First European opinion on compulsory retirement ages – News – agediscrimination.info

This opinion was given in a Spanish case, where a provision of national law is being challenged as incompatible with the Directive on age discrimination. The law in question allows collective agreements to include clauses for compulsory retirement. These clauses are lawful where the only conditions for compulsory retirement are that the employee has reached normal retirement age and fulfils social security requirements for entitlement to draw a pension.

The Spanish Court referred the issue to the ECJ, asking the following questions:

· Does the principle of equal treatment relating to age, set out in the EC Treaty and the Framework Directive, prohibit such a law?

· If so, does this require the Spanish Court to disapply the provision of the law which makes the compulsory retirement clauses lawful?

The case was lodged with the ECJ in November 2005, and the Advocate General’s opinion has just been published. This opinion is that the Spanish law in question is not prohibited by the principle of equal treatment related to age. This is for 2 reasons:

1. A national law providing a compulsory retirement age is not covered by the Directive. This is because compulsory retirement does not relate to “employment and working conditions including dismissals and pay”, and so falls outside the scope of the Directive.
2. Even if it is covered by the Directive, national rules providing for a compulsory retirement age would be justified. The legitimate aim of such rules is to promote intergenerational employment. It is not for the ECJ to substitute its own assessment of such complex issues, which are matters for national government, unless the measure is “manifestly disproportionate”.

This is only a recommendation to the ECJ, and is not binding on the court when it hears the case. However, it is rare for an ECJ decision to take the opposite view to that of the Advocate General, meaning that the opinion is potentially very significant for other challenges to compulsory retirement laws – including the challenge to UK law brought by Heyday.

Félix Palacios de la Villa v Cortefiel Servicios SA, José María Sanz Coral and Martin Tebar Less (ECJ C-411/05)

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