A maximum age can be justifiable but is dependant on the particular facts and circumstances of the case. The German national health system introduced 68 as the maximum age for dentists and doctors practicing on the national health panels. The question for the ECJ to consider was whether this could be justified. It was argued that doctors and dentists show a decline in performance from the age of 68 onwards and therefore this rule was put in place to protect the health of patients. However, the ECJ found that due to the fact that doctors and dentists working outside of the national health system panel were not bound by such a restriction, it could not be said to be a necessary measure in the interest of public health.

While the ECJ could not justify the maximum age on a national basis, it did suggest that an alternative objective would provide justification for such a measure. It could be used to assist in ensuring that employment opportunities are distributed among the generations in local job markets, for example, in areas where the national health panel system is predominant or there is a risk that it could become so.

Petersen v Berufungsausschusss fuer Zahnaertze fuer den Bezirk Westfalen-Lippe