Introduction to EU Anti-discrimination Law

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Module 7:
The protected grounds of age

 

This module examines in more detail the protection from discrimination on the grounds of age.

An overview of the issues raised in this module is provided by Prof Malcolm Sargeant which highlights key issues relating to discrimination on grounds of age.

Click here to see the video. Video of Prof Malcolm Sargeant

Under the Framework Directive age discrimination is only prohibited in relation to employment, occupations, vocational training and related fields. Unlike racial discrimination, age discrimination is not prohibited in the provision of goods and services, education and housing. However, it is important to note that many Member States have gone beyond the minimum requirements of the Framework Directive in their national laws.

Protection from age discrimination is also different from the other grounds of race, religion or belief, sexual orientation, disability and gender in that direct age discrimination can be justified and lawful in certain circumstances.

Under Article 6 of the Framework Directive age discrimination is not unlawful where:

  • differences of treatment on grounds of age are objectively and reasonably justified by a legitimate aim (such as legitimate employment policy, labour market and vocational training objectives); and
  • if the means of achieving that aim are appropriate and necessary.

Article 6 goes on to provide some examples of such lawful direct age discrimination:

“(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, 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 to employment or to certain advantages linked to employment;
(c) the fixing of a 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.”

Although it is clear from the Framework Directive that direct age discrimination can be justified, several decisions by the Court of Justice of the EU have confirmed that the prevention of age discrimination remains a fundamental principle of EU law. In Kucukdeveci Case C-555/07 the Court reaffirmed what it had held in the Mangold decision (Case C-144/04) and ‘acknowledged the existence of a principle of non-discrimination on grounds of age which must be regarded as a general principle of European Union law’. This means that the same degree of analysis is required as with all of the other protected grounds, in determining whether age discrimination is justified.

To date there have been significantly more cases relating to age discrimination before the CJEU than any of the other protected grounds. Broadly speaking these cases fall into three categories:

  • cases concerning the lawfulness of national or sector specific retirement ages;
  • cases concerning the maximum age at which a person can enter a profession or field of work;
  • cases concerning age discrimination against younger workers.

The case studies below provide examples of the issues that have arisen in relation to each category of cases.

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