Kicking back

It has been apparent for some time that the ECJ's approach to the rules prohibiting age discrimination is more flexible and tolerant of the possibility that such rules might be justifiable than it is in other areas of non-discrimination law. The decision of the Grand Chamber in Case C-45/09 Rosenbladt (12 October 2010) confirms that approach.

Mrs Rosenbladt worked as a cleaner for 39 years. In 2008 she reached the age of 65, and her employer dismissed her on the ground that she had reached the age of compulsory retirement under the terms of a collective agreement which had, under German employment law, been given general applicability by a ministerial decision. Mrs Rosenbladt complained that this constituted age discrimination. The German court referred the case to the ECJ.

Directive 2000/78 provides that there 'shall be no direct or indirect discrimination whatsoever' on grounds of age. However, article 6 provides that 'differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary'.

Broad terms

On the face of it, a requirement that a person be dismissed from employment solely on account of her age looks like a paradigm case of direct discrimination. However, article 6 is notably broad. One aspect of that breadth comes from the terms of article 6 itself. It does not set out a 'closed list' of possible grounds for permissible differences of treatment, but requires only a 'legitimate aim'. The aims identified are themselves very wide.

When they implement the directive, member states are free to make full use of this breadth; they are not required to draw up a specific list of permissible grounds for differences in treatment (Case C-388/07 Age Concern [2009] ECR I-1569). The second element of breadth comes from the ECJ's case law: in deciding whether a given measure is 'objectively and reasonably justified' and the means are 'appropriate and necessary', the ECJ will give a wide measure of discretion to member states (Case C-144/04 Mangold [2005] ECR I-9981).

Reluctant support

The overall result of these two features of age discrimination has been that the ECJ has been reluctant to give support to attemptsto show that compulsory retirement ages are discriminatory.

In Case C-411/05 Palacios de la Villa [2007] ECR I-8531 and in Age Concern it indicated a willingness to accept reasonable compulsory retirement ages being permitted by law. It has been willing to accept, in particular, that they are justified by a desire to ensure fairness between generations: older workers may be retired to make way for younger ones.

It is not surprising, therefore, that in Rosenbladt it reached a similar conclusion. Nevertheless, Rosenbladt is significant because it so strongly restates the principle in the context of collective agreements, and because it seems if anything to offer even more flexibility.

In Age Concern, the ECJ said that it would not be sufficient to rely on 'mere generalisations' to establish justification; but it is hard to see that anything more was offered here. And the extent of the discretion afforded to the member states has reached a point where it effectively resembles a Wednesbury reasonableness test.

In asking whether the justification is 'objectively and reasonably justified', what the ECJ actually asks is whether the member state's choices 'appear unreasonable'.

Different approach

It is not surprising, given what the German government referred to as the 'political and social consensus which has endured for many years' regarding compulsory retirement', that the ECJ should take this approach. But it is markedly different from that taken in other areas. After all, the very justification offered is that age discrimination is permissible to assist the young to enter the labour market. Would such a justification be accepted in other areas of discrimination law?

If someone attempted to defend a rule which required women to 'retire' upon marriage as being a rule to 'assist men' in entering the labour market, the argument would be regarded as risible. Far from justifying the difference in treatment, it seems rather to confirm that it has a discriminatory purpose '“ assisting one group at the expense of another, when the very purpose of the law is to ensure that all are treated equally.

Why is age discrimination different? In other areas of non-discrimination law, the relevant characteristic is either fixed and immutable (sex, race) or at least very 'sticky' (nationality, religion). Age is different. It is never fixed, and in the course of a lifetime a person can expect to experience a full range of different ages. To prefer men over women is to prefer one (fixed) group over another, most people cannot (either by choice or otherwise) leave one group for the other. To prefer the old over the young, or the young over the old, is different: one can say to any individual 'your turn will come' (or 'you had your turn'). Working out the obligations that one generation owes to another is therefore quite different.

There is, however, a risk that if this fundamental difference is not appreciated, the notably lax standards that the ECJ is now applying to justification in the field of age discrimination may come to be used in areas where a much more rigorous approach is justified. It is vital that the reasons why age discrimination is special are properly appreciated.