Last Updated on August 11, 2019 by LawEuro
Handbook on European non-discrimination law – Contents
Key points
- Under EU law there are specific exceptions to direct discrimination, which are tailored to the context of field of protection.
- The specific exceptions include:
- genuine occupational requirements;
- exceptions in relation to religious institutions;
- exceptions particular to age discrimination.
As noted above, under the non-discrimination directives a specific set of grounds of justification exist allowing differential treatment to be justified in a limited set of circumstances. The ‘genuine occupational requirement’ exception is present in each of the directives[226] (except the Gender Goods and Services Directive, since it does not relate to employment). The requirement allows employers to differentiate against individuals on the basis of a protected ground where this ground has an inherent link with the capacity to perform or the qualifications required for a particular job.[227] The other two exceptions are found only in the Employment Equality Directive (2000/78/EC)[228]: first, the permissibility of discrimination based on religion or belief by employers who are faith-based organisations;[229] and second, the permissibility of age discrimination in certain circumstances.[230] The strict approach of the CJEU to interpreting exceptions to differential treatment suggests any exceptions will be interpreted narrowly, since it places emphasis on the importance of any rights created for individuals under EU law. [231]
Additionally, Article 2 (5) of the Employment Equality Directive introduced an exception from the prohibition of discrimination for reasons related to the protection of public safety. The provision was intended to prevent and arbitrate a conflict between the principle of equal treatment on the one hand, and the necessity of ensuring public order, security and health, the prevention of criminal offences and the protection of individual rights and freedoms on the other hand. All of these are necessary for the functioning of a democratic society. Article 2 (5) as an exception to the principle of the prohibition of discrimination must be interpreted strictly. The CJEU held, for instance, that measures which aim to avoid aeronautical accidents by monitoring pilots’ aptitude and physical capabilities to ensure that human failure does not cause accidents are covered by Article 2 (5) of the Directive. It found, however, that a provision prohibiting pilots from continuing to work after the age of 60 was disproportionate.[232] It also held that a provision providing for an age limit of 60 yearsfor admission as a dentist under statutory health insurance schemes may be regarded as compatible with Article 2 (5) of the Directive, if it was to prevent a risk of serious harm to the financial balance of the social security system to achieve a high level of protection of health.[233]
3.3.1. Genuine occupational requirement
According to the non-discrimination directives, in so far as they deal with the sphere of employment:
“Member States may provide that a difference in treatment based on a characteristic related to [the protected ground] shall not constitute discrimination where, by reason of the nature of the particular occupa- tional activities concerned or the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.”[234]
This justification allows employers to differentiate between individuals on the basis of a protected characteristic, where this characteristic is directly related to the suitability or competence to perform the duties required of a particular post.
Example: In Mario Vital Pérez v. Ayuntamiento de Oviedo[235] (discussed in Section 5.5), the dispute concerns an age limit of 30 years for the recruitment of local police officers. The CJEU confirmed that the possession of particular physical capacities may be regarded as a ‘genuine and determining occupational requirement’ within the meaning of Article 4 (1) of the Employment Equality Directive (2000/78/EC). Moreover, it noted that “the possession of particular physical capacities is one characteristic relating to age”.[236] In this case, the CJEU concluded, however, that the age limit was disproportionate.[237]
There are well established occupations that fall under the genuine occupational requirement derogation: in Commission v. Germany, the CJEU, relying on a Commission survey on the ambit of the derogation in relation to sex discrimination, indicated particular professions where the exception was likely to be applicable.[238] Particular attention was given to artistic professions, which may require particular attributes that belong to individuals as inherent characteristics, such as requiring a female singer to fit with a taste in performance style, a young actor to play a particular role, an able-bodied individual to dance, or men or women for particular types of fashion modelling. However, this was not an attempt at providing an exhaustive list. Other examples might include employing an individual of Chinese ethnicity in a Chinese restaurant to maintain authenticity, or the employment of women in women-only fitness clubs.
Example: In Commission v. France, [239] the CJEU found that in certain circumstances it is not unlawful to reserve employment positions primarily for male candidates in male populated prisons and for female candidates in female populated prisons. However, this exception could only be used in relation to posts that entailed those activities where being of a particular sex was relevant. In this case, the French authorities wished to retain a percentage of posts for male candidates, as there may arise a need for the use of force to deter potential troublemakers, along with other duties for which male employees were deemed to be more suitable. Although the CJEU accepted the arguments in principle, the French authorities failed to satisfy the requirement of transparency regarding specific activities that would need to be fulfilled by male candidates only; generalisations of sex suitability will not suffice.
