[JURIST] A legal adviser to the European Court of Justice (ECJ) [official website; JURIST news archive] issued an opinion [ECJ materials] Tuesday that UK regulations permitting mandatory retirement policies do not violate an EU anti-discrimination law. ECJ Advocate General Jan Marzak concluded that although the UK's Employment Equality (Age) Regulations [text] fall within the scope of the European Directive on Equal Treatment [text, PDF], age-based classifications are justifiable in some circumstances. Marzak wrote:
[A] rule such as that at issue in the main proceedings, which permits employers to dismiss employees aged 65 or over if the reason for dismissal is retirement, can in principle be justified under Article 6(1) of Directive 2000/78 if that rule is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market and it is not apparent that the means put in place to achieve that aim of public interest are inappropriate and unnecessary for the purpose.The group Age Concern England [advocacy website], which challenged the UK regulations, stated [press release], "Millions of older workers in the EU will be fuming that the Advocate General thinks ageism counts for less than other forms of discrimination." Advocate general opinions are not binding on the ECJ but are followed in most cases. Once the ECJ rules on the case, it will be returned to the UK High Court [official website], where the British government must present evidence to justify the regulations. Reuters has more. London's Telegraph has local coverage.
Last year, the ECJ rejected an advocate general's opinion [JURIST report; OUT-LAW report] in a Spanish case [ECJ materials] challenging an employer's mandatory retirement policy. The ECJ found that such policies do not violate the EU prohibition against age discrimination if intended to further the legitimate public interest of increasing employment and if the retirees are provided with full pensions. In February, the ECJ ruled [JURIST report] that dismissing an employee because she was undergoing in vitro fertilization treatment violated the equal treatment directive. In that case, an Austrian woman claimed that she was entitled to full payment of her salary and protection against dismissal from the time fertilization of her egg took place, even though the egg had not yet been implanted in her uterus.