In Prigge and others v Deutsche Lufthansa AG the ECJ held that a compulsory retirement age of 60 for Lufthansa airline pilots was in breach of the Equal Treatment Directive.
Mr Prigge and his colleagues were employed by Lufhansa as pilots. A collective agreement governing their contracts provided that their employment would be terminated without notice at the end of the month in which they reached 60.
The pilots brought claims that they were discriminated against by reason of their age and the claim was referred to the ECJ. The ECJ noted that German and international law has fixed the compulsory age limit for pilots at 65 and that therefore the age limit of 60 was not justified as ‘necessary’ for the protection of heath under Article 2(5) of the Directive which permits limited exemptions. The absolute age limit of 60 in the collective agreement ‘was not necessary for the achievement of the pursued objective’.
The ECJ also rejected the defence that airline pilots require certain physical attributes which decline with age. Finally, it also held that the retirement age could not be objectively justified because the ECJ had previously held that legitimate aims must be social policy objectives and an aim such as air traffic safety does not fall into this category. This is arguably a curious decision since the safety of passengers would seem to fall squarely within this category.
In this case, the ECJ was obliged to take into account national and international air safety rules which permitted airline pilots to continue flying until they were 65. It may have been a different outcome without such evidence.