The Development of EU Case‐Law on Age Discrimination in Employment: ‘Will You Still Need Me? Will You Still Feed Me? When I'm Sixty‐Four’

• DOI: http://doi.org/10.1111/eulj.12042
• Published date: 01 July 2013
• Date: 01 July 2013

The Development of EU Case-Law on Age

Discrimination in Employment: ‘Will You

Still Need Me? Will You Still Feed Me?

When I’m Sixty-Four’*

Elaine Dewhurst**

Abstract: This article addresses the development of age discrimination law in the Court

of Justice and concludes that there is a marked difference in the level of discretion given

to Member States in cases relating to mandatory retirement policies. The article will

critique the approach of the Court of Justice to the legitimate objective test and the

proportionality test in retirement cases. It will also argue that the decisions of the Court

of Justice to date have all involved cases with very similar factual scenarios, and the

article hypothesises how a different conclusion might be reached in cases with different

factors. It also considers the impact of the Charter of Fundamental Rights on such cases.

The article concludes by arguing that mandatory retirement policies may no longer be

compatible with EU law and that there is a need to move towards more f‌lexible retire-

ment policies.

I Introduction

Fifty per cent of the age discrimination cases before the Court of Justice involve

workers who are over the age of 60 years. The majority of these cases (almost 90%)

involve the issue of retirement age, and none of these cases have been successful

before the Court of Justice. This contrasts sharply with the success rate of approxi-

mately 45% for cases involving younger workers and terms and conditions of employ-

ment. So what are the reasons for the divergences in the case-law, what interests are

being best served by the decisions of the Court of Justice, and how could (or should)

this divergence be rectif‌ied?

* ‘When I’m Sixty-Four’ (Lennon/McCartney) © 1967 Sony/ATV Music Publishing LLC.

** Postdoctoral research fellow with the Max Planck Institute for Social Law and Policy in Munich

funded by the MaxNetAging Research School, Max Planck Institute for Demographic Research,

Rostock, Germany. I would like to thank Professor Dr Ulrich Becker, Director of the Max Planck

Institute for Social Law and Policy for his support in writing this article and Mr John Cotter,

Visiting Scholar at the University of Rostock, for his many fruitful comments on the earlier draft of

this article. I would also like to thank the two anonymous reviewers of this article for their insightful

and helpful comments.

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European Law Journal, Vol. 19, No. 4, July 2013, pp. 517–544.

© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

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This article will attempt to address these concerns through an analysis of the

case-law of the Court of Justice relating to the issue of age discrimination. First, the

article will assess some statistical trends emerging from the case-law including the age

groups most likely to take a case, whether there is a gender differential in the case-law,

the types of workers involved, the Member States most active in this area and the

main areas of employment that are targeted. Second, the article will examine the

initial approach of the Court of Justice in relation to age discrimination cases during

which the position of the prohibition of age discrimination was solidif‌ied and

strengthened in EU law. Third, the article will analyse the court’s interpretation of

EU law provisions on age discrimination by means of the structure normally adopted

by the court. Four stages will be identif‌ied: stage 1 which relates to the scope and

application of the Directive, stage 2 which examines whether a difference in treatment

has occurred, stage 3 which involves an examination as to whether the measure

adopted by the particular Member State was adopted for some legitimate objective

and stage 4 which involves an examination of the proportionality of the measure.

Finally, this is followed by a reconsideration of the doctrine of proportionality in

mandatory retirement cases in light of arguments based around pension levels, the

importance of f‌lexibility and less intrusive measures and the right to earn a livelihood.

Four major conclusions arise from this qualitative analysis of the Court of Justice’s

decisions in age discrimination cases. First, it will be submitted that the Court of

Justice affords too much discretion and gives inadequate consideration to the

Member States in identifying legitimate objectives to justify a difference in treatment

on grounds of age during stage 3. Second, it will be submitted that the Court of

Justice shows a remarkably more f‌lexible approach to the issue of proportionality

(stage 4) in retirement cases than it does in other cases and that it rarely considers

arguments relating to less intrusive measures capable of achieving the same aim.

Third, it is submitted that if certain factors were different in a given case relating to

mandatory retirement before the Court of Justice, a different conclusion might be

reached. Three arguments are put forward to support this conclusion. These argu-

ments are based on some of the distinguishing features of the previous cases (which

involved individuals with reasonable pension levels, the skills to f‌ind alternative work

and mandatory retirement ages which were agreed by the individuals through collec-

tive bargaining or at least provided some level of f‌lexibility to the worker) and on the

right to earn a livelihood guaranteed by the Charter of Fundamental Rights (CFR) of

the EU. Finally, it will be concluded that the Court of Justice shows signs that it is

moving towards a more f‌lexible approach in retirement cases and recognition that a

more strict equality model is more in line with the prohibition of age discrimination

and the principle of equality enshrined in Directive 2000/78 (the Directive), the

Treaties and CFR.

II The Judicial Statistics

While accurately measuring the exact levels of age discrimination in employment in

the EU is almost impossible,1some indicators of the increasing incidence of age

1This is due to the statistical diff‌iculties in taking measurements from case-law (as this contains a

selection bias due to the fact that only people who have been allegedly discriminated against will take

a case and also only represents a certain number of the people who have decided to take cases) or from

self-reporting mechanisms.

European Law Journal Volume 19

518 © 2013 John Wiley & Sons Ltd.