AGE CONCERN ENGLAND - Case C-388/07, The Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform

1. Introduction

The judgments of the European Court of Justice (hereinafter “ECJ”) are not often covered by media. With an exception, there are some cases that have a great impact in everyday life of nationals of the European Union (hereinafter “EU”). One of such cases is the long-awaited Age Concern England,¹ which is significant for confirming that Directive 2000/78/EC of 27 th November 2000 (Employment Equality Directive, hereinafter “Directive”) prohibits discrimination on grounds of age.

On 5th March 2009, the ECJ referred a decision back to the High Court after clarifying that social policy objectives “such as those related to employment and the labour market” may be considered legitimate under EC law. This means that employers can still lawfully dismiss employees at the age of 65. In the context of Directive, the present case both covers personal scope (the Directives apply to all persons: natural and legal, in the EU regardless of nationality, public and private sector)² and material scope (question if retirement ages covered by Directive).³

In fact, Age Concern England case “enriches case law of discrimination on grounds of age, especially on the obligations of the Member States (hereinafter, “MS”) in respect of the prohibition of discrimination on grounds of age laid down in Article 2 (hereinafter - “Art.”) of Directive, particularly the degree with which that prohibition must be transposed into national law.”⁴ Moreover, Age Concern England continues case law of earlier cases involving arguments regarding discrimination on grounds of age, for example, Mangold ⁵ , Lindorfer ⁶ , Palacios de la Villa ⁷ and Bartsch. ⁸

Opinions among employment lawyers and other experts differ regarding the implications of the Age Concern England judgment. For employers, generally, this is a good decision; they can dismiss employees if they wish to. On balance, this is crucial judgment for workers aged 65 and over. There are approximately ten thousand people aged 65 that are forcibly dismissed every year in United Kingdom (hereinafter “UK”).⁹

2. Facts and legal issues

The background of Age Concern England is related to fact that the age discrimination aspects of the Directive were implemented in the UK on 1st October 2006 by means of the Employment Equality (Age) Regulations (hereinafter - “Regulations”). This does not mean employees have to stay in work until 65 but it means employers will no longer be allowed to force someone to dismiss unless objectively justified.

However, Age Concern England argued that the Regulations discriminated against older employees by introducing mandatory retirement age at 65. After a lengthy legal process in the UK, the case was referred to the ECJ. On 24th July of 2007 the High Court requested a preliminary ruling from the ECJ seeking to ascertain “whether the Directive precludes national legislation intended to transpose the age discrimination provisions of the Directive which allows employers, subject to certain conditions, forcibly to retire workers aged 65 and over.”¹⁰ The High Court having doubts about the interpretation of Directive on the following questions:

“1. National retirement ages and the scope of the directive:
(i) Does the scope of the directive extend to national rules which permit employers to dismiss employees aged 65 or over by reason of retirement?
(ii) Does the scope of the directive extend to national rules which permit employers to dismiss employees aged 65 or over by reason of retirement where they were introduced after the directive was made?
(iii) In the light of the answers to (i) and (ii) above
(1) were section 109 and/or 156 of the 1996 Act, and/or
(2) are Regulations 30 and 7, when read with Schedules 8 and 6 to the Regulations, national provisions laying down retirement ages within the meaning of Recital 14?

2. The definition of direct age discrimination: justification defense

(iv) Does Art. 6(1) of the directive permit MS to introduce legislation providing that a difference of treatment on grounds of age does not constitute discrimination if it is determined to be a proportionate means of achieving a legitimate aim, or does Art. 6(1) require MS to define the kinds of differences of treatment which may be so justified, by a list or other measure which is similar in form and content to Art. 6(1)?

3. The test for the justification of direct and indirect discrimination

(v) Is there any, and if so what, significant practical difference between the test for justification set out in Art. 2(2) of the directive in relation to indirect discrimination, and the test for justification set out in relation to direct age discrimination at Art. 6(1) of the directive? ”

