ECJ: Qualifying clause blocks age discrimination claims

The European Court of justice has just issued its findings in two age discrimination cases.

* The first case concerned the refusal of the fire service in the German city of Frankfurt am Main to consider a job application for an intermediate career post because the applicant had exceeded the maximum age limit for such a post. The court concluded, however, that "the maximum age for recruitment may be regarded, first, as appropriate to the objective of ensuring the operational capacity and proper functioning of the professional fire service and, second, as not going beyond what is necessary to achieve that objective." (Case C -229/08)

* In the second case the court was asked to rule on whether it was lawful for panel dentists in Germany to be required to retire at age 68. In the court's view the age limitation could be construed as discriminatory because it did not apply to dentists in normal practice. However, it would be up to a national court to decide if such a practice may still be legitimate because its aim was "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." (Case C -341/08).

Both cases illustrate the growing importance of a provision in the EU Equal Treatment Directive (2000/78/EC) which states that discrimination on grounds of age may be lawful where it can be "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". Thus far, there remains insufficient case law at a national level to determine whether employers have successfully argued that the dismissal of older workers is justifiable on the grounds that opportunities need to be opened up for the employment of younger workers.

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