The Spanish Court recently referred a question to the ECJ as to whether a compulsory retirement provision in a collective agreement was lawful in light of the age discrimination provisions in the Equal Treatment Framework Directive. The Advocate General (AG) stated that the Framework Directive on age discrimination did not apply to state laws setting retirement ages (the fourteenth recital to the Directive expressly states that the Directive "shall be without prejudice to national provisions laying down retirement ages"). Further, even if the Directive did apply, a compulsory retirement age could be justified according to the AG. In this particular case, the compulsory retirement age had been adopted as part of a policy specifically designed to promote inter-generational employment. There was no doubt that the provision served a legitimate public-interest aim of employment and labour market policy. The legitimate objective must be "appropriate and necessary" to be justified but the AG highlighted that member states enjoy broad discretion in their choice of what measure is required to achieve their social and employment policy and there was no indication that fixing a retirement age of 65 would go beyond what was appropriate and necessary. It is not, in the AG's opinion, for the ECJ to substitute its own assessment of such complex national issues. (Palacios de la Villa v Cortefiel Servicios).

It will be interesting to see whether the ECJ follows the AG's opinion. If it does, it seems unlikely Heyday will succeed in its challenge to the UK mandatory retirement procedures contained in the Employment Equality (Age) Regulations 2006.