Case C-341/08

Domnica Petersen

v

Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe

(Reference for a preliminary ruling from the Sozialgericht Dortmund)

(Directive 2000/78/EC – Articles 2(5) and 6(1) – Prohibition of discrimination on grounds of age – Provision of national law setting a maximum age of 68 for practice as a panel dentist – Aim pursued – Measure necessary for the protection of health – Consistency – Appropriateness of the measure)

Summary of the Judgment

1.        Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on grounds of age

(Council Directive 2000/78, Arts 2(5) and 6(1))

2.        Community law – Principles – Equal treatment – Discrimination on grounds of age – Prohibition – Duty of national courts

1.        Article 2(5) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding a national measure, such as that at issue in the main proceedings, setting a maximum age for practising as a panel dentist, in this case 68 years, where the sole aim of that measure is to protect the health of patients against the decline in performance of those dentists after that age, since that age limit does not apply to non-panel dentists.

Article 6(1) of Directive 2000/78 must be interpreted as not precluding such a measure where its aim is to share out employment opportunities among the generations in the profession of panel dentist, if, taking into account the situation in the labour market concerned, the measure is appropriate and necessary for achieving that aim.

It is for the national court to identify the aim pursued by the measure laying down that age limit, by ascertaining the reason for maintaining the measure.

(see para. 78, operative part 1)

2.        If national legislation setting a maximum age limit for panel doctors, having regard to its objective, were contrary to Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, it would be for the national court hearing a dispute between an individual and an administrative body to decline to apply that legislation, even if it were prior to that directive and national law made no provision for disapplying it.

(see para. 81, operative part 2)