Age does not matter

Discrimination by employers on the basis of age is illegal. This rule has long been upheld both by the European Court of Justice itself as well as by specific EU laws. The European Court of Justice recently clarified what type of measures can be found to be in breach of this far reaching principle and emphasised the obligation of national courts to refuse to apply a national law which is in breach of EU law.

The case in question revolved around the following facts. An employee had been in the employment of the same company in Germany since the age of 18. When she was 28 she was dismissed by the employer and given one month's notice. German law provides that the notice periods which an employer must comply with in the case of dismissal increase progressively according to the length of the employment relationship.

However, this same law provides that periods of employment completed by an employee before reaching the age of 25 are not taken into account for calculating the notice period. In accordance with this law, the employer calculated the notice period on the basis of three years' length of service rather than over a 10-year period. The employee filed legal proceedings, challenging her dismissal and alleging that the German law in question constituted discrimination on grounds of age. The German court seized of the case requested guidance from the European Court of Justice as to whether the German law was in line with EU law.

The EU directive on equal treatment in employment and occupation prohibits discrimination on grounds of age but allows member states to cater in their national laws for a difference of treatment based on age if such measures are justified by a legitimate aim of employment, labour market or vocational training policy and if the measure adopted is appropriate and necessary. Thus, for example, the Maltese regulations transposing the EU directive permit the setting of special conditions on access to employment and vocational training, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection.

Maltese law also permits the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment. Similarly, it allows employers to fix a maximum age for recruitment which is based on the training requirements of the post in question or on the need for a reasonable period of employment before retirement.

The European Court of Justice asserted that the German law under examination contained a difference of treatment based on age and gave less favourable treatment to employees who entered the employer's service before the age of 25. The court contended that while the rule clearly had an employment and labour market objective, the rule was neither appropriate nor necessary for achieving such objectives.

In particular, the European Court noted that the objective alluded to by the German court of giving employers greater flexibility of personnel management by alleviating the burden on them in respect of the dismissal of young workers, from whom it is reasonable to expect a greater degree of personal or occupational mobility, was not a legitimate and a proportionate one.

The ECJ responded that the German rule applied to all employees who joined the undertaking before the age of 25, whatever their age at the time of dismissal, and therefore could not be said to be appropriate for achieving this objective.

This ruling serves to further illustrate that the general principle of non-discrimination on grounds of age has indeed far reaching implications and that any type of measure which can be seen as having a discriminatory effect, whether directly or indirectly, is illegal. The justifications which the European Court of Justice is prepared to accept for any difference of treatment on the basis of age must indeed not only have a legitimate objective permitted by EU law but must furthermore be truly necessary and proportionate to the aim which is sought to be achieved.

Dr Vella Cardona is a practising lawyer and a freelance consultant in EU, intellectual property, consumer protection and competition law. She is also a visiting lecturer at the University of Malta.

mariosa@vellacardona.com