Plotting an escape

What happens when a claimant by mistake brings proceedings against the wrong defendant, and the limitation period expires before the mistake is corrected?

This was the common practical problem the ECJ was asked to resolve in Case C-358/08 Aventis Pasteur (solicitorsjournal.com, 2 December 2009).

Declan O'Byrne suffered brain damage as a result, he alleged, of being treated with a defective vaccine manufactured by a French company. The vaccine was distributed by the manufacturer's wholly-owned UK subsidiary. Mistaking the distributor for the manufacturer, the claimant sued it under the Consumer Protection Act 1987 (implementing Council Directive 85/374/EEC on product liability). By the time the claimant attempted to correct the mistake, the ten-year limitation period had expired. The claim against the manufacturer was barred unless Mr O'Byrne could show either of the following:

(i) that he was entitled under CPR rule 19.5(3)(a) to substitute the manufacturer for the distributor who was named in the claim form by mistake; or

(ii) that he had 'in the meantime instituted proceedings against the producer', as per article 11 of the directive.

Explaining a cryptic passage in its earlier judgment on the same facts (Case C-127/04 O'Byrne [2006] ECR I-1313), the ECJ firmly rejected the argument that the CPRs could be used to circumvent the limitation period. The ten-year cut-off point was clear and readily justifiable in a system of strict liability. A right of action extinguished under article 11 of the directive could not be revived by substitution under national procedural law.

The second argument fared better. By way of 'clarification', the ECJ offered the claimant two escape routes from the harsh effect of the limitation period. First, the distributor of the vaccine could be treated as a supplier that failed to identify the manufacturer within a reasonable time. The distributor is then deemed to be a 'producer' under article 3. Secondly, it was open to the national court to assess whether 'the putting into circulation of the product in question was, in fact, determined by the parent company which manufactured it' (paragraph 52). As the Advocate General explained in paragraph 38, this essentially meant piercing the corporate veil. On either analysis, the claimant could argue that he had successfully instituted proceedings against the producer, thereby pausing the limitation period.

There is no obvious textual basis in the directive for the second solution proposed by the ECJ. Nor is it at all clear how the 'factual control' test would work in practice. Presumably, it depends on the facts. Granted that the court's instinct was to devise a way of avoiding a potentially grave injustice to the claimant. But that is precisely what substitution under CPR rule 19.5(3)(a) was designed to deal with. It is regrettable that, after two trips to Luxembourg, the claimant is still where he started '“ and the case continues.

Age discrimination in the workplace

Improving gender equality in the workplace has been on the Community's agenda ever since its foundation. More recently, the European legislature has tackled other forms of inequality, including age discrimination (see Council Directive 2000/78/EC, article 1). In two recent cases, the European Court considered how far the directive goes in preventing national rules which impose age restrictions (Case C-229/08 Wolf (12 January 2010) and Case C-341/08 Peterson (12 January 2010)).

In Wolf, the claimant's application to be a fireman was rejected because he was over 30. The ECJ held that national regulations restricting recruitment to those under the age of 30 were not incompatible with the directive.

The ECJ considered that the real question in the case was whether the age limit was contrary to article 4, which excludes the concept of discrimination altogether where a difference in treatment is based on a characteristic 'related to' any of the grounds of discrimination, and which is a 'genuine and determining occupational requirement'.

In reaching its conclusion that article 4 was not infringed, the court recognised that the purpose of the regulations was to ensure the proper functioning of a key emergency service. It drew on unchallenged scientific evidence that showed youth, strength and physical fitness to be closely associated.

The frontline firefighting role for which Mr Wolf had applied required exceptional physical capacity. Hence the age limit was a legitimate occupational requirement.

Peterson was another preliminary reference from a German court. Domnica Petersen had practised as a dentist until she turned 68. At that point, the regulator terminated her licence under federal legislation which set a maximum age limit for doctors and dentists working under the statutory health insurance scheme. The ECJ held that the limit could be justified by reference to a 'legitimate employment policy' within the meaning of article 6(1) of the directive.

The German government argued that the upper age limit encouraged the influx of young talent into dentistry. That, in the court's opinion, was a legitimate employment policy. Understandably, the court was not prepared to second-guess the policy choices of the national legislature. Although it scrutinised the proportionality of the means used (a blanket limit) to achieve the social goal in question (fair sharing of opportunities between the generations), this was not a case of anxious scrutiny. If anything, the decision highlights the sheer breadth of the exceptions to the equal treatment principle.

Together, these cases suggest that the ECJ is willing, in age discrimination matters, to allow a fairly wide latitude to policies adopted by member states '“ perhaps surprisingly wide.