The European Court of Justice (ECJ) has ruled that the protection of patients from declining performance of dentists due to their age may be a legitimate aim justifying difference in treatment on the grounds of age. However, whilst setting a maximum practising age of 68 for German national health service dentists is potentially lawful under the EC Equal Treatment Directive, it was not justifiable because German law permitted private dentists to practice beyond 68. The age limit was justifiable, however, on a different basis, namely because it gave opportunities to younger workers to join the health service(see Petersen v Berufungsausschuss für Zähn für den Bezirk Westfalen-Lippe). In another decision, the ECJ held that a German law which restricted applications to join the fire service to those under the age of 30 could be defended as a genuine occupational requirement. (see Wolf v Stadt Frankfurt am Main)

What happened in these cases?

In Wolf, Mr Wolf applied for a post in the Frankfurt Fire Service. However, he was told that his application would not be considered as the maximum recruitment age for such posts (which involved physically demanding tasks such as fighting fires and rescuing people) was 30. Mr Wolf brought proceedings in the German Courts on the basis that the maximum recruitment age was age discriminatory. The Court referred the case to the ECJ.

In Petersen, Ms Petersen, who practiced as a panel dentist for the German national health service, was informed that her authorisation to provide panel care would expire once she reached 68. German law provided that admission to practise as a panel dentist expires at the age of 68. However, outside this panel system, dentists can practice privately without any age restriction. Ms Petersen brought a claim in the German Courts for age discrimination. Consequently, the German Courts sought guidance from the ECJ on whether the Directive permitted a national law which sets a maximum age for practising as a panel dentist in order to protect patients health under a statutory health insurance scheme (on the assumption based on “general experience” that after this age there would be a decline in performance).

The ECJ Decision

The ECJ in Wolf held that the maximum recruitment age for 30 was not contrary to the Directive as it was a genuine occupational requirement within Article 4(1) of the Directive. Article 4(1) of the Directive provides that no discrimination will occur where there is a difference of treatment based on a characteristic related to age and that characteristic constitutes a genuine occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

The German Government said that the aim of the maximum recruitment age was to ensure “the operational capacity and proper functioning of the professional fire service”. The ECJ held that this constituted a legitimate objective within the meaning of Article 4(1). The ECJ’s reasoning was supported by Recital 18 of the preamble to the Directive which provides that the Directive does not require emergency services to recruit or retain persons who cannot carry out the range of functions that they may be called upon to perform in their job.

The German Government also provided evidence that only younger officials could cope with the exceptionally high physical demands of the fire service. Therefore the maximum recruitment age was needed to maximise the period in a career in which an official is able to perform those tasks. Having high physical capabilities was held to be a genuine and determining occupational requirement and this is related to age. The ECJ went on to hold that this was appropriate and proportionate to the objective, as recruitment at an older age would mean that the fire-service might be short of officials who could carry out the most physically demanding duties.

In Petersen, the German Government sought to rely on the exemption set out in Article 2(5) of the Directive which provides that the principle of equal treatment does not apply to national law that is necessary for the protection of health. It was argued that this maximum age was to protect the health of patients, because it was assumed from “general experience” that the performance of dentists would deteriorate from the age of 68 onwards. The ECJ held that the protection of patients from declining performance was a legitimate aim that might be considered necessary for the protection of health. However, the fact that panel dentists could practice privately outside the panel system after the age of 68, was inconsistent with that aim and undermined the prospect of it being consistently and systematically achieved. The ECJ then identified a further aim, that of ensuring the financial stability of the system, which could be considered necessary for the protection of heath. This aim could potentially be justified as it provided a means of limiting the pool of dentists employed within the national health system. The case will return to the national court in Germany to decide which of these aims might be achieved by the age limit.

The age limit could also be justified under the Directive, as an ‘appropriate and necessary’ means of giving younger people the opportunity of working as national health physicians. This would be a proportionate means of achieving a legitimate aim (as required by Article 6(1) of the Directive) if there were an excessive number of national health dentists, or a potential risk of such excess occurring. The national court in Germany will now have to decide whether any of these circumstances existed.

What these decisions mean for employers

In both cases the ECJ has accepted that age-related decline in performance is capable of justifying directly age discriminatory rules. Whilst in Wolf, (re the fire service) the German Government produced substantial evidence to prove this point, the same cannot be said in Petersen (re dentists) where the argument for age-related decline in performance was made on an assumption based on “general experience, Although the ECJ did not accept that the age limit could be justified (because it did not apply uniformly between the public and private sectors), it is significant that the ECJ considered age-related decline to be a valid assumption when considering whether a potentially discriminatory age cut off date is justified. This indicates that the ECJ is willing to accept a wide interpretation of the Directive in order to justify age-related discrimination. It would have been interesting, however, to see the ECJ’s conclusions should they have examined further the link between age and the decline in performance rather than just accepting this general assumption.

This wide interpretation of the Directive was also illustrated in Wolf where the ECJ gave a very broad interpretation of the genuine occupational defence by finding that a maximum recruitment age, as well as physical fitness, was genuine occupational requirement related to age.

In UK law, except in relation to age, direct discrimination cannot be justified. Therefore, direct discrimination on other grounds (such as race, ethnic or national origins, religion or belief, sexual orientation) can only be defended by establishing a genuine occupational requirement. There is a possibility that employers who are seeking to defend claims under these strands might try to rely on the ECJ’s wide interpretation of the genuine occupational requirement to defend other strands of discrimination claims. However, in reality, it would be difficult for an employer to try and make this argument “through the back door”.