5.5. Age – Handbook on European non-discrimination law

Handbook on European non-discrimination lawContents

The protected ground of age relates to differential treatment or enjoyment based on a victim’s age. Under the ECHR, although age discrimination per se does not fall within the ambit of a particular right (unlike religion or sexual orientation), issues of age discrimination may arise in the context of various rights. As such the ECtHR has, as in other areas, adjudicated on cases whose facts suggested age discrimination, without actually analysing the case in those terms – in particular in relation to the treatment of children in the criminal justice system. The ECtHR has found that ‘age’ is included among ‘other status’.[524]

Example: In Schwizgebel v. Switzerland,[525] a 47-year-old single mother complained about a refused application to adopt a child. The national authorities based their decision on the age difference between the applicant and the child, and that the adoption would impose a significant financial burden, since the applicant already had one child. The ECtHR found that she was treated differently from younger women applying for adoption based on her age. However, a lack of uniformity among states over acceptable age limits for adoption allowed the state a large margin of appreciation. In addition, the national authority’s consideration of the age difference had not been applied arbitrarily, but it was based on consideration of the best interests of the child and the financial burden that a second child might pose for the applicant, which in turn could affect the child’s well-being. Accordingly, the ECtHR found that the difference in treatment was justifiable.

Example: In T. v. the United Kingdom and V. v. the United Kingdom,[526] two boys had been tried and found guilty of a murder committed when they were 10 years old. The applicants complained that they had not been given a fair trial because their age and lack of maturity prevented them from participating effectively in their defence. The ECtHR found that in trying a minor the state should take “full account of his age, level of maturity and intellectual and emotional capacities” and take steps “to promote his ability to understand and participate in the proceedings”. The ECtHR found that the state had failed to do this and had accordingly violated Article 6 of the ECHR, without examining the case from the perspective of Article 14.

Example: In D.G. v. Ireland and Bouamar v. Belgium,[527] pending placement in a suitable institution the national authorities had placed the applicants who were minors in detention. The ECtHR found that in the circumstances this violated the right not to be detained arbitrarily (Article 5 of the ECHR). In both cases, the applicants claimed that the treatment was discriminatory compared with that of adults, since national law did not permit adults to be deprived of their liberty in such circumstances. The ECtHR found that any difference in treatment between minors requiring containment and education and adults with the same requirements would not be discriminatory, because it stems from the protective – not punitive – nature of the procedure applicable to juveniles. Accordingly, there was an objective and reasonable justification for any such difference in the treatment.

Under the ESC, there are also provisions relating to the issue of age discrimination. In particular, Article 23 providing for the right of elderly persons to social protection and Article 1 (2) and Article 24 relating to age discrimination in employment are relevant.

Example: In Fellesforbundet for Sjøfolk (FFFS) v. Norway,[528] the ECSR examined a national provision allowing the employers to terminate the employment contract of seafarers upon reaching the age of 62 years. The complainant argued that the contested provision was discriminatory on grounds of age.

The ECSR examined the complaint under Article 24 of the ESC; which provides for the right to protection in cases of termination of employment. It stressed that employment termination solely on grounds of age may amount to a restriction of that right to protection. The ECSR reaffirmed the principle that employment termination on grounds of age is not a justified reason for dismissal, unless such termination is objectively and reasonably based on a legitimate aim and that the means of achieving that aim are appropriate and necessary. The Committee further reiterated that Article 24 of the ESC establishes in an exhaustive manner the valid grounds on which an employer can terminate an employment relationship. Only two types of grounds can be relied on, namely those connected with the capacity or conduct of the employee and those based on the operational requirements of the company (economic reasons). Therefore, the dismissal by an employer for reaching a certain age would be contrary to the ESC, given that such a dismissal would not be based on one of the two valid grounds.

The government defended the contested provisions stating that these were based on considerations of employment policy and operational requirements, as well as the goal of ensuring the health and security of those at sea. The ECSR accepted those considerations as legitimate. However, in examining the proportionality, necessity and appropriateness of the measures taken, the ECSR found that the government failed to prove why it considered that health would deteriorate to such an extent that seafarers were not able to continue their work at the age of 62 years. In particular, it was evident that there were other options to ensure the safety and the operational requirements of shipping, for example through regular and sufficiently comprehensive medical examinations of seafarers. In conclusion, the ECSR held that the relevant provisions deprived the persons concerned of protection and constituted a violation of Article 24 of the ESC.

The ECSR also established that the age-limit provision affected the particular professional category of seafarers in a disproportionate way. Such a difference in treatment, therefore, constituted discrimination, contrary to the right to non-discrimination in employment guaranteed under Article 1 (2) of the ESC (the effective right of a worker to earn one’s living in an occupation freely entered upon).

