EU age discrimination law and older and younger workers: case-law development

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1 EU age discrimination law and older and younger workers: case-law development Prof. Dr. Christa Tobler, LL.M. Europa Institutes of the Universities of Leiden (Netherlands) and Basel (Switzerland) Seminar Age Discrimination and Labour Law April, Lund Prvon. Dr. Christa TOBLER, LL.M. Universities von Basel (Switzerland) and Leiden (The Netherlands) Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands)

2 Theme of the presentation In the invitation to this workshop References to: The Europe 2020 strategy Employment Guidelines of 2012 Art. 3(3) TEU: solidarity between the generations Art. 25 of the Charter of Fundamental Rights (CFR): the rights of the elderly and to the crucial case law of the Court of Justice of the European Union (CJEU), by now extensive, dynamic, and controversial to say the least. Meaning with the latter: the Court s case-law on the meaning of age discrimination under Directive 2000/78, with respect to older and younger workers. Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands) 2

3 Context (1) EU non-discrimination law Originally mostly economic law, focusing in particular on discrimination on grounds of nationality, and (more modestly) on discrimination on grounds of sex. Subsequently broadening in the social field: Discrimination on grounds of part-time work (Directive 97/81), fixed-term work (Directive 1999/70) and more recently - temporary work (Directive 2008/104). Discrimination on grounds of race and ethnic origin (Directive 2000/43). Discrimination on grounds of religion or belief, disability, age or sexual orientation (Directive 2000/78). Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands) 3

4 Context (2) Specifically: age discrimination Much disputed at the time of the adoption of the Directive in fact different treatment on grounds of age was very common (and still is). Disputed nature also visible in the extended implementation period for this ground (and for disability), Art. 18 of Directive 2000/78: Ordinary implementation period ended on 2 December For age and disability: In order to take account of particular conditions, possibility of the Member States to extend this period for an additional three years. Member States were obliged to report annually to the Commission on the steps taken to tackle age and disability discrimination and on the progress it being made towards implementation. This led to the famous Mangold (2005) case, concerning Germany. Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands) 4

5 Age and Directive 2000/78 Special substantive elements in the Directive Age as one of several discrimination grounds, in principle subject to the same system under the Directive. But with certain special elements see preamble: Recital (14): reservation with regard to national provisions laying down retirement ages. Recital (19): possibility of the Member States not to apply the provisions of the Directive concerning age (and disability) to the armed forces. Recital (25): special justifications, even for direct age discrimination. Most of these are reflected in the articles of the Directive. Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands) 5

6 CJEU case-law: extensive List of cases under Directive 2000/ : Mangold 2007: Palacios de la Villa 2008: Bartsch 2009: Age Concern England, Hütter 2010: Wolf, Petersen, Kücükdeveci, Andersen, Rosenbladt, Georgiev 2011: Fuchs & Köhler, Hennigs & Mai, Prigge 2012: Meister, Tyrolean Airways, Hörnfeldt, Commission v Hungary, Odar, Dittrich 2013: Kristensen, Toftgaard 2014: Pohl (and more pending) Plus cases from other contexts, e.g.: EU staff cases; EP v Council (2006): Directive 2003/86 on family reunification; Soukupová (2013): early retirement support in agriculture (sex discrimination) Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands) 6

7 CJEU case-law: dynamic Constant change, activity, or progress? Definition according to the Oxford Dictionary - does it fit? Constant activity: yes, evidenced through the growth of the case-law. Constant change or progress? In some respect, no. Some judgments are simply confirming previous case-law from other fields; e.g.: Definition of pay as including certain social security benefits (occupational pensions): taken from sex equality law (see link made in the Directive s preamble). Inclusion of the social partners: parallel to internal market law. Narrow interpretation of justification grounds: general approach. In other respects: change, yes, progress? Perhaps rather: controversial case-law Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands) 7

8 CJEU case-law: controversial (1) Applicable law: the Mangold approach Mangold (2005): The prohibition of the discrimination on grounds of age does not flow from the Directive but from a general principle of EU law. The Directive merely gives expression to the general principle of non-discrimination on grounds of age. Confirmed in Kücükdeveci (2010); also mentions the CFR. Different approaches in subsequent case-law: Sometimes only the Directive is mentioned; e.g. Andersen (2010), Rosenbladt (2010), Commission v Hungary (2012). Sometimes the general principle is mentioned; e.g. Tyrolean Airways (2011), Odar (2012). Sometimes the general principle plus the CFR are referred to; e.g. Hennigs & Mai (2011), Prigge (2011). Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands) 8

9 CJEU case-law: controversial (2) Scope: retirement age There are now quite a few cases concerning compulsory retirement ages; e.g. Palacios de la Villa (2007), Age Concern England (2009), Petersen (2010), Rosenbladt (2010), Georgiev (2010), Fuchs & Köhler (2011), Prigge (2011), Hörnfeldt (2012), Commission v Hungary (2012). What then about the reservation in the preamble? CJEU in Palacios de la Villa (2007): concerns only the statutory pension age (implying: as relevant for the right to a pension), not conditions of employment. Is that what the Member States intended? (Compare the earlier debate on sex discrimination in the employment in the military forces). Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands) 9

10 CJEU case-law: controversial (3) Justification: Art. 6(1) of the Directive Notwithstanding Article 2(2), Member States may provide 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. Such differences of treatment may include, among others: [.]. Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands) 10

11 CJEU case-law: controversial (4) Justification: Art. 6(1) of the Directive general aspects Broad discretion of the Member States in their choice of social / employment policy measures; Mangold (2005). The list of examples in Art. 6(1) is not exhaustive, but merely a guide; Rosenbladt (2010). Fundamental case Age Concern England (2009): Art. 6(1) does not mean that the national law must set out a specific list of objective and reasonable justifications. The aims in the list of Art. 6(1) are related to employment policy, labour market and vocational training, i.e. social policy as a public interest. Therefore not purely individual reasons such as cost reduction or improving competitiveness. The Member States broad discretion cannot have the effect of frustrating the implementation of the non-discrimination principle. Mere generalisations are not acceptable. Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands) 11

12 CJEU case-law: controversial (5) Justification: Art. 6(1) general aspects, application (Age Concern England (2009) continued): Member States bear the burden of establishing to a high standard of proof the legitimacy of the aim relied on. The slightly different wording as compared to the indirect discrimination test is not relevant: the test is not stricter. It is for the national court to decide on objective justification under Art. 6(1) of the Directive. Not budgetary considerations in themselves; but they can underpin a social policy; Fuchs and Köhler (2011). The fact that a rule is laid down in a collective agreement does not change the test; Hennigs and Mai (2010). Application: very uneven, sometimes very flexible, allowing lots of differential treatment, but not always... Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands) 12

13 Overall finding Having studied the CJEU case-law my finding is not only that it is extensive, dynamic and controversial, but above all unpredictable, in particular as far as justification under Art. 6(1) of Directive 2000/78 is concerned. Whilst a certain degree of unpredictability is normal with respect to case-law, here it seems larger than in other fields of EU law. Is this unavoidable? What does it mean in practice for the Member States, and for the function of the preliminary ruling procedure? Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands) 13

14 To conclude Thank you for your attention! Contact information: or Prof. Dr. Christa TOBLER, LL.M., Universities of Basel (Switzerland) and Leiden (The Netherlands) 14