumstances, whose accuracy will nevertheless be for the referring court to verify, to oblige DQ to continue to employ pilots aged over 60 years, performing tasks accompanied by a pilot under 60 years, would mean not only that DQ would be constrained in the performance of its tasks by requisite composition of crews, but that performance of its tasks could become more difficult. Accordingly, both the objective of guaranteeing air traffic safety and that of protecting national security would be jeopardised.
107. Moreover, the fact that the measure entails a DQ pilot’s employment contract being terminated automatically because the pilot has reached the age of 60 years does not necessarily mean that the measure goes beyond what is necessary to attain the objectives pursued. (54) It is apparent from the observations of the parties at the hearing that DQ’s structure made it impossible to reinstate Mr Cafaro within that company in a position other than that of a pilot, which will nevertheless be for the referring court to verify.
108. In so far as less restrictive rules would not make it possible to attain the objectives pursued, I am of the view that the legislation at issue in the main proceedings does not go beyond what is necessary to attain the objectives of guaranteeing air traffic safety and protecting national security.
109. It therefore appears that national legislation such as that at issue in the main proceedings, which fixes 60 years as the maximum age limit for performing the tasks of a pilot in a company that carries on activities associated with protecting national security, can be considered, first, as appropriate to the aim of guaranteeing air traffic safety and protecting national security and, secondly, as not going beyond what is necessary to attain that objective, as a result, in particular, of that company’s limited resources, a matter which will nevertheless be for the referring court to verify.
V. Conclusion
110. In the light of the foregoing, I propose that the questions referred for a preliminary ruling by the Corte suprema di cassazione (Supreme Court of Cassation, Italy) should be answered as follows:
(1) Commission Regulation (EU) No 1178/2011 of 3 November 2011 laying down technical requirements and administrative procedures related to civil aviation aircrew pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council, as amended by Commission Regulation (EU) No 290/2012 of 30 March 2012, does not apply to the situation at issue in the main proceedings.
(2) Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding legislation such as that at issue in the main proceedings according to which the employment relationship of pilots employed by a company operating aircraft used for activities associated with protecting the national security of the Member State terminates automatically as soon as they reach the age of 60 years where, as a result of that company’s limited resources, less restrictive measures would not make it possible to attain the objectives pursued by that legislation, which is nevertheless a matter to be determined by the referring court.