Example: In Johnston v. Chief Constable of the Royal Ulster Constabulary,[240] a female police officer working in Northern Ireland complained that her contract was not renewed. The Chief Constable justified this on the grounds that female officers were not trained in the handling of firearms and this was on the basis that “in a situation characterised by serious internal disturbances the carrying of firearms by policewomen might create additional risks of their being assassinated and might therefore be contrary to the requirements of public safety”. The CJEU found that, while the threat to safety should be taken into account, the threat applied equally to men and women, and women were not at greater risk. Unless the justification related to biological factors specific to women, such as the protection of her child during pregnancy, differential treatment could not be justified on the grounds that public opinion demand that women be protected.
Example: In Mahlburg v. Land Mecklenburg-Vorpommern,[241] the complainant, who was pregnant, was turned down for a permanent post as a nurse where a substantial amount of work was to be conducted in operating theatres. This was justified on the basis that harm could be caused to the child because of exposure to harmful substances in theatre. The CJEU found that because the post was a permanent one, it was disproportionate to bar the complainant from the post, because her inability to work in theatre would only be temporary. While restrictions on the working conditions of pregnant women were acceptable, these had to be strictly circumscribed to duties that would cause her harm and could not entail a generalised bar to work.
Example: In Asma Bougnaoui and ADDH v. Micropole SA,[242] (discussed in Section 5.8), the CJEU found that wearing an Islamic headscarf at work could be seen as a genuine and determining occupational requirement. The CJEU held that the Employment Equality Directive’s requirement of a discriminatory rule being justified is only fulfilled if it is objectively dictated by the nature of the occupational activities concerned or by the context in which they are carried out. Therefore, the exception does not cover subjective considerations, such as the employer taking into consideration the particular request of the customer not wishing to be served by a worker wearing an Islamic headscarf.
Example: In a case[243] from Austria, a male gynaecologist complained about the rules of the procedure for a contract award with the statutory health insurance. Female candidates were automatically given 10 % more points in the selection procedure. The complainant claimed that, although he received the maximal number of points in all categories, he was placed third on the list because of the point advantage that female physicians received. The Austrian Supreme Court held that, in the circumstances of the case, sex was a genuine occupational requirement because there was an insufficient number of female gynaecologists (only 23 % of all gynaecologists were female) and some patients prefer to have a female doctor.
Paragraph 18 of the preamble to the Employment Equality Directive contains a more specific articulation of the genuine occupational requirement exception for certain public services relating to safety and security. This is not of itself a separate exception, but it should rather be regarded as making clear one of the consequences of the genuine occupational requirement exception in a particular context:
“This Directive does not require, in particular, the armed forces and the police, prison or emergency services to recruit or maintain in employ- ment persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services.”[244]
Typically, this might apply to a situation of refusing certain posts that are deemed to be highly physically demanding to those beyond a certain age, or with a disability. In this respect, Article 3 (4) of the directive permits Member States to expressly exclude the provision of its terms to the armed forces. While this provision does not appear in the Gender Equality Directive (recast), it is possible to appreciate how it might operate by examining two cases relating to sex discrimination and the armed forces. These cases were considered under Article 2 (2) of the Equal Treatment Directive, which contained the defence of ‘genuine occupational requirement’ now found in Article 14 (2) of the Gender Equality Directive (recast).
Example: In Sirdar v. The Army Board and Secretary of State for Defence,[245] the complainant had served as a chef as part of a commando unit. She was made redundant following cutbacks in military spending which introduced the principle of ‘interoperability’ for commando units. ‘Interoperability’ required that each individual be capable of performing a combat role, due to manpower shortages. The CJEU accepted that all-male commando units were justified to guarantee combat effectiveness, and that the principle of interoperability thereby excluded women. This was because the commandos were a small, specialised force that was usually in the first wave of any attack. The CJEU found the rule to be necessary in pursuit of the aim of ensuring combat effectiveness.
Example: In Kreil v. Bundesrepublik Deutschland,[246] the complainant applied to work as an electrical engineer in the armed forces. However, she was refused the post, since women were barred from any military posts involving the use of arms and could only participate in the medical and musical services of the forces. The CJEU found that this exclusion was too wide, since it applied to
almost all military posts, simply because women in those posts might have to use weapons at some point. Any justification should be more closely related to the functions typically performed in each particular position. The credibility of the government’s justification was also questioned because in those posts that were open to women, they were still obliged to undergo basic weapon training for the purposes of self-defence or defence of others. The measure was therefore not proportionate to achieving its aim. Furthermore, distinctions should not be made between women and men on the basis that women require greater protection, unless these relate to factors specific to the circumstances of women, such as the need for protection during pregnancy.
