The European Court of Justice (ECJ) has given its decision in the long-awaited case of Birgit Bartsch v Bosch. It has been hoped that the case might clarify the extent to which cost may be taken into account as a legitimate factor in an objective justification defence to a pensions age discrimination claim. In this case, a provision in a German pension scheme that denied a spouse a pension if the member’s widow or widower was more than 15 years younger than the member was challenged.

However, the ECJ held that the EC law on age discrimination did not apply in this case, thus avoiding the need to consider the objective justification argument. This was because the member in question had died in 2004, before the deadline for implementing the age discrimination provisions of the EC directive had expired (1 December 2006) and at the time there were no national laws implementing the age discrimination prohibitions.