By Questions (i), (ii) and (iii), the High Court seeks to ascertain whether national rules on retirement ages such as the Regulations, which permit dismiss by reason of retirement of a person aged 65 and over, fall within the scope of Directive. (AG opinion para. 26) By Question (iv), the High Court essentially seeks to know whether Art.6(1) of the Directive permits a general justification of differences of treatment on grounds of age, such as that provided for by Regulation 3, or whether it requires MS to specify the kinds of differences of treatment which may be justified by means of a list or other measure which is similar in form and content to the list in Art. 6(1). (AG opinion para. 36) By question (v), the referring Court seeks guidance whether Regulations, in so far as they permit employers to dismiss employees aged 65 or over if the reason for dismissal is retirement, are justified under Art. 6(1) of the Directive and whether there is any practical difference between the tests for justification set out in Art. 2(2) and Art. 6(1) of the Directive. (AG opinion para. 58)¹¹

3. Opinion of Advocate General (hereinafter “AG”) Jan Mazák

AG Mazák began his opinion with questions (i) to (iii) about Directive applicability to national rules and mandatory age of dismissal at age 65 (see para. 35). According to wording of Art. 249 EC indicates that MS can freely choose the ways and means of implementing the Directive.

,,According to the case law of the ECJ, the degree of flexibility thus left to MS in the implementation of directives also implies that transposition into national law does not necessarily require legislative action in each MS. The ECJ has repeatedly held that it is not always necessary formally to enact the requirements of a directive in a specific express legal provision, since the general legal context may be sufficient for implementation of a directive, depending on its content.” (para. 45)

Question (iv) refers to ,,legislative technique” in the transposition of Art. 6(1) of Directive rather than with its material scope, therefore AG mentions some basic principles concerning the extent of the MS obligation to transpose Directive. (see para. 44) The MS are obliged to take all the measures necessary to ensure that the directive is fully effective, in accordance with the objective it pursues. (see para. 46) AG concludes that Regulation 3 does not determine the scope of the prohibition under national law of age discrimination in employment and occupation in isolation from other rules governing particular situations and aspects such as Regulation 30 about mandatory retirement, (para. 55) therefore national legislation such as Regulation 3 is compatible with Art. 6(1) of Directive because it does not contain a specific list of permissible forms of treatment. (see para. 56)

AG Mazák proposes that question (iv) should be answered whether Art. 6(1) of Directive permits MS to impose legislation of different treatment on grounds of age. This does not constitute discrimination whether it is determined as proportionate means of legitimate aim within the meaning of Art. 6(1) (see para. 57)

By question (v), the High Court seeks guidance how to ascertain whether Regulations 7(4), 7(5) and 30 of the Regulations, in so far as they permit employers to dismiss employees aged 65 or over if the reason for dismiss is retirement, are justified under Art. 6(1) of Directive. AG put question is there any practical difference between the tests for justification set out respectively in Art. 2(2) and Art. 6(1) of the Directive. (see para. 58) In the meaning of Art.

13 EC, Art. 1 of Directive identifies age as criteria on which differentiations in law may in principle not be based, that is, unless it is established that such differentiation is objectively justified. (see para. 70)

,,(..) differences in treatment based, directly or indirectly, on those grounds are accordingly in principle ,,suspect”, and may constitute unlawful discrimination, although it follows from the possibilities of justification provided for by Art. 2 of the directive that that need not be so” (para. 71)

AG concludes that it is ,,essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited”. (see para. 72)

”Age (..) in (...) Art. 6(1) contains a specific justification for differences of treatment on grounds of age ,,if, within the context of national law, they are objectively and reasonably justified by a legitimate aim (..)” (para. 73)

AG emphasizes the unique and specific nature of discrimination on grounds of age: first, age is not by its nature a ,,suspect ground”, but as fluid as a criteria, second, it is hard to establish where justifiable differentiations on the basis of age are ending and unjustifiable discrimination is starting, third, the possibilities of justifying differences of treatment based on age are more extensive than those based on the other grounds (see paras. 74-75). However, the Directive should not to be interpreted as putting age discrimination at the bottom of a perceived,,hierarchy” of discrimination grounds under the Directive. It constitutes an expression of the material differences between those grounds and in the way they function as legal criteria.

[...]

¹ In media ,,Heyday” comes from membership association Heyday, division of the charity Age Concern England

² Waplak, Sergiusz (2006) EU Anti-discrimination Policies (Employment, Social Affairs and Equal Opportunities DG EC) http:// www.era.int/web/de/resources/5_2341_3138_file_en.4559.pdf, [19.05.2009]

³ Notes from lecture of course “Social non-discrimination law”, Europainstitut Basel, 26.03.2009.

