THE EUROPEAN COURT OF JUSTICE (ECJ) has published its long-awaited decision¹ in the Heyday case. Heyday, which is part of Age Concern, argues that the provision in the UK’s age-equality laws for what is effectively a default retirement age of 65 is unlawful.

Although some aspects of the ECJ’s judgment seem open to different interpretations, it has more or less followed the Op inion of Advocate General Mazák (OP, Nov ember 2008), which supported the UK government’s approach to implementing the EU’s age-equality measures.

Questions before the court

The case was referred to the ECJ by the High Court after Age Concern argued that the UK’s Age Equality Regulations (OP, June 2006) do not correctly transpose the EU’s Equal Treatment Framework Directive for equal treatment in employment and occupation (Directive 2000/78 EC) into national law. The two main questions before the ECJ were:

• whether the scope of the Directive extends to national rules that allow employers to dismiss employees aged 65 and over by way of retirement; and
• whether member states should be required to define the circumstances that may justify dif ferent treatment on the grounds of age or if it is sufficient for legislation to include the more general justification of discrimination being allowed if it is a proportionate means of achieving a legitimate aim.

ECJ’s ruling

Regarding the first question, the ECJ follows the advocate general’s Opinion in deciding that it is quite clear as a result of its earlier decisions, in cases such as Palacios de la Villa (OP, November 2007), that the Directive applies to national rules allowing employers to retire employees at the age of 65.

On the second question, the court rejects Age Concern’s argument that the inclusion in the Directive of a list of circumstances in which age discrimination is permitted means that such a list should be included in the UK’s legislation. The ECJ notes that the Directive allows member states to provide for certain kinds of difference in treatment on grounds of age if they are “objectively and reas onably” justified by legitimate social aims, such as employment policy, or labour market or voc ational training objectives. However, it adds that discrimination is not permitted on grounds associated with an individual employ er, such as the need to cut costs or improve competitiveness.

The ECJ also stresses that the UK government has the burden of establishing, to a high standard of proof, that the means chosen to achieve the relevant social policy aims are appropriate and necessary.

Next stage

The ECJ was not asked to reach a conclusion on the legality of the UK’s default retirement age. That task will fall to the High Court when the case returns there and views differ on the possible outcome. The majority view is that the ECJ’s ruling supports the UK’s interpretation of the Directive and that the Heyday challenge will fail.

However, law firm Eversheds supports Age Concern’s view that the ECJ’s ruling re presents a “significant victory for the charity”. Age Concern believes that comments made by the ECJ on the standard of proof required to justify the current law will present the government with problems. Eversheds thinks that as a result of the decision it will be difficult for “individual employers to impose any rule that discriminates on the grounds of age at all”.

¹ Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise & Regulatory Reform, Case C-388/07, available via the search page on the ECJ website (at curia. europa.eu/jurisp/cgi-bin/form.pl?lang=en) – click on case law, then enter case number and press “Submit”.