In Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe Ms Petersen, a dentist born in 1939, was not allowed under German law to continue practising dentistry beyond her 68th birthday in June 2007. She submitted a claim for age discrimination which was referred to the European Court. In response, the German authorities claimed that there was justification for the 68 year age limit, relying on three legitimate aims: (i) protection of the health of patients covered by the statutory health insurance scheme (on the assumption that the performance of dentists declines after a certain age), (ii) preserving the financial balance of the statutory health insurance scheme and (iii) ensuring opportunities for younger people to become dentists.
The Advocate General accepted the submissions made on behalf of the German government and the European Court of Justice (ECJ) has partially agreed. There were factual issues with points (i) and (ii) so they might have succeeded but did not on the particular facts. However (iii) was successful and the significance is, of course, that it is this “fresh blood” point which is likely to be of the widest application in age discrimination cases. According to the Court:
“In accordance with Article 6(1) of the Directive, the aims which may be regarded as ‘legitimate’ within the meaning of that provision are inter alia legitimate employment policy, labour market or vocational training objectives…a measure intended to promote the access of young people to the profession of dentist in the panel system may be regarded as an employment policy measure.”
Meanwhile, in Wolf v Stadt Frankfurt am Main restricting applications for active jobs in the German fire service to people under 30 was prima facie age discriminatory but justifiable as a “genuine and determining occupational requirement”. Mr Wolf had applied for an “intermediate career post” in the German fire service but his application was rejected on the specific ground that he was over 30. It was suggested on behalf of the fire service that the age limit was justifiable on grounds including “the concern to ensure a long career for officials”, to “limit the amount of social benefits paid”, to “set up a balanced age structure within an occupation” and “to ensure a minimum period of service before retirement”.
The Advocate General took the view that the policy was age discriminatory but justified for the stated reasons and the ECJ agreed, observing that,
“…it is apparent that national legislation such as that at issue in the main proceedings which sets the maximum age for recruitment to intermediate career posts in the fire service at 30 years may be regarded, first, as appropriate to the objective of ensuring the operational capacity and proper functioning of the professional fire service and, second, as not going beyond what is necessary to achieve that objective”.
The cases are indicative of a trend to allow legitimate justifications as a response to claims of age discrimination which would otherwise succeed. This is of particular interest taking into account the current moves to abolish the UK state retirement age as reported in our blog post about what to expect in 2010.