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15 July 2009
The Federal Labour Court recently asked the European Court of Justice (ECJ) to rule on whether the stipulation of a fixed retirement age of 60 for pilots as one of the terms of a collective employment agreement constitutes a violation of the EU Employment Directive (2000/78/EC).
The pilot in question had been employed by the airline for many years. A referral clause in the employment terms, the collective agreement known as 'Cockpit(1)', applied to his employment relationship. The collective framework provides for the automatic termination of the employment relationship at the age of 60 without any need for either a termination notice nor social justification.
When the employee reached the age of 60, the airline company informed him that his employment relationship had been terminated. The pilot took legal action, claiming adverse treatment due to age, and requested the courts to deem the relevant clause in the collective agreement ineffective and to reinstate him to his position.
The courts of first and second instance rejected the pilot's action, referring to the previous jurisprudence of the Federal Labour Court, which deemed such retirement age clauses to be effective.
Upon appeal of the employee, the Federal Labour Court suspended the proceedings and referred the case to the ECJ. The ECJ must now provide a preliminary ruling on the question of whether the retirement age clause terminating employment at 60 years is contrary to EU law.
Retirement age clauses must be assessed in great detail with regard to Article 6 of the directive. According to Article 6, 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: (i) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young persons, elder employees and persons with caring responsibilities in order to promote their vocational integration or ensure their protection; and (ii) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment.
The General Equal Treatment Act, which entered into force in 2008, implemented the terms of the EU Employment Directive into national law.
To date, the Federal Labour Court has considered retirement age clauses for pilots which terminate their employment at 60 to be effective, based on the notion that the tasks carried out by a pilot require special physical and mental fitness, which could both become impaired at a certain age.
Furthermore, in a related decision of June 18 2008, the Federal Labour Court considered a general retirement age of 65 years to be generally effective. The differences of treatment on grounds of age do not constitute discrimination, the court held, since the adverse treatment is justified by a legitimate aim of the employment policy.
In the context of the General Equal Treatment Act, as well as in the context of more recent jurisprudence of the ECJ, it is unclear as to whether the Federal Labour Court will retain its current interpretation of retirement age clauses or will consider a readjustment of its jurisdiction. This uncertainty was compounded by a decision of October 16 2008, in which the Federal Labour Court decided that the fixed retirement age for cabin staff was ineffective due to the lack of justification by a legitimate aim.
For further information on this topic please contact Julia Zange at Arnecke Siebold by telephone (+49 69 97 98 85 0), fax (+49 69 97 98 85 85) or email (firstname.lastname@example.org).
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