Dr. in Law, Lawyer
- Age as a criterion of discriminations in the European Union’s legislation
- Legitimate age discriminations
- Legitimate but disproportionate age discriminations
- Difficulties where employment, social security and anti-discrimination law apply Conclusions ***
1. Age as a criterion of discriminations in the European Union’s legislation The European Employment Strategy aims to increase the employment and occupation rate of Europe on a lasting basis. Policies against discrimination and social exclusion are encouraged and Member States are invited to keep workers in the labor market longer, promote training and life-long learning, increase work flexibility and adjust the tax and benefit system. Art. 13 of the European Union’s Treaty (EUT) constitutes the political and legal base for the Union’s activity against discriminations. Three Directives have already been issued based on it: The Racial Equality Directive, the Framework Employment Directive and the Revised Equal Treatment Directive. In the fields where these Directives apply discrimination is so persistent that the general principle of equality is considered not sufficient. These Directives ensure effective remedies as the shift of burden of proof and the abolishment of the discriminatory provisions. The Framework Employment Directive differs from the Racial Equality Directive and the Revised Equal Treatment Directive in the following: a) The application of the Framework Employment Directive is limited in the fields of employment-occupation (including access to employment, recruitment, promotion, vocational training, working conditions, pay and dismissal, membership in trade unions, employer’s bodies and other professional organizations). The other two Directives include also other areas like provision of goods and services and education. The different level of protection of the Framework Employment Directive (scope of application and content of the protection) leads to a debate about the “equality hierarchy” within European Union’s legislation. However, the scope of application of each Directive and furthermore the content of the protection are supposed to differ, because they cover different grounds of discrimination. Therefore, it’s not a question of “equality hierarchy” but of adaptation to each special ground of discrimination. b) Direct discrimination on grounds of age in employment – occupation is to be prohibited, unless it is objectively justified or it is a genuine occupational requirement. This is different from other discrimination grounds, where direct discrimination cannot be justified. c) Anti – discrimination law is more complex to apply in the area of age discrimination for two reasons: Firstly, because differences in experience and qualifications that often exist between persons in similar age make difficult the identification of a comparator. In that case the Courts and the competent for the implementation of the Directive authorities will have to make use of hypothetical comparators and ask how they would have been treated. Secondly, because criterions as experience, educational qualifications, decision-making capabilities, emotional maturity, seniority, health, etc. have by definition a negative impact upon age groups and therefore have to satisfy the objective justification test. That is to say, these criteria will be justified, only if they serve a legitimate aim and are genuinely related and proportionate to this aim. 2. Legitimate age discriminations There are two cases where age discrimination is justified: a) When age is a genuine and determining occupational requirement for a particular post (art. 4 par. 1). However, it is difficult to see many circumstances when age is a genuine requirement. Age is often used as a “proxy” for other occupational characteristics as experience, maturity, health, ability to adopt new ideas, etc. These characteristics are mainly connected to the individual’s situation and therefore they must be assessed individually. b) When age is objectively necessary to achieve a valuable social aim (art. 6 par. 1). The directive gives some specific examples of the type of legitimate aim. Differences of treatment could be justified on this type of circumstances. Member States when incorporating the Directive can add other social aims that justify age criteria. However, age distinctions that fall into the scope of this exception need to satisfy the objective justification test. That means that age distinctions must be genuinely related and proportionate to the legitimate aim they serve. The Courts (national and European) have already examined cases of indirect age-discrimination such as: Ø In Ireland, the Court decided that the request of 5 years experience for the promotion in public service constitutes an indirect discrimination against younger employees and it could not be justified as objectively necessary, since it had nothing to do with the adequacy for promotion of the candidates (DEC, E2003/036 McGarr v. Ministry of Finance). Ø A very characteristic example of legitimate aim that justifies age criteria is the European Court’s of Justice Decision C-144-2004, W. Mangold v. R. Helm. The question examined was, if art. 6 of Directive 2000/78 preclude a provision of German law, which authorizes the conclusion of fixed-term employment contracts with workers aged 52 and over. The purpose of the national legislation in question was to promote the vocational integration of unemployed older workers, which they encounter considerable difficulties in finding work. The Court accepted that an objective of that kind must as a rule be regarded as justifying “objectively and reasonably a difference of treatment on grounds of age”. Ø Although in case C-17/05 B., F Cadman v. Health and Safety Executive the Court didn’t refer to the