The ability to justify sex discrimination by referring to the effectiveness or efficiency of particular security or emergency services may well prove more difficult over time, as gender roles and social attitudes develop. In light of this, Member States are under an obligation to reconsider restrictive measures periodically.[247]
3.3.2. Religious institutions
The Employment Equality Directive specifically permits organisations that are based around a ‘religion’ or ‘belief’ to impose certain conditions on employees. Article 4 (2) of the Directive states that it does not interfere with “the right of churches and other public or private organisations, the ethos of which is based on religion or belief… to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos”. Furthermore, employers connected to religious organisations may fall within the scope of the ‘genuine occupational requirement’ defence allowing for differential treatment based on religious tenets of the organisation in question.
Article 4 (1) and 4 (2) thus allow organisations such as churches to refuse, for instance, to employ women as priests, pastors or ministers, where this conflicts with the ethos of that religion. While the CJEU has not yet had the opportunity to rule on the interpretation of this provision, it has been applied at the national level. Below are two cases relating to the invocation of this defence to justify differential treatment on the basis of religion/belief.
Example: In a case before the German courts,[248] an employee in a childcare centre run by a Catholic association was dismissed for leaving the Catholic church. The Federal Labour Court found the complainant had violated his obligation to loyalty. Although his work itself was not of religious nature, his religion and belief constituted a genuine legitimate and justified occupational requirement.
Example: In the Amicus case,[249] the UK courts were asked to rule on the compatibility of national regulations transposing the genuine occupational requirement defence in the context of religious employers with the Employment Equality Directive. It was emphasised that any exception to the principle of equal treatment should be narrowly interpreted. The wording of the national regulations permitted differential treatment where the employment ‘is for the purposes of an organised religion’, and it was underlined that this would be far more restrictive than ‘for purposes of a religious organisation’. The court thus agreed with the submissions of the government that this exception would apply in relation to a very limited number of posts related to the promotion or representation of the religion, such as religious ministers. It would not allow religious organisations, such as faith schools or religious nursing homes, to argue that the post of a teacher (which is for the purposes of education) or a nurse (which is for the purposes of healthcare) was part of the ‘purpose of an organised religion.’
3.3.3. Exceptions on the basis of age
Article 6 of Employment Equality Directive (2000/78/EC)[250] provides two separate justifications of differences of treatment on grounds of age.
Article 6 (1) allows age discrimination that pursues “legitimate employment policy, labour market and vocational training objectives”, provided that this meets the proportionality test. A limited number of examples for when differential treatment may be justified is provided: Article 6 (1) (b) allows for the “fixing of minimum conditions of age, professional experience or seniority in service for access to employment”. However, this list is not intended to be exhaustive and so could be expanded on a case-by-case basis.
The CJEU has repeatedly held that Member States enjoy a broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it.[251] The CJEU accepted different aims that can be invoked by the respondent states, however, it stressed that the social and employment policy objectives to be legitimate must be of a ‘public interest nature’.[252] For instance, it acknowledged that “the aim of putting in place a balanced age structure in order to facilitate planning of staff departures, ensure the promotion of civil servants, particularly the younger ones among them, and prevent disputes that might arise on retirement” was a legitimate policy aim.[253] In a case concerning compulsory retirement for university lecturers, it held that a legitimate aims could include the aim to provide quality teaching and the best possible allocation of posts for professors between the generations.[254] In Abercrombie & Fitch Italia Srl,[255] the CJEU considered whether the use of zero hour contracts for workers aged 25 years and under, and provision for automatic dismissal on attaining the age of 25, constituted unlawful age discrimination. It ruled that the provision was not precluded since it pursued a legitimate aim of employment and labour market policy, and the means laid down for the attainment of that objective are appropriate and necessary. In Kleinsteuber v. Mars GmbH,[256] the CJEU found that the method of calculation of early retirement pension for part-time workers did not amount to discrimination. The CJEU also noted that an incentive to remain in the undertaking until the statutory age of retirement cannot be created without giving the employee making that choice an advantage compared to the employee who leaves the undertaking early. It considered that such objectives, which aim to establish a balance between the interests at issue, in the context of concerns falling within employment policy and social protection, in order to guarantee the provision of an occupational pension, may be considered public interest objectives.
