| DISCRIMINATION — Age — Employment — Automatic dismissal at retirement age and non-recruitment of retired persons — Whether contrary to Community law — Employment Equality (Age) Regulations 2006, arts 3, 7, 30 — Council Directive 2000/78/EC on equal treatment in employment, art 6(1)
R (Incorporated Trustees of the National Council on Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform (Case C-388/07); [2009] WLR(D) 82
ECJ: President of Chamber Rosas, Judges Ó Caoimh, Klučka, Lõhmus and Lindh: 5 March 2009
National rules allowing compulsory dismissal at retirement age and non-recruitment of persons of retirement age were not contrary to Community law provided that they were justified by legitimate social policy objectives and were appropriate and necessary for achieving such objectives.
The Third Chamber of the Court of Justice of the European Communities so held, inter alia, on a reference for a preliminary ruling by the High Court (Queen’s Bench Division, Administrative Court).
Reg 3 of the 2006 Regulations defines the circumstances in which a discriminatory practice may be considered to be unlawful as treatment of a person less favourably than other persons where it cannot be shown that the treatment is “a proportionate means of achieving a legitimate aim” (with no examples given). Reg 4 permits employers to discriminate on grounds of age against persons aged 65 or over, in relation to recruitment. Reg 30(2) provides that the Regulations do not render unlawful the dismissal of a person aged 65 or over “where the reason for the dismissal is retirement.” Art 6(1) of Directive 2000/78 provides: “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. Such differences of treatment may include, among others: [three sets of circumstances are set out, in subparas (a)–(b)].
The claimant, a charity, brought proceedings claiming that provisions of the 2006 Regulations were unlawful in that they did not properly transpose Directive 2000/78 and the High Court referred questions that were raised to the Luxembourg Court.
THE COURT, for reasons stated by it, ruled: (1) national rules such as those set out in regs 3, 7(4) and (5) and 30 of the 2006 Regulations fell within the scope of Directive 2000/78. (2) Art 6(1) of Directive 2000/78 did not preclude a national measure which, like reg 3, did not contain a precise list of the aims justifying derogation from the principle prohibiting discrimination on grounds of age. However, art 6(1) offered the option to derogate from that principle only in respect of measures justified by legitimate social policy objectives, such as those related to employment policy, the labour market or vocational training. It was for the national court to ascertain whether the legislation at issue was consonant with such a legitimate aim and whether the national legislative or regulatory authority could legitimately consider, taking account of the member states’ discretion in matters of social policy, that the means chosen were appropriate and necessary to achieve that aim. (3) Art 6(1) gave member states the option to provide, within the context of national law, for certain kinds of differences in treatment on grounds of age if they were “objectively and reasonably” justified by a legitimate aim, such as employment policy, or labour market or vocational training objectives, and if the means of achieving that aim were appropriate and necessary. It imposed on member states the burden of establishing to a high standard of proof the legitimacy of the aim relied on as a justification. No particular significance could be attached to the fact that the word “reasonably” used in art 6(1) of the Directive did not appear in art 2(2)(b) (in art 2, entitled “Concept of discrimination”). |
