The ECJ has considered the legality of legislation introducing a maximum age of 68 for doctors and dentists in the German NHS.
The ECJ held that the protection of the health of patients against the decline in the performance of dentists after age 68 potentially could be a legitimate aim. However, in this case it was not legitimate because the age limit was not applied to dentists outside the NHS. The ECJ went on to hold, however, that the German Government could succeed on an employment market argument. It upheld a legitimate aim of sharing out employment opportunities amongst the generations in the profession. Whether the age limit was appropriate and necessary for achieving that aim would depend on the local labour market and whether there was an excessive number of panel dentists. That was a matter for the national court to determine (Peterson v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe).
This decision echoes that of a UK employment tribunal in Seldon v Clarkson Wright and Jakes, where a wish to open up partnership opportunities for younger solicitors was a legitimate aim that could potentially justify a retirement age of 65.
Both of these ECJ decisions demonstrate that member states and their employers may have a considerable margin of appreciation when it comes to setting both lower and upper age limits taking into account occupational requirements. However justification will be difficult without the evidence to back up the employer's aims and the means of implementing them.