Article 6 (2) permits age discrimination with regard to access to benefits under occupational social security schemes, without the need to satisfy a test of proportionality. The CJEU stressed that the exception provided for in Article 6 (2) has to be interpreted restrictively[257] and found that the age-related increases in the pension contributions do not fall within the scope of this provision.[258]
Example: In David Hütter v. Technische Universität Graz,[259] the CJEU was asked to consider a reference relating to an Austrian law providing that work experience prior to attaining the age of 18 years could not be taken into account for the purpose of determining pay. Mr Hütter and a colleague were both apprentices for the TUG, who on completing their apprenticeships were offered a three-month contract. On the basis of the legislation in question, Mr Hütter, who was just over 18 years of age, had his pay determined with reference to his acquired 6.5 months of work experience, whereas his colleague who was 22 months older than him had her pay determined in line with her acquired 28.5 months experience. This led to a difference in monthly pay, despite each having gathered similar levels of experience. The CJEU accepted that the legislation’s primary aims could be deemed legitimate: (1) so as not to place persons who have pursued a general secondary education at a disadvantage, compared with persons with a vocational qualification; and (2) to avoid making apprenticeships more costly and thereby promote the integration of young persons who had pursued that type of training into the labour market. However, the CJEU found that an objective justification had not been properly made out, as it had a disproportionate impact on younger workers, especially in those cases where experience was equal, yet the age of the applicant affected the value of remuneration, as in this case.
Example: The case Franz Lesar v. Telekom Austria AG[260] relates also to Austrian law which excludes taking into account periods of apprenticeship and of employment completed by a civil servant before reaching the age of 18, for the purpose of determining the entitlement to a retirement pension and the calculation of its amount. The CJEU noted that the retirement scheme for civil servants is a scheme which provides workers of a given occupational sector with benefits designed to replace the benefits provided for by statutory social security schemes, and seeks to ensure the “fixing […] of ages for admission or entitlement to retirement or invalidity benefits” within the meaning of Article 6 (2) of Directive 2000/78. Consequently, the CJEU found that this difference in treatment that is based directly on the criterion of age may be justified in so far as it seeks to guarantee within a civil service retirement scheme a uniform age for admission to that scheme and a uniform age for entitlement to the retirement benefits provided under that scheme.
Following the ruling in the Hütter case, Austrian law was amended. However, transitional measures continued to disadvantage those persons who were disadvantaged under the previous system and thus perpetuated age discrimination.[261] The Austrian government stated that the new law was “motivated by budgetary considerations”. The CJEU held that budgetary considerations may influence the measures chosen by the Member State, but that they alone cannot constitute a legitimate aim within the meaning of Article 6 (1) of the Employment Equality Directive.[262]
The legitimate aims set out in Article 6 (1) have to relate to employment policy, labour market and vocational training. Accordingly, only limited types of legitimate aims may be put forward to justify the difference in treatment.
Example: In Hörnfeldt v. Posten Meddelande AB[263] the CJEU examined a national measure, which allows an employer to terminate an employee’s employment contract on the sole ground that the employee has reached the age of 67 years and which does not take into account the retirement pension level that the person concerned will receive. The CJEU held that such a measure can be objectively and reasonably justified by a legitimate aim of employment and labour-market policies, as long as it constitutes an appropriate and necessary means by which to achieve that aim. The CJEU noted that it is a mechanism which is based on the balance to be struck between political, economic, social, demographic and/or budgetary considerations and the choice to be made between prolonging people’s working lives or, conversely, providing for early retirement.
Example: In Reinhard Prigge and Others v. Deutsche Lufthansa AG,[264] the CJEU examined the mandatory retirement age of 60 for pilots employed by Lufthansa. Pursuant to a clause in a collective agreement, the employment contracts were automatically terminated at the end of the month in which the sixtieth birthday fell. The age limits set in collective agreement were lower than the limits set out in national legislation. The CJEU noted that principles laid down in the Directive apply not only to legislative, regulatory or administrative provisions, but also to collective agreements. With respect to exceptions to the principle of non-discrimination on ground of age provided for in Article 6, the CJEU held that air traffic safety did not constitute a legitimate aim within the meaning of this Article.