Framework Employment Directive, the decision is interesting for indirect age discrimination, because the Court examines the criterion of “length of service” when art. 141 TEC and the secondary European legislation on equal pay are applied. The Court’s interpretation, if applied in analogy to the Framework Employment Directive, will limit the protection against age discrimination and it is possible to lead to gender discrimination. The Advocate General examined, whether indirect discrimination arising from a pay-system using length of service as a criterion can be justified, under what circumstances and how the burden of proof is distributed. He approached critically decision ECJ Danfoss, which was issued much earlier from the Framework Employment Directive. In Danfoss the Court had decided that the employer doesn’t need to justify length of service, as criterion in a pay-system, even if it works to disadvantage of women. The reasoning of the Danfoss decision lied in the assumption that length of service goes hand in hand with experience and that experience generally enables the employee to perform his duties better. The Advocate General (in Cadman) remarked that the criterion of length of service could lead to indirect discrimination and he suggested that the employer has to justify recourse to the criterion of length of service, if as a determinant of pay has a disparate impact on male and female employees. Then he suggested that the employer will have to make clear how much weight is placed, in the determination of pay, on length of service, conceived either as a way of measuring experience either as a means for rewarding loyalty, as compared with other criteria, such as merit and qualifications. In addition, the employer will have to show why experience is valuable for the specific job and if it is rewarded proportionally. It is obvious that experience is more valuable in posts involving responsibility and management tasks than in case of repetitive tasks. The ECJ didn’t adopt the Advocate’s General Opinion and decided that, even if recourse to the criterion of length of service as a determinant of pay leads to disparities in pay, in respect of equal work or work of equal value between men and women, “recourse to the criterion of length of service is appropriate to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his duties better. Therefore the employer does not have to establish specifically that recourse to that criterion is appropriate to attain that objective as regards a particular job, unless the worker provides evidence capable of raising serious doubts”. If the Court’s approach in Cadman were transposed to the Framework Employment Directive, the criterion of length of service as a reward of experience and loyalty would be considered legitimate age discrimination. However, in the context of different Directives and in order to achieve their different aims the same terms, as “length of service” have to be interpreted and evaluated differently. In the Framework Employment Directive the aim pursued is to assess individually characteristics connected mainly to individual’s situation. There is an important difference between loyalty and experience that the criterion of “length of service” rewards. Loyalty has nothing to do with the skills of the employee and therefore an individual assessment is not needed. On the contrary, experience evaluates his skills and depends on the nature of his tasks and also on his qualifications and merits. So experience has to be assessed individually. Therefore, the General Advocate’s Opinion in Cadman is more appropriate for the interpretation of length of service as a criterion of indirect age discrimination. 3. Legitimate but disproportionate age discriminations Even if Member States pursue a legitimate aim using age criteria, it has to be demonstrated that the limited protection on grounds of age is the least restrictive method in achieving this goal. The proportionality is controlled by a case -by case analysis. For example, minimum age limits on particular occupational posts such as lawyers or judges or public servants could be replaced by other “neutral” requirements, such as minimum training period. Ø In Netherlands, the Commission for Equal Treatment examined three cases of discrimination against older people in the field of the conventions between doctors older than 60 years and the insurance companies. The Commission decided that there are reliable methods for the appreciation if a doctor is apt to continue working. The use of these methods is in the responsibility of the National Union of Doctors who keeps the Doctors Register. Therefore, the insurance companies are not authorized to exempt doctors older from 60 years from the sign up of conventions (case 2005/49). Ø In the above-mentioned Mangold case the ECJ accepted that the difference of treatment on grounds of age was objectively necessary to achieve a valuable social aim that is the vocational integration of the unemployed older workers. However, application of German legislation leads to a situation in which all workers who have reached the age of 52 and over, without distinction, whether or not they were unemployed before the contract was concluded, whatever the duration of any period of unemployment, may lawfully be offered fixed – term contracts of employment which may be renewed an indefinite number of times. These workers are in danger, until the age they may claim for an old age pension, of being excluded from the benefit of stable employment. The Court decided that in so far, as legislation takes the age of the worker concerned as the only criterion for the application of a fixed term contract of employment, it goes beyond what is appropriate and necessary in order to attain the objective pursued. 