| DISCRIMINATION — Age — Employment conditions — Enforced retirement of employee at age 65 — Whether within unequal treatment in EC Directive — Whether justified by objective of regulating employment over generations — Council Directive 2000/78, arts 2, 6(1)
Palacios de la Villa v Cortefiel Servicios SA (Case C-411/05)
ECJ: President Skouris, Judges Jann, Timmermans, Rosas, Lenaerts, Tizzano, Schintgen, Cunha Rodrigues, Silva de Lapuerta, Ilešič, Lindh, Bonichot and von Danwitz: 16 October 2007
Although a Spanish law permitting compulsory retirement at age 65 gave rise to a difference in treatment directly based on age, as referred to in art 2 of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, it was justified under art 6 as a measure having a legitimate aim relating to employment policy.
Art 1 of Directive 2000/78 states that its purpose is to combat discrimination on the ground of inter alia age; art 2(1) prohibits direct or indirect discrimination on a ground in art 1; art 2(2)(a) defines direct discrimination as occurring where a person is treated less favourably than another in a comparable situation, on a ground in art 1; by art 3(1)(c), the scope of the Directive includes “employment and working conditions, including dismissals”; and art 6 provides: “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 … and if the means of achieving that aim are appropriate and necessary …”
A Spanish Law rendered lawful clauses in collective agreements providing for the termination of employment contracts where workers had reached retirement age and certain pension conditions were satisfied. The claimant, who at the age of 65 was notified by his employer, the defendant, of the automatic termination of his employment on the ground of a provision to that effect in the relevant collective agreement, brought proceedings challenging the dismissal, and the Juzgado de lo Social No 33 de Madrid referred the matter to the European Court for a preliminary ruling.
THE COURT said that Directive 2000/78 did not affect the competence of the member states to determine retirement age, but it did apply to national measures on the termination of employment contracts where the retirement age, thus determined, had been reached. Since legislation such as that at issue directly imposed less favourable treatment for workers who had reached retirement age, as compared with the rest of the workforce, it established a difference in treatment directly based on age, as referred to in art 2(1) and (2)(a). However it appeared that in the present case the compulsory retirement clause was part of a national policy seeking to promote better access to employment by means of better distribution of work between the generations. The fact that that objective was not explicitly stated was immaterial, given that there was abundant contextual material indicating its existence. The legitimacy of such a public interest aim could not reasonably be called in question, and since also it appeared appropriate and necessary, the measure came within art 6(1) of the Directive and therefore was justified.
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