Case Comment: Prigge and Others -v- Deutsche Lufthansa AG-C-447/09

The European Court of Justice has recently issued its Judgment in the case of Prigge and Others -v- Deutsche Lufthansa AG-C-447/09. This Judgment is an important one following the repeal of the compulsory retirement age in the UK.

Mr Prigge and two colleagues were employed as pilots by Lufthansa. A collective agreement, which was recognised by German law and which applied to all crew members, provided for a compulsory retirement age of 60 - allegedly for the purpose of "guaranteeing air safety". As such, the employment of Mr Prigge and his two colleagues was terminated without notice at the end of the month in which they reached the age of 60. The pilots then brought age discrimination claims against Lufthansa.

Lufthansa asserted that the retirement age of 60 was necessary for the protection of public health and security, in light of the importance of airline pilots possessing particular physical capabilities which will inevitably diminish with age. The Equal Treatment Framework Directive (2000/78/EC), which provides for the prohibition of age discrimination in employment, contains provisions under which age discriminatory treatment may be permitted.

The ECJ stated that, whilst attempting to prevent human failure from causing aeronautical accidents constitutes a measure aiming to ensure public security and protection of health (which is a permissible legitimate aim under article 2(4) of the Directive), international legislation - which had been implemented into German law - did not prohibit pilots aged between 60 and 65 from flying commercial aeroplanes, and merely imposed conditions on their doing so.

Accordingly, the age limit of 60 applied by Lufthansa was not "necessary" to achieve the security or health objectives it had identified. In light of the aforementioned legislation, enforcing a retirement age of 60 was deemed to be disproportionate in the circumstances and so the discrimination was not objectively justified under article 6(1) of the Directive.

Employers should carefully consider the effects of any similar provision; review why they impose it; whether their aims are necessary; and whether they could be achieved in a less discriminatory manner.