The CJEU found that traffic safety considerations are a legitimate aim under Article 2 (5) and Article 4 (1) of the Employment Equality Directive. However, in the circumstances of the case, the automatic termination of an employment contract at the age of 60 was disproportionate. The CJEU referred in particular to national and international legislation permitting the continuation of that activity, under certain conditions, until the age of 65. Furthermore, the CJEU noted that there were no apparent reasons as to why pilots, after having reached the age of 60, were considered to no longer possess the physical capabilities to act in their profession.[265]
Example: In the European Commission v. Hungary,[266] the CJEU examined the proportionality of the law providing for the compulsory retirement of judges, prosecutors and notaries on reaching the age of 62. The government defended the disputed national measures on the grounds that they pursued two objectives, first, the standardisation of the age-limit for compulsory retirement in the public sector and second, the establishment of a ‘more balanced age structure’ facilitating access for young lawyers to the professions of a judge, prosecutor or solicitor, and guaranteeing them an accelerated career. The CJEU held that those aims were legitimate. However, the CJEU concluded that the lowering of the retirement age was not appropriate and necessary to meet those aims. The reason for this conclusion was the abrupt nature of the reduction in the retirement age from 70 to 62 within only one year. The CJEU stated that the provisions “abruptly and significantly” lowered the age-limit without introducing transitional measures. This meant that the persons concerned could not prepare themselves. Furthermore, the CJEU held that the amendments could not result in a balanced age structure in the medium and long terms. The CJEU explained that, while in 2012 the turnover of personnel would be significant owing to the fact that eight age groups would be replaced by one single age group, that turnover rate will slow down in 2013 when only one age group would have to be replaced.[267]
The CJEU held that the test formulated for objective justification of alleged indirect justification is very similar to justification of direct age discrimination, however, as the CJEU stressed it is not identical. Article 6 (1) of the Employment Equality Directive imposes on states the burden of establishing to a high standard of proof the legitimacy of the aim relied on as a justification.[268]
It should be noted that the approach of the CJEU is also consistent with that of the ECtHR which examined the issue of different pensionable ages in the context of the ECHR, discussed in Andrle v. the Czech Republic,[269] in Sections 4.2 and 5.1. In this sense, the exceptions relating to age are consistent with the courts’ approaches to employment and social policy justifications.
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226. Gender Equality Directive (recast), Art. 14 (2); Racial Equality Directive, Art. 4; Employment Equality Directive, Art. 4 (1).
227. Ibid.
228. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000, pp. 16–22.
229. Employment Equality Directive, Art. 4 (2).230. Employment Equality Directive, Art. 6.
231. See, for example, CJEU, Case 222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary, 15 May 1986, para. 36.
232. CJEU, C-447/09, Reinhard Prigge and Others v. Deutsche Lufthansa AG [GC], 13 September 2011, discussed in Section 3.3.3.
233. CJEU, C-341/08, Domnica Petersen v. Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe [GC], 12 January 2010, paras. 60-64.
234. Gender Equality Directive (recast), Art. 14 (2); Racial Equality Directive, Art. 4; Employment Equality Directive, Art. 4 (1).
235. CJEU, C-416/13, Mario Vital Pérez v. Ayuntamiento de Oviedo, 13 November 2014.
236. Ibid., para. 37.
237. See for CJEU reasoning Section 5.5. Compare with CJEU, C-229/08, Colin Wolf v. Stadt Frankfurt am Main [GC], 12 January 2010, para. 40 where the CJEU upheld the maximum recruitment age of 30 for front-line officers. The CJEU stated that physical fitness was a characteristic related to age and constituted a genuine and determining occupational requirement in the case. This was because frontline duties requires exceptional high physical capacity. Compare also with CJEU, C-258/15, Gorka Salaberria Sorondo v. Academia Vasca de Policía y Emergencias [GC], 15 November 2016 discussed in Section 5.5, where the CJEU considered that the age limit at 35 years for recruitment as a police officer did not constitute discriminatory treatment.
238. CJEU, Case 248/83, Commission of the European Communities v. Federal Republic of Germany, 21 May 1985.
239. CJEU, Case 318/86, Commission of the European Communities v. French Republic, 30 June 1988.
240. CJEU, Case 222/84, Marguerite Johnston v. Chief Constable of the Royal Ulster Constabulary, 15 May 1986.
241. CJEU, C-207/98, Mahlburg v. Land Mecklenburg-Vorpommern, 3 February 2000.
242. CJEU, C-188/15, Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v. Micropole SA [GC], 14 March 2017.
243. Austria, Austrian Constitutional Court, V 54/2014-20, 9 December 2014.
244. Employment Equality Directive 2000/78/EC, OJ L 303, 2.12.2000, p. 17.
245. CJEU, C-273/97, Angela Maria Sirdar v. The Army Board and Secretary of State for Defence, 26 October 1999.
246. CJEU, C-285/98, Tanja Kreil v. Bundesrepublik Deutschland, 11 January 2000.
247. Gender Equality Directive (recast), Art. 31 (3).
248. Germany, Federal Labour Court, 2 AZR 579/12, 25 April 2013.
249. United Kingdom, the United Kingdom High Court, Amicus MSF Section, R. (on the application of) v. Secretary of State for Trade and Industry [2004] EWHC 860 (Admin), 26 April 2004.
250. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000, pp. 16–22.
251. CJEU, Joined cases C-501/12 to C-506/12, C-540/12 and C-541/12, Thomas Specht and Others v. Land Berlin and Bundesrepublik Deutschland, 19 June 2014, para. 46.
252. CJEU, C-388/07, The Queen, on the application of The Incorporated Trustees of the National Council for Ageing (Age Concern England) v. Secretary of State for Business, Enterprise and Regulatory Reform, 5 March 2009, para. 46.
253. CJEU, C-159/10 and C-160/10, Gerhard Fuchs and Peter Köhler v. Land Hessen, 21 July 2011, para. 60.
254. CJEU, Joined cases C-250/09 and C-268/09, Vasil Ivanov Georgiev v. Tehnicheski universitet – Sofia, filial Plovdiv, 18 November 2010, para. 52.
255. CJEU, C-143/16, Abercrombie & Fitch Italia Srl v. Antonino Bordonaro, 19 July 2017.
256. CJEU, C-354/16, Ute Kleinsteuber v. Mars GmbH, 13 July 2017.
257. CJEU, C-476/11, HK Danmark acting on behalf of Glennie Kristensen v. Experian A/S, 26 September 2013, para. 46.
258. Ibid., para. 54.
259. CJEU, C-88/08, David Hütter v. Technische Universität Graz, 18 June 2009.
260. CJEU, C-159/15, Franz Lesar v. Beim Vorstand der Telekom Austria AG eingerichtetes Personalamt, 16 June 2016.
261. According to the new law, periods of training and service prior to the age of 18 were taken into account, but, at the same time, the law introduced – only for civil servants who suffered that discrimination – a three-year extension to the period required for the promotion. See CJEU, C-530/13, Leopold Schmitzer v. Bundesministerin für Inneres [GC], 11 November 2014, paras. 9-15. See also C-417/13, ÖBB Personenverkehr AG v. Gotthard Starjakob, 28 January 2015 and CJEU, C‑529/13, Georg Felber v. Bundesministerin für Unterricht, Kunst und Kultur, 2 January 2015.
262. CJEU, C-530/13, Leopold Schmitzer v. Bundesministerin für Inneres [GC], 11 November 2014, para. 41.
263. CJEU, C-141/11, Torsten Hörnfeldt v. Posten Meddelande AB, 5 July 2012.
264. CJEU, C-447/09, Reinhard Prigge and Others v. Deutsche Lufthansa AG [GC], 13 September 2011.
265. Compare with CJEU, C-45/09, Gisela Rosenbladt v. Oellerking Gebäudereinigungsges.mbH [GC], 12 October 2010, where the CJEU held that collective agreements which provide for the automatic termination of employment of employees who become entitled to an old-age pension or who reach a set age (such as 65) can amount to justified age discrimination. The CJEU
took account of the fact that the retiring employees are entitled to financial compensation in the form of a pension and that the compulsory retirement is based on an agreement, which makes for considerable flexibility in the use of the mechanism, allowing the social partners to take account of the overall situation in the labour market concerned and the specific features of the
jobs in question. The ECJ also observed that German law does not automatically force employees to withdraw from the labour market as it prevents a person who intends to continue to work beyond retirement age from being refused employment on the ground of age.
266. CJEU, C-286/12, European Commission v. Hungary, 6 November 2012.
267. A new law adopted by the Hungarian Parliament on 11 March 2013 lowered the retirement age for judges, prosecutors and notaries to 65 over a period of 10 years.
268. CJEU, C-388/07, The Queen, on the application of The Incorporated Trustees of the National Council for Ageing (Age Concern England) v. Secretary of State for Business, Enterprise and Regulatory Reform, 5 March 2009, para. 65.
269. ECtHR, Andrle v. the Czech Republic, No. 6268/08, 17 February 2011.
3. Justification for less favourable treatment under European non- discrimination law
3.1. Application of objective justification under ECHR
3.2. Application of the objective justification under EU law
3.3. Specific grounds of justification under EU law
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