4. Difficulties where employment, social security and anti-discrimination law apply Retirement ages, social security schemes and occupational social security schemes fall into the Member States competences. Furthermore, in these fields national legislations often use age criteria. That happens because the “insurance technique” used by social security is based on actuarial and statistical studies that determine the probability that contingencies will occur. The occurrence of contingencies, such as old age or sickness or maternity, depends on sex and age. Women’s expectancy of life is higher than men; younger people are less vulnerable to sicknesses than older people etc. For these reasons European legislation on age discrimination is reasonably quite hesitant. Social security and social protection schemes are expressly exempted from the Framework Employment Directive’s scope of application. Only occupational social security schemes under certain conditions fall into it. Retirement ages are a highly controversial matter that already is pending in the ECJ. Specifically: a) By virtue of art. 6 par. 2 of the Directive, Member States can use age criteria in the field of occupational social security schemes. The admission or entitlement of retirement or invalidity benefits and the actuarial calculations of occupational social security schemes can be based on grounds of age criteria provided this does not result in discrimination on the grounds of sex. These exemptions must also be objectively and reasonably justified by a legitimate aim and the means of achieving that aim must be appropriate and necessary. b) The Framework Employment Directive doesn’t apply to the state social security and social protection schemes. However, the different pensionable ages for men and women have an impact upon the equality Directives, because they can under certain circumstances justify the difference of treatment. Also, the allowance of benefits to groups defined solely by age criteria can be discriminatory. For example, the allowance of unemployment benefits to older workers can discriminate younger workers. Wouldn’t be more “neutral” to introduce measures for the employment of long-term unemployed or for unemployed that fulfill other social valuable criteria, such as large families, single parent families etc? Reduction of social security contributions for young and older employees or self-employed could discriminate middle-aged employees and self-employed. The scope of application of the Framework Employment Directive should be – under certain conditions - extended and cover these cases as it does with the occupational social security schemes. Regarding the objection that social security is based on actuarial and statistical calculations, this is a valid objection. Therefore the admission or entitlement to these benefits can lawfully be based on age criteria. Such provisions are already contained in the Framework Employment Directive in what concerns occupational social security schemes. Furthermore, for the application of the Directive on statutory social security schemes and on social protection a long transitional period could be agreed. Regarding the objection that social security and social protection belongs to the competence of the Member States, this is also a valid objection, but it is less important than it appears. In all national legislations equality is considered a fundamental human right and provisions on equality exist and often are included in the Constitutions. National provisions on equality, interpreted under the influence of European law and of international treaties on human rights, will finally lead to the abolishment of unlawful age discriminations. The extension of the scope of application of the Framework Employment Directive in these fields would simply accelerate this slow procedure. Furthermore, even if the scope of application of the Framework Employment Directive is extended to social protection and social security, Member States still remain competent for the organization and functioning of their systems. It’s only the way they justify their decisions on legitimate age discriminations that changes. Certainly, the extension of the scope of application presupposes the agreement of the Member States but scientific and social dialogue on these issues would help to accede to this agreement. c) Recital 14 mentions that the Directive doesn’t affect national provisions for retirement age, but in the text there is no express reference on retirement ages. The ECJ already examines the case of retirement ages: Colm O’ Cinneide maintains that state imposed mandatory retirement ages may be exempted by virtue of art. 3 par. 3 of the Framework Employment Directive, if they can be classed as part of state social security schemes. Otherwise, they require justification under art. 6 par. 1. The reason is that in the Recital 14 it is provided that the Directive doesn’t affect mandatory retirement age but in the text there is no further reference on them. So it should be checked whether Member States can fix automatically retirement ages or there is a further need for express justification to be demonstrated either by the Member State in a national basis or by the employer on a case -by case basis. Even if aims as the need for workforce planning and the possibility of opening up vacancies for young people are legitimate aims, the means to achieve those aims are submitted to the proportionality control. According to that opinion, depriving older workers from their employment rights is not objectively justified and in any case is disproportionate. This opinion has the merit of coherence and serves the European policy on employment that aims to permit workers to continue working and postpone their pension. European Court of Justice in case C-411-05, Felix Palacios de Villa v. Cortefiel