European Union: The Changing Horizon Of Employment Law In The Aviation Sector

Last Updated: 9 February 2012
Article by Peter Roser

During 2011, the Court of Justice of the European Union (CJEU) delivered two important judgments that will have a considerable impact on the employment rights afforded to airline pilots.

Age discrimination

In Prigge v Lufthansa, the CJEU considered whether the compulsory retirement age of 60 for Lufthansa airline pilots, contained in a collective agreement recognised by German law, was contrary to the age discrimination provisions of the Equal Treatment Framework Directive (ET Directive). This was in light of the fact that German and international law fixed the age limit for airline pilots at 65.

Facts

Mr Prigge and two colleagues were employed as pilots by Lufthansa. In accordance with the applicable collective agreement which was recognised by German law their employment was terminated without notice at the end of the month in which they each attained the age of 60. The purpose of this compulsory retirement provision was to ensure air safety. The pilots brought age discrimination claims, and on appeal the German Federal Labour Court referred the matter to the CJEU for a preliminary ruling.

Legal issues

The CJEU considered the impact of the ET Directive, which provides for the prohibition of age discrimination in employment.

The ET Directive incorporates Articles under which age discriminatory treatment might be permitted. The key Articles that were considered during the preliminary ruling were as follows:

  • Article 2(5), which provides that the principle of equal treatment is without prejudice to "measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others". Consequently, Member States are permitted to authorise social partners to adopt measures within collective agreements on condition those measures fulfil the requirements set out in Article 2(5)
  • Article 4(1), which permits Member States to provide that differences of treatment on grounds of age shall not be discriminatory where a characteristic related to age "constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate"
  • Article 6(1), which permits Member States to allow differences of treatment on grounds of age to be objectively 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"

The CJEU considered whether the requirement to retire pilots at the age of 60 was permitted by Articles 2(5), 4(1) and/or 6(1).

The first issue the CJEU considered was whether the retirement age of 60 was necessary for the protection of public health and security. While Lufthansa had elected a compulsory retirement age of 60, international legislation that had been implemented into German law did not prohibit pilots aged between 60 and 65 from flying commercial aeroplanes. The International Joint Aviation Authorities Code (incorporated into German law) allowed pilots aged between 60 and 65 to fly if there was another pilot on board aged under 60. The absolute age limit adopted by Lufthansa was, however, only 60. Consequently, the CJEU found that the compulsory retirement age was not necessary for the achievement of the pursued objective of public safety and protection of health and therefore the exception provided by Article 2(5) did not apply.

The second issue the CJEU considered was whether there was a genuine and determining occupational requirement within the meaning of Article 4(1) that pilots be under 60. Lufthansa argued that it was essential that airline pilots possess particular physical capabilities, which undeniably diminish with age. Therefore, possessing those capabilities should be considered as a "genuine and determining occupational requirement" relating to age within the meaning of Article 4(1). The CJEU rejected this argument and held that Article 4(1) of the ET Directive had to be interpreted as precluding a clause in a collective agreement which fixed at 60 the age limit from which pilots were considered as no longer possessing the physical capabilities to carry out their professional activity. This was because national and international legislation fixed that age at 65.

The third and final issue the CJEU considered was whether retirement could be objectively justified under Article 6(1). As set out above, this contains a list of possible legitimate aims including: employment policy, labour market and vocational training objectives. Lufthansa argued that air traffic safety was a legitimate aim for the purposes of justifying direct age discrimination. The CJEU noted, however, that it had previously held that legitimate aims must be social policy objectives, such as those related to employment policy, the labour market, or vocational training. Therefore, an aim such as air traffic safety was not a legitimate aim under Article 6(1). On first reading, this seems an astonishing decision, given the potential risks to employees, passengers and others. However, the CJEU was commenting on the limited circumstances that apply under Article 6(1) and that focus on social policy objectives as opposed to other objectives, which are in fact protected by the exceptions provided by Articles 2(5) and 4(1).

Conclusion

This ruling shows that a compulsory retirement age will fall foul of the ET Directive, where it does not follow the age limit imposed by domestic and international law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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