Flying high

With the removal of the default retirement age, the issue of whether dismissal for retirement can ever be justified is likely to dominate cases of age discrimination for some time. In Prigge and ors v Deutsche Lufthansa AG, the Court of Justice of the European Union (CJEU) said that a collective agreement which allowed pilots to retire at 60 could not be justified.

Basic facts

Deutsche Lufthansa terminated the contracts of three airline pilots in 2006 and 2007 when they reached the age of 60, in accordance with a collective agreement.

The national law stated that pilots over 60 could only fly on commercial air transport flights if they were part of a multi pilot crew and other pilots were under 60. Pilots aged 65 or over were prohibited from acting as the pilot of an aircraft engaged in commercial air transport operations.

The men claimed age discrimination on the grounds that the clause in the agreement was contrary to the equal treatment directive (ETD)..

The German Federal Labour Court asked the CJEU to decide whether the collective agreement was compatible with the ETD.

Relevant law

The CJEU considered whether the retirement age of 60 could be justified under three provisions of the ETD:

1. Article 2(5) states that the principle of equal treatment does not apply to national laws which are necessary for public security and national health.
2. Article 4(1) allows a difference in treatment on the basis of age if a job has a characteristic which “by reason of the nature of the particular occupational activities concerned ... such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.”
3. Article 6(1) of the ETD states that: "…differences of treatment on grounds of age shall not constitute discrimination, if… 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."

CJEU decision

With regard to article 2(5), the CJEU made clear that a collective agreement could form part of national law when the state had asked the social partners to adopt the measure, where the purpose of the rule was to avoid accidents by ensuring the pilots were safe to fly. This amounted to a measure aimed at ensuring public security.

However, as national legislation allowed pilots to continue to fly until they were 65 it could not be necessary for achieving the objective of public security and therefore the exception under 2(5) did not apply.

It accepted that it was essential that pilots were fit to do their job without risking the safety of the public and that this was a vital capacity which deteriorated with age. However, the genuine occupational requirement test was limited and had to be strictly applied. As the national legislation considered that pilots over 60 were safe to fly (albeit with restrictions), the CJEU held that an age limit of 60 was disproportionate.

As for whether the requirement fell within article 6(1), the Court held that legitimate aims had to be social policy objectives such as employment policy, labour market or vocational training. Public safety did not fall within one of these aims and therefore retirement at 60 was not justified.