Services Sa., the General Advocate examined the question whether compulsory retirement provisions of collective agreements, used by the Spanish law as a mechanism for promoting intergenerational employment, are compatible with Framework Employment Directive and art. 13 TEC and whether the Directive has a horizontal effect as the Court in Mangold implies. The Advocate General points out that the retirement age can not be examined as dismissal, because Framework Employment Directive suggests a rather narrow interpretation for three reasons: a) the principle of non discrimination is a rather open and non clearly definable concept, b) there is a danger that anti-discrimination rules may in general eliminate national provisions in fields where the Member States retain the exercise of powers, c) Age related distinctions are very common in social and employment policies where the power remains in the Member states. Therefore the Advocate General concludes that a national provision providing for the setting of a compulsory retirement age does not for the purposes of Directive 2000/78 fall into the scope of that Directive. Such a national provision cannot be precluded by the prohibition of discrimination on grounds of age as laid down in that Directive (67). In a secondary supporting thought the General Advocate points out that the Directive could not preclude compulsory retirement ages in the examined case because they serve a legitimate public interest aim of employment and labor market policy capable of justifying a difference of treatment on grounds of age according to art. 6 par. 1 and the means used to achieve to this legitimate purpose are necessary and appropriate. The decision of the Court will be of great interest, because, as it is already mentioned, in theory the opposite opinion has been supported. Conclusions
- The anti- discrimination legislation overthrows generalized assumptions and stereotypes, such as that older people lack motivation or that younger people lack maturity. The application of the anti - discrimination European legislation obliges Member States to reexamine labor law and social protection law in order to abolish unjustified national provisions that are based on age criteria. The Courts and the competent for the application of the Directive authorities have a crucial role showing the cases where the use of age criteria is unlawful.
- Jurisprudence has to clarify, whether the Directive applies in case of retirement ages. Also jurisprudence has to clarify the controversial points that appear in the case of multiple discriminations, in particular, in combination of gender and age discrimination.
- Given that the right to equal treatment is a fundamental right, the European and the national legislators should re-examine the extension of the Framework Employment Directive on statutory social security and social protection schemes. In that case long transitional periods and conditions similar to those applied on occupational social security schemes should be provided. The extension of the Directive’s field of application presupposes the Member States agreement. However, in fact this extension does not affect their competence on social protection and social security.
* A shorter version of this article has been presented in the 7nth Congress of the European Women Lawyers Association onEqual Opportunities for All, in Zurich on 11-12 May 2007.  From 1995 to 2015 the 20-29 age group will fall in number by 11 million (-20%) while the 50-64 age group will fall in number by 11 million (-20%). See Towards a Europe for All Ages, Activities of the European Union,http://www.europa.eu/scadplus/leg/en/cha/c11308.htm  Art. 13 provides that 1. Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. 2.By way of derogation from paragraph 1, when the Council adopts Community incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, it shall act in accordance with the procedure referred to in Article 251.  Papasteriadou N., “Article 13”, in B. Skouris, Interpretation of the Treaties for the European Union and the European Community, (in Greek), ed. Ant. N. Sakkoulas, p. 308 s. The Chart of Fundamental Rights of the European Union (art. 20) treats about equality before the law. Article 21 refers specifically to non-discrimination. The 1st par. is inspired from art. 13 of the EUT and art. 11 of the Convention on Human Rights and Biomedicine.  Council Directive 2000/43 EC implementing the principle of equal treatment irrespective of racial or ethnic origin, OJ 2000 L180/22. This Directive also covers a range of areas outside employment, such as access to good and services including housing, education and health care.  Council Directive 2000/78 EC establishing a General Framework for Equal Treatment in Employment and Occupation, OJ 2000 L303/16. This Directive forbids discriminations on grounds of religion or belief, disability, age or sexual orientation as regard employment and occupation.  Council Directive 2002/73 EC amending Directive 76/207EEC, on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, OJ 2002 L 269/15.  To ensure effective remedies in the field of discrimination the Directives provide that the Member states have to: Ø Improve the legal protection by reinforcing access to justice or conciliation procedures. Ø Shift the burden of proof: Once facts have been established from which it may be presumed that there has been discrimination; the burden of proof lies with the defendant. Ø Protect the victims of discrimination against reprisals and notably dismissals. Ø Disseminate adequate information on the Directive’s provisions. Ø Abolish or declare null and void the discriminatory provisions.  Such as:
- a) The setting of special conditions on employment and occupation for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection.
