Although it is generally unlawful under European law to discriminate on the basis of age, it can be justified in certain circumstances. In Fries v Lufthansa CityLine GmbH the Court of Justice of the European Union (CJEU) held that it could be justified as an appropriate means of maintaining an adequate level of civil aviation safety in Europe. 

Basic facts 

Mr Fries worked as a pilot and instructor for Lufthansa for many years. In October 2013 when he reached the age of 65, the company told him that it could no longer employ him as he had reached the mandatory age limit down in EU law for pilots of commercial aircraft, although his licence remained valid until December 2013. 

Mr Fries brought a claim before the German federal labour court that Lufthansa’s refusal to employ him as a pilot was illegal and that it should pay him his salary for November and December 2013. In addition, he claimed that the imposition of an age limit of 65 not only constituted age discrimination, but it also infringed his freedom to choose an occupation, contrary to the Charter of Fundamental Rights of the EU. 

Decision of lower court 

The German court stayed the proceedings and ask the CJEU to decide whether: 

  • The age restriction was compatible with the prohibition of discrimination on grounds of age under the Charter
  • The age restriction was compatible with the Charter which says that everyone has the right to engage in work and pursue a freely chosen occupation
  • So-called “ferry flights” which did not carry passengers, cargo or mail were caught within the definition of “commercial air transport”
  • Training other pilots was caught by the term “commercial air transport”. 

Decision of CJEU 

The CJEU accepted that the provision setting down a defined retirement age constituted less favourable treatment for those over 65 compared to the under 65s and was therefore a difference in treatment based on age. 

However, given how important it was to minimise the risks of failure due to human error and given how physical capabilities decline with age, it could be justified as an appropriate means of maintaining an adequate level of civil aviation safety in Europe. It was therefore reasonable for EU law to fix an age limit for pilots working in the commercial air transport sector. 

In terms of whether the measure went beyond what was necessary for achieving its objective and unduly prejudiced people over 65 with a pilot’s licence, the Court held that it held to take account not just of the hardship that it might cause to pilots, but also the interests of society as a whole. In those circumstances, it was reasonable to impose an age limit on commercial pilots. 

As to the argument that setting the age limit at 65 was arbitrary, the Court held that it had to be guided by the current state of medical expertise. Although there were clearly some pilots over 65 who were perfectly capable of continuing to fly, the law could not be required to provide for an individual examination of the physical and mental capacities of every holder of a pilot’s licence over that age and had to therefore impose a general restriction. 

The restriction did not, however, apply to pilots working for an air carrier which did not carry passengers, cargo or mail, meaning that Mr Fries could continue to work on these “ferry flights”. Likewise, it did not stop pilots from working as instructors and/or examiners on aircraft provided that they were not part of the flight crew.