Under EU law, Article 21 of the Charter of Fundamental Rights sets a prohibition of discrimination based on different grounds, including age. The CJEU’s holding in Mangold[529] established non-discrimination in respect of age as a general principle of EU law. Prohibition of discrimination on grounds of age is also included in the Employment Equality Directive (2000/78/EC). The CJEU stressed that the directive does not itself lay down this principle but “it simply gives concrete expression” to the general principle.[530] The source of this principle is to be found “in various international instruments and in the constitutional traditions common to the member states”.[531] In Kücükdeveci,[532] the CJEU viewed the provisions on age discrimination in the Employment Equality Directive as giving expression to both general principles of equal treatment (embodied in Article 20 of the EU Charter) and of non-discrimination (embodied in Article 21 of the EU Charter).

Example: In Dansk Industri (DI), acting on behalf of Ajos A/S v. Estate of Karsten Eigil Rasmussen,[533] the dispute related to a national provision that deprived an employee of the right to receive a severance payment when they could claim an old-age pension. As the case involved a dispute between individuals, the directive was not directly applicable and could not be relied upon as such against an individual. However, the CJEU relied on the general principle prohibiting discrimination on the grounds of age and found that the contested national provision constituted discrimination on this ground. Furthermore, it ruled that, if it is impossible to interpret the national provision in a manner that is consistent with EU law, the national court must disapply that provision.[534]

As a ground of discrimination, age has a different character to other non- discrimination grounds. The Employment Equality Directive (2000/78/EC) provides for a wide range of exceptions in terms of age (Article 6). So, if it can be shown that it is objectively justified as appropriate and necessary to achieve a legitimate aim, age-based differential treatment may be permitted under national law. Consequently, differences of treatment based on age may be permitted under certain circumstances.

Example: In J.J. de Lange v. Staatssecretaris van Financiën,[535] the dispute concerns national provisions which allow persons under the age of 30 years to deduct in full from their taxable income the costs of vocational training. By contrast, the right to that deduction is limited for persons who had already reached that age. The CJEU confirmed that, in this case, the Employment Equality Directive applies because the scheme is intended to improve access to training for young people. The CJEU noted, however, that the contested taxation scheme was not as such a precondition for access to vocational training, but that through its financial consequences it could affect accessibility to such training. The CJEU left it for the referring court to determine whether the contested tax provision was appropriate to improve the position of young people in the labour market. Assessing whether the contested taxation scheme was necessary, the CJEU relied on the government’s arguments:

i. persons over the age of 30 were not excessively disadvantaged by that scheme because they still had the right to deduct up to € 15,000 from their training expenses, which was the average yearly cost of training;

ii. persons over the age of 30 had generally had the opportunity to undertake training before reaching that age and to pursue a professional activity, with the result that, being in a better financial position than young people who have recently left the school system, they are able to bear at least in part the financial burden of new training.

In light of these arguments and given broad discretion accorded to EU Member States in the social policy and employment field, the CJEU was not convinced that a Member State adopting a taxation scheme such as that at issue goes beyond what is necessary to attain the objective of promoting the position of young people in the labour market. However, it is for the national court to determine if that is the situation in the present case.

Example: In Specht and Others v. Land Berlin and Bundesrepublik Deutschland,[536] the proceedings concern a national provision under which a level of pay for civil servants is determined by reference to age at the time of recruitment. The government argued that the contested provision aims to reward previous professional experience. The CJEU stated that, as a general rule, an appropriate measure for achieving this aim might be to take account of the length of an employee’s service and connect it to professional experience. In the circumstances of this case, however, a particular step of pay at the time of appointment was not based on previous professional experience but solely on age. The CJEU concluded that this age discrimination is contrary to the Employment Equality Directive.

One of the exceptions foreseen in the Employment Equality Directive relates to age limits for recruitment. Whether in certain cases the age limit imposed by national law fulfils the criteria specified in the directive has to be assessed on a case-by-case basis. Such an assessment needs to take into account all relevant facts and evidence, including the nature of the tasks of the persons concerned.

Example: In Mario Vital Pérez v. Ayuntamiento de Oviedo,[537] the CJEU was asked if an age limit of 30 years for the recruitment of a local police officer constitutes prohibited discrimination. The CJEU reaffirmed that “the possession of particular physical capacities is one characteristic relating to age”.[538] It also stated that the aim to ensure the operational capacity and proper functioning of the police service constitutes a legitimate objective within the meaning of the directive. However, the CJEU rejected the Member State’s arguments that in this case the age limit was necessary to achieve its aim. The eliminatory physical tests would be a sufficient measure with which to assess whether the candidates possess the particular level of physical fitness required for the performance of their professional duties. It also argued that neither the training requirements of the post nor the need to ensure a reasonable period of employment before retirement could justify the age limit.