- b) The fixing of minimum conditions of age, professional experience or seniority in service for access in employment or certain advantages linked to employment.
- c) The fixing of maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.
 Colm O’Cinneide, European Network of Legal Experts in the Non-Discrimination Field, Age Discrimination and European Law, European Commission, Directorate General for Employment, Social Affairs and Equal Opportunities, 2005, p. 36. The author gives as example U.K. where, in addition to the legitimate aims contained in art. 6 par. 1 of the Directive, the legislator set out the following aims: a) health, welfare and safety for example of young workers, b) facilitation of employment planning, for example where a business has a number of people approaching retirement age at the same time, c) the particular training requirements, d) encouraging and rewarding loyalty, e) the need for a reasonable period of employment before retirement.  Equality and non Discrimination, Annual Report, 2006, European Commission, Employment and Social Affairs, 2005,http://europa.eu.int/comm/employment_social/fundamental/rights/index_ en.htm, publications, p. 22.  ECJ, C-144/04, W. Mangold v. R. Helm, OJ C 36, 11-2-06, p. 10.  ECJ, 109/88 Danfoss , ECR 1989, 3199.  ECJ, C-184/89, Nimz, ECR 1991, I-297, ECJ, C-1/95, Gerster ECR 1997, I-5253, ECJ, C-243-95, Hill and Stapleton, ECR1998, I-3739.  State imposed pensionable ages.  Art. 6 par. 2 of the Directive provides that: Member States may provide that the fixing for occupational social security schemes of ages for the admission or entitlement of retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees and the use of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided that this does not result in discrimination on the grounds of sex.  Many age based criteria will require justification as they will have an indirect discriminatory impact on either men or women.  Recital 13 provides that: This Directive does not apply to social security and social protection schemes whose benefits are not treated as income within the meaning given to that term for the purpose of applying Article 141 of the EC Treaty, nor to any kind of payment by the State aimed at providing access to employment or maintaining employment.  The right for protection against discrimination for all persons constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of all forms of Discrimination Against Women, the International Convention on the Elimination of all Forms of Racial Discrimination and the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the Convention for the Protection of Human Rights and Fundamental Freedoms.  Colm O’ Cinneide, op.cit., p. 43.  The Advocate General explains that Mangold was issued before the entrance into force of the Framework Employment Directive. In the General Advocates Opinion neither article 13 EC nor Directive 2000/78 necessarily reflect an already existing prohibition of all forms of discrimination to which they refer. Rather than the underlying intention was in both cases to leave it to the Common legislature and the Member states to take appropriate action to that effect. The Advocate General concludes that the Directive has no horizontal effect and that the Court is not obliged to misapply the national law, because in Mangold, the Court did not accept that the Directive has an horizontal direct effect. The Court bypassed the lack of it by ascribing direct effect to the corresponding general principle of law. b) The general principle of equality is applied as a means of interpreting the Directive 2000/78. c) The acceptance of the opposite opinion would raise serious concerns on the contribution of competences and the attribution of powers between the Community and the Member states.