Both the National Council on Aging, operating under the names Heyday and Age Concern, and the UK Government will have been awaiting the ECJ’s decision in Félix Palacios de la Villa v Cortefiel Servicios SA Case C-411/05 with bated breath, as it could well turn out to be of significance to the former’s challenge to the UK default retirement age of 65. Giving its judgment yesterday, the ECJ held that the Equal Treatment Directive does not preclude a Spanish law permitting clauses in collective agreements that allow employees to be compulsorily retired when they reach a specified age.
The ECJ did not, however, follow the same reasoning as the Advocate-General (par for the course these days some might say). In his Opinion earlier this year he said that an obligation on an employee to retire when he or she reaches a certain age is outside the scope of the Directive, since recital 14 in the preamble states ‘this Directive shall be without prejudice to national provisions laying down retirement ages’. The ECJ took a much narrower view of recital 14, considering that it merely states that the Directive does not affect the competence of member states to determine retirement age and does not, in any way, preclude its application to national measures governing conditions for termination of employment once that retirement age has been reached. Since the Spanish legislation in question affected the duration of the employment relationship and an individual’s participation in the workforce, it had to be regarded as establishing rules relating to ‘employment and working conditions, including dismissals and pay’ within the meaning of Article 3(1)(c).
Despite this, the ECJ then went on to agree with the Advocate-General that, since it was introduced with the aim of promoting full employment, the Spanish law was objectively justified, and was not precluded by the Directive.
The question now is whether or not the UK Government can show that its default retirement age is objectively and reasonably justified by a legitimate aim, and that the means of achieving it are appropriate and necessary. However, a judgment in the Heyday case may not be handed down until as late as 2009.
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Comments (1)
Next April, I have my case examined before the Athens Administrative Court of Appeal. In my petition I seek to annul the Act of the Government of Greece that obliged me to retire at the age of 60 from the Diplomatic Service of Greece. The Government of Greece, not having implemented the Supreme Administrative Courts (Symboulio tis Epikrateias) decisions that annulled the refusal of the said Government to promote me to the rank of Minister Plenipotentiary B', used the fact that I was not promoted to the afore-mentioned rank to justify my early retirement, based on article 83 of the Law No. 2533/1998 which stipulated that those diplomats not having the ambassadorial rank would be obliged to leave the service at the age of 60, regardless if they had enough service in the Foreign Ministry to justify full pension, while the rest of the diplomats should retire at the age of 65.
The above article 83 of the afore-mentioned law is in full contradiction of the Directive 2000/78/EC (Framework Directive) and the Foreign Ministry of Greece never claimed (as it was its right to do so) that the above exception to the age limit was justified by its labour or insurance policy.
The interpretation of the Directive 2000/78/EC as above is based on the ECJ ruling on Mangold case (2005) which claimed that "age by itself cannot justify the forced retirement from service".
I would appreciate if you would kindly send me all additional information that would be useful to defend my case before the Athens Administrative Court of Appeal.
Posted by Nicolas | January 27, 2008 4:57 PM
Posted on January 27, 2008 16:57