Example: In contrast, in Gorka Salaberria Sorondo v. Academia Vasca de Policía y Emergencias,[539] setting the age limit at 35 years for recruitment as a police officer in the Basque Country was not considered to constitute discriminatory treatment. The CJEU distinguished this case from the Mario Vital Pérez v. Ayuntamiento de Oviedo case. It relied on the following facts:

i. the duties imposed on officials were physically demanding;

ii. it was considered that a police officer who is over 55 years old was no longer in full possession of the capabilities necessary for the proper performance of his duties;

iii. recruitment of a candidate older than 35 years would not provide sufficient time for that person to be assigned to his or her professional duties for a sufficiently long period.

Furthermore, the CJEU relied on statistical data presented in the proceedings which indicated how the age pyramid was going to develop in the following years. The data revealed that it had been necessary to re-establish a particular age structure to have a sufficient number of agents to whom the most physically demanding tasks could be assigned. This would be possible by gradually replacing older agents through the recruitment of younger staff, better equipped to take on physically demanding tasks.

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524. ECtHR, Schwizgebel v. Switzerland, No. 25762/07, 10 June 2010.

525. Ibid.

526. ECtHR, T. v. the United Kingdom [GC], No. 24724/94, 16 December 1999 and V. v. the United Kingdom [GC], No. 24888/94, 16 December 1999.

527. ECtHR, D.G. v. Ireland, No. 39474/98, 16 May 2002; ECtHR, Bouamar v. Belgium, No. 9106/80, 29 February 1988.

528. ECSR, Fellesforbundet for Sjøfolk (FFFS) v. Norway, Complaint No. 74/2011, 2 July 2013.

529. CJEU, C-144/04, Werner Mangold v. Rüdiger Helm [GC], 22 November 2005. The case concerned a dispute between Mr Mangold and his employer relating the application of a German legal norm by the employer, which was allowing a specific form of age discrimination. It took place before the implementation deadline of Directive 2000/78/EC for Germany.

530. CJEU, C-441/14, Dansk Industri (DI), acting on behalf of Ajos A/S v. Estate of Karsten Eigil Rasmussen [GC], 19 April 2016, para. 23.

531. Ibid., para. 22.

532. CJEU, C-555/07, Seda Kücükdeveci v. Swedex GmbH & Co. KG [GC], 19 January 2010.

533. CJEU, C‑441/14, Dansk Industri (DI), acting on behalf of Ajos A/S v. Estate of Karsten Eigil Rasmussen [GC], 19 April 2016. Compare with CJEU, C-499/08, Ingeniørforeningen i Danmark v. Region Syddanmark [GC], 12 October 2010.

534. Ibid., para. 37. Following the CJEU judgment, the Supreme Court of Denmark delivered its judgment on 6 December 2016 (Case No. 15/2014). It found that it was neither possible to interpret the provision of the national law in conformity with EU law nor set aside national law because this would mean acting outside the limits of their competences. Accordingly, the Supreme Court ruled in favour of the employer. It noted that the only possible solution is an act of parliament amending national rules and reassuring compliance with EU law. See Denmark, Supreme Court (2016), ‘The relationship between EU law and Danish law in a case concerning a salaried employee’ and also a comment on the national judgment by Klinge, S. (2016), ‘Dialogue or disobedience between the European Court of Justice and the Danish Constitutional Court? The Danish Supreme Court challenges the Mangold-principle, EU Law Analysis (website).

535. CJEU, C‑548/15, J.J. de Lange v. Staatssecretaris van Financiën, 10 November 2016.

536. 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. See also CJEU, C-20/13, Daniel Unland v. Land Berlin, 9 September 2015.

537. CJEU, C-416/13, Mario Vital Pérez v. Ayuntamiento de Oviedo, 13 November 2014.

538. Ibid., para. 37.

539. CJEU, C-258/15, Gorka Salaberria Sorondo v. Academia Vasca de Policía y Emergencias [GC], 15 November 2016.

Contents

5. Protected grounds

5.1. Sex

5.2. Gender identity

5.3. Sexual orientation

5.4. Disability

5.5. Age

5.6. Race, ethnicity, colour and membership of a national minority

5.7. Nationality or national origin

5.8. Religion or belief

5.9. Social origin, birth and property

5.10. Language

5.11. Political or other opinion

5.12. ‘Other status’

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