The Court of Justice of the European Union (CJEU) has issued its latest decision on the topic of compulsory retirement and age discrimination.1

The Court held that a Hungarian law which reduced the compulsory retirement age of judges from 70 to 62 within a one year period was in breach of the age discrimination provisions of the Equal Treatment Directive. 

The Equal Treatment Directive (2000/78/EC) provides for circumstances in which Member States can permit treatment that would otherwise amount to direct age discrimination “… if within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives and if the means of achieving that legitimate aim are appropriate and necessary.”

The Court ruled that the lowering of the age was directly discriminatory. Following the exception set out above, it said although it was for a legitimate aim, the means sought to achieve that aim were not proportionate. Accordingly it was in breach of the provisions under the Directive. 

The case provides further useful analysis of what might be considered to be a legitimate aim and the means used to achieve that aim. It adds to the growing body of case law on the topic both at European level and Irish level in defining the circumstances of when direct age discrimination may be capable of being justified. 

Here the Court ruled that the aims of standardisation of retirement ages and establishing a balanced age structure (allowing access to the judiciary for younger members of the legal profession) were legitimate aims.  The CJEU followed earlier case law2 that establishing a balanced age structure within a workplace can be a legitimate aim as it enables the recruitment and promotion of younger people though the workforce. 

However although Hungary passed the first limb of the test, they were unable to satisfy the second limb of proportionality. The Court felt that reducing the age from seventy to sixty two was a very abrupt change which should have been staggered and more notice given to those affected. The Court also took into account that all other public sector retirement ages in Hungary were due to gradually start going up (from 62 to 65) in two years time. On this basis the Court said that the means used to achieve the aims were not appropriate as they were not proportionate. 

The case clearly illustrates that where achieving a balanced age profile within a work environment is cited as a legitimate aim in compulsory retirement cases that meaningful consideration must be given to the means used to achieve that aim i.e. the means must fulfil the requirement of proportionality or it will be at risk of falling foul of the Equal Treatment Directive.