⁴ AG Mazák (2008): Case C-388/07 The Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do? uri=CELEX:62007C0388:EN:HTML, [01.05.2009]

⁵ Mangold (C-144/04 [2005] ECR I-9981) deals with employment conditions, pre-implementation obligations and general principles of EU law. In this case Mr. Mangold, 56 year old, was employed on a fixed term contract. The provisions of German legislation made it easier, to the specific detriment of employees over the age of 52 for employers to terminate their fixed-term contracts even where there was “no objective justification for limiting the duration of the contract“. Mr. Mangold argued that the German legislation contravened the principles of the Equal Treatment Framework Directive 2000/78/EC as it was clearly age discriminatory. The ECJ ruled that the provisions were in contravention of the Directive. Although the ECJ accepted that “the period prescribed for transposition of the Directive” had not expired it was held that in the period leading up to the incorporation of the Directive, MS “must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive“. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62004J0144:EN:HTML, [06.03.2009]

⁶ Lindorfer (C-227/04 [2006] ECR I-6767) deals with transfer payments, equal treatment and discrimination on grounds of sex. Ms Lindorfer took up employment in the Council of the EU. She sought to transfer her benefits in an Austrian pension scheme to the EC pension scheme. The number of years of pensionable service credit she would receive in the EC scheme was calculated by reference to actuarial factors which differed between men and women. She argued that this was contrary to the principle of equal treatment. At first instance, the ECJ rejected Ms Lindorfer's claim, but she has succeeded on appeal. The Court held that women's transfer payments were treated differently to men's transfer payments on grounds of sex and this difference in treatment was not objectively justified. The ECJ stated that higher values for women could not be justified by arguing that they were necessary for the financial management of the scheme – particularly since the scheme required identical contributions from male and female members. The ECJ concluded that the Council had infringed the principle of non-discrimination on account of sex as well as the specific regulations which apply to the employment of officials. (Pinsent Masons Pensions’ Group (2007): Pensions law at a glance, p.3, http://www.pinsentmasons.com/media/1406884746.pdf, [07.03.2009])

⁷ Palacios de la Villa (C-411/05 [2007] ECR I-8531) deals with retirement age and direct discrimination Mr. Palacios de la Villa’s employer, Cortefiel, notified him that his employment was being automatically terminated on the grounds that he had reached the compulsory retirement age provided in a collective agreement – age of 65. Although Mr. Palacios de la Villa claimed that his employer’s requirement to retire was a breach of his fundamental rights and discriminated against him on the grounds of age. The ECJ ruled that national rules on mandatory retirement felt within the scope of the Directive‚ and would be unlawful unless they could be objectively justified. (Age Concern (2008): AG gives opinion in Heyday case http://www.ageconcern.org.uk/AgeConcern/EA6312DC6D2D4AF4B1C2A5845272671B.asp , [06.03.2009])

⁸ Bartch (C-427/06 [2008] OJ C301/6) deals with pension, younger spouse and direct discrimination. The company Bosch refused to pay Mrs. Bartch a surviving spouse pension because she was over 15 years younger than her partner. Terms of the company’s pension plan first set out in 1984 and then in 1992 stated “payments will not be made if the widow/widower is more than 15 years younger than the former employee”. Mr. Bartsch was 60 when he died, and had worked at company from 1988 until his death while Mrs. Bartsch was born in 1965 and had married Bartsch in 1986. The ECJ ruled that it can not find there was age discrimination because a prohibition against discrimination on the grounds of age “is not mandatory where the allegedly discriminatory treatment contains no link with EC law”. (IPE (2008): ECJ tackles age discrimination in pensions, http://www.ipe.com/news/ECJ_tackles_age_discrimination_in_pensions_29224.php, [07.03.2009])

⁹ Womack, Sarah (2006): ‘Compensation’ for workers forced to retire. Telegraph, UK News, 23rd November, http://www.telegraph.co.uk/news/uknews/1534948/Compensation-for-workers-for ced-to-retire.html , [07.03.2009].

¹⁰ Opinions ECJ Nr. C-388/07 (2008): www.vlex.com/vid/42896151 [17.03.2009].

¹¹ Case C-388/07: Opinion of AG Mazák delivered on 23 September 2008: www.lex.unict.it/eurolabor/en/documentation/altridoc/ opinion/c388-07.pdf, [17.03.2009].