ECJ (Grand Chamber) Spain had legislated for compulsory retirement when it wanted to encourage recruitment; then abolished it when economic circumstances improved and it wanted to encourage people to stay in work; and then reintroduced it by allowing collective agreements to prescribe retirement ages, provided that the worker had qualified for a retirement pension.
Held: Despite recital 14, requiring retirement at a particular age is direct age discrimination within the meaning of article 2(1) and 2(2)(a) and has therefore to be justified. But this did not preclude national legislation allowing for this, even if the social policy aims were not spelled out in the legislation, as long as it could be decided from the context and other sources what those aims were. The encouragement of recruitment was a legitimate aim. The means employed had still to be both appropriate and necessary, although member states (and where appropriate social partners) enjoyed a broad discretion in the choice both of the aims and of the means to pursue them. The measure in question did not unduly prejudice the legitimate claims of the workers because it was based, not only on a specific age, but also on having qualified for a pension.
It is not necessary for the national measure at issue, in order to be justifiable under article 6(1) of the Directive, to refer expressly to a legitimate aim of the kind envisaged in article 6(1); it suffices that ‘other elements, taken from the general context of the measure concerned, enable the underlying aim of that law to be identified for the purposes of judicial review of its legitimacy and whether the means put in place to achieve that aim are appropriate and necessary.’
Judges:
Skouris P
Citations:
Times 23-Oct-2007, [2007] ECR I-8531, C-411/05, [2009] ICR 1111, [2007]EUECJ C-411/05, [2007] Pens LR 411, [2007] IRLR 989, [2008] 1 CMLR 16, [2008] All ER (EC) 249
Links:
Statutes:
Jurisdiction:
European
Citing:
Order – Felix Palacios de la Villa v Cortefiel Servicios SA ECJ 15-Feb-2007
Europa Council Directive 2000/78/EC Article 6 – General principle of Community law – Age discrimination – Compulsory retirement – Direct effect – Obligation to set aside conflicting national law. . .
Cited by:
Cited – Incorporated Trustees of The National Council For Ageing v Secretary of State for Business, Enterprise and Regulatory Reform ECJ 5-Mar-2009
(Third Chamber) The trustees complained that the respondent had failed to implement the Directive, in that there remained, for example, rules allowing employers to have fixed retirement ages.
Held: The complaint failed. The Directive allowed . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Cited – Seldon v Clarkson Wright and Jakes (A Partnership) CA 28-Jul-2010
The claimant solicitor said that the compulsory retirement from his partnership on age grounds was discriminatory, and that the UK Regulations had not implemented the Directive fully.
Held: The appeal failed. The purpose of the provision as to . .
Cited – Seldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .
Cited – O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 07 October 2022; Ref: scu.261649