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, 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) and material scope (question if retirement ages covered
by Directive).
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.” Moreover, Age Concern England continues case law of earlier cases involving
arguments regarding discrimination on grounds of age, for example, Mangold, Lindorfer,
Palacios de la Villa and Bartsch.
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”).
Table of Contents
1. Introduction
2. Facts and legal issues
3. Opinion of Advocate General (hereinafter “AG”) Jan Mazák
4. Judgment of the Court of Justice
5. Comment
5.1. Dismissal ages are covered by the Directive
5.2. Directive does not have to be transposed literally into national law
6. Conclusion
Objectives and Topics
This paper examines the landmark European Court of Justice (ECJ) ruling in the Age Concern England case (C-388/07), which addresses the compatibility of national mandatory retirement ages with European Union anti-discrimination law. The analysis focuses on the legal interpretation of Directive 2000/78/EC and whether specific national regulations that permit the dismissal of employees aged 65 and over violate the prohibition of age discrimination.
- Legal scope of Directive 2000/78/EC regarding mandatory retirement
- Justification tests for direct and indirect age discrimination
- Member States' discretion in implementing EU employment directives
- Comparison with previous ECJ jurisprudence like Palacios de la Villa and Mangold
- The impact of ECJ rulings on national employment and social policy
Excerpt from the Book
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)
Chapter Summaries
1. Introduction: This chapter introduces the Age Concern England case and its significance in affirming that Directive 2000/78/EC prohibits discrimination on the grounds of age.
2. Facts and legal issues: This section details the background of the UK's Employment Equality (Age) Regulations 2006 and the specific questions referred to the ECJ by the High Court regarding retirement age and justification.
3. Opinion of Advocate General (hereinafter “AG”) Jan Mazák: The chapter summarizes the AG's legal opinion regarding Member State flexibility in transposing the Directive and the criteria for justifying age-based differences in treatment.
4. Judgment of the Court of Justice: This section outlines the ECJ's ruling, confirming that mandatory retirement falls within the scope of the Directive and must satisfy objective justification tests.
5. Comment: This chapter provides a critical analysis of the ruling, specifically focusing on the coverage of dismissal ages and the principles of transposition into national law.
5.1. Dismissal ages are covered by the Directive: An examination of how statutory retirement ages relate to the general principle of non-discrimination and established ECJ case law.
5.2. Directive does not have to be transposed literally into national law: A discussion on the limits of Member State discretion and the responsibility of national courts to ensure the effectiveness of EU law.
6. Conclusion: The final chapter reflects on the case's implications, noting the complexity of age discrimination law and the potential for future legal evolution in this field.
Keywords
Age discrimination, European Court of Justice, Directive 2000/78/EC, Age Concern England, mandatory retirement, employment law, proportionality, justification test, European Union, labour market, non-discrimination, national law, Palacios de la Villa, Mangold, legal implementation.
Frequently Asked Questions
What is the core subject of this paper?
The paper analyzes the Age Concern England case (C-388/07) and its impact on the interpretation of EU anti-discrimination law regarding mandatory retirement at age 65.
Which central topics are addressed?
Central topics include the material and personal scope of Directive 2000/78/EC, the criteria for objective justification of age discrimination, and the transposition of EU directives into national law.
What is the primary research objective?
The objective is to evaluate how the ECJ ruling clarifies the legitimacy of national retirement policies and the extent to which employers can rely on age-based dismissal rules under European law.
Which scientific methodology is applied?
The work utilizes a legal analysis of the ECJ judgment, the Advocate General's opinion, and a review of relevant precedents such as the Mangold and Palacios de la Villa cases.
What topics are discussed in the main section?
The main section covers the facts of the case, the legal issues referred to the court, the Advocate General's interpretation of "legislative technique," and the final ECJ ruling on proportionality and justification.
Which keywords characterize this paper?
Key terms include age discrimination, Directive 2000/78/EC, retirement age, proportionality, ECJ jurisprudence, and objective justification.
How does the ECJ distinguish between direct and indirect discrimination?
The ECJ concluded in this case that the justification tests for direct and indirect discrimination should be substantially the same, focusing on whether a measure is "objectively and reasonably" justified.
What does the ruling imply for employers?
The ruling clarifies that while employers may have a degree of flexibility, they must demonstrate that mandatory retirement rules serve a legitimate employment or social policy aim and are proportionate.
- Citation du texte
- Karina Oborune (Auteur), Ibragim Zalel (Auteur), Ibragim Zalel (Auteur), 2009, 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, Munich, GRIN Verlag, https://www.grin.com/document/157903
