Age Discrimination, Justification and Firemen and Dentists: Cases C-229/08 and C-341/08

The Court of Justice has handed down two judgments on age discrimination: Case C-229/08 Colin Wolf concerns age limits for the employment of firemen and Case C-341/08 Domenica Petersen deals with age limits for panel dentists. In both judgments the Court held that age discrimination was permitted if done for the right reasons such as when it is required by the nature of the job (like being a fireman) or if it is necessary for the protection of health or if it is justified by a legitimate aim, including employment policy, labour market and vocational training objectives (such as in the case of dentists).

Council Directive 2000/78/EC of November 27th 2000 establishing a general framework for equal treatment in employment and occupation prohibits many forms of discrimination in conditions of employment, self-employment and occupation, including discrimination based on age.

In Case C-229/08 Colin Wolf, Mr Wolf applied to become a fireman but when he was to be recruited he was 31 years old, over the age limit of 30 as laid down in the terms of the Frankfurt fire brigade to which he had applied. His application was rejected and he brought an action in the German courts claiming that he had been the victim of illegal age discrimination. The German court seised asked the Court of Justice whether the age limit in issue was a justified form of discrimination according to Directive 2000/78/EC.

The Court of Justice held that it was justified and thus not prohibited by the Directive. It held that the concern to ensure the operational capacity and proper functioning of the professional fire service constitutes a legitimate aim. In addition, the possession of especially high physical capacities may be regarded as a genuine and determining occupational requirement for carrying on the occupation of a fireman, who fights fires and rescues people. The Court referred to data provided by the German Government according to which very few officials over 45 years of age have sufficient physical capacity to perform the fire-fighting part of their activities.

An interesting little procedural point came up in that case. The referring German court asked whether the discrimination in issue was justified under Article 6 §1 of Directive 2000/78/EC (dealing with the justification of discrimination) but the Court of Justice considered whether setting an age limit for firemen was discrimination in the first place according to Article 4 §1 (which states that a difference of treatment is not discrimination if it constitutes a genuine and determining occupational requirement). The Court held that it could deal with Article 4 §1 of the Directive even if, formally, the referring court has limited its question to the interpretation of Article 6 §1 of the Directive because the Court of Justice must provide the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating in the case pending before it, whether or not it has referred to them in the wording of its question (Case C‑321/03 Dyson [2007] ECR I‑687, paragraph 24; Case C‑392/05 Alevizos [2007] ECR I‑3505, paragraph 64; and Case C‑532/06 Lianakis and Others [2008] ECR I‑251, paragraph 23). The Court of Justice must extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation in view of the subject-matter of the dispute (Case C‑115/08 ČEZ [2009] ECR I‑0000, paragraph 81).

In Case C-341/08 Domnica Petersen, Ms Petersen was admitted in Germany to provide panel dental care from 1974. She reached the age of 68 in April 2007. The competent Admissions Board for Dentists decided that her license to practice would expire at the end of June 2007. She challenged that decision before the Administrative court in Dortmund which then questioned whether the age limit of 68 laid down in German law for dentists providing care under the statutory health insurance scheme was compatible with Directive 2000/78/EC. (In Germany 90% of patients are covered by the statutory health insurance scheme. Outside the panel system, dentists can practise their profession whatever their age).

The Court of Justice held that a member State may legitimately consider it necessary to set an age limit for the practice of a medical profession such as that of a dentist.

The age limit must be set for the right reasons, however. The Court pointed out that the directive precludes a national measure setting a maximum age for practising as a panel dentist, in this case 68 years, where the sole aim of that measure is to protect the health of patients against the decline in performance of those dentists after that age, since that age limit does not apply to non-panel dentists. Such a measure lacks consistency and cannot therefore be necessary for the protection of health.

On the other hand, the directive allows such an age limit where its aim is to share out employment opportunities among the generations within the profession of panel dentist, if, taking into account the situation in the labour market concerned, the measure is appropriate and necessary for achieving that aim. The age of 68 would appear to be sufficiently high to serve as the endpoint of admission to practise as a panel dentist.

It is for the national court to identify the aim pursued by the age limit for panel dentists. If the age limit, having regard to its objective, were contrary to the directive, it would be for the national court hearing a dispute between an individual and an administrative body such as the Admissions Board for Dentists to decline to apply it, even if it had been introduced before the directive and national law made no provision for disapplying it.

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