Fine-tuning non-discrimination law
| DOI | 10.1177/1358229114558387 |
| Published date | 01 March 2015 |
| Date | 01 March 2015 |
| Subject Matter | Articles |
Article
Fine-tuning
non-discrimination law:
Exceptions and
justifications allowing
for differential treatment
on the ground of age in EU law
Elise Muir
Abstract
This article explores the outer and inner boundaries of the prohibition of discrimination
on grounds of age as established by European Union (EU) law and implemented in a
selected number of member states. The case law of the Court of Justice of the European
Union (CJEU) on the matter is marked by a broad interpretation of the material scope of
the prohibition of age discrimination. A large range of situations thereby fall within the
scope of EU law; yet the European Court has overall adopted a rather flexible approach
to acknowledging the legitimacy of justifications as well as the adequacy and necessity of
measures having a discriminatory effect. Some of the key substantive challenges faced by
courts relate to the delicate link between age and capabilities as well as to the interaction
between the prohibition of age discrimination and retirement ages. It will be argued that
the complexity of the CJEU’s case law on the matter is regrettable.
Keywords
Age, differential treatment, positive action, exceptions to non-discrimination require-
ment, justifications for different treatment, Employment Equality Directive
Faculty of Law, Maastricht University, Maastricht, The Netherlands
Corresponding author:
Elise Muir, Faculty of Law, Maastricht University, PO Box 616, 6200 MD Maastricht, The
Netherlands.
Email: elise.muir@maastrichtuniversity.nl
International Journalof
Discrimination and theLaw
2015, Vol. 15(1-2) 38–61
ªThe Author(s) 2014
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1358229114558387
jdi.sagepub.com
Introduction to EU age anti-discrimination law
That distinctions based on age may constitute illegitimate differential treatment is not
conceptually as straightforward as other forms of differential treatments captured by
anti-discrimination law. As the UK Supreme Court recently pointed out, everyone will
experience being part of a different age group at different stages of life.
1
Whilst age-
related bias may result in unfair treatment, an argument can be made (more convincingly
than as regards other grounds of discrimination) that if analysed over a life cycle, almost
every member of the society will in turn benefit and suffer from differential treatment of
various age categories. As a consequence, decision-makers have for years made – and to
some extent continue to make – use of age criteria to structure a wide range of policies.
2
The prohibition of discrimination on grounds of age is fairly recent.
3
European Union
(EU) equality law, together with a political context marked by the ageing of the work-
force, has played a major role in initiating reforms on the prohibition of age discrimina-
tion in employment across Europe. Unlike disability law,
4
the prohibition of age
discrimination is hardly visible in international law
5
beyond or besides EU law.
6
The key
instrument is Directive 2000/78, establishing a general framework for equal treatment in
employment and occupation
7
(hereafter ‘the Employment Equality Directive’) that gives
expression to the corresponding general principle of EU law as well as to the prohibition
of discrimination enshrined in Article 21 of the Charter of Fundamental Rights of the
EU (hereafter ‘CFEU’).
8
Just over 10 years after the expiry of its implementation period,
the Directive has largely been transposed in national legal orders. Yet much remains to
be done in terms of ensuring compliance with, as well as consistent interpretation of, the
provisions on age discrimination at both European and national level.
9
Besides the innovative nature of the legislative framework, one of the main reasons
for these remaining compliance and interpretation problems is the atypical legal design
of the relevant provisions when compared to other provisions of EU equality law.
10
While age discrimination is prohibited, decision-makers continue to benefit from a
remarkable leeway in the use of age-related criteria. The preamble of the Employment
Equality Directive reflects this ambiguity. On the one hand, ‘[t]he prohibition of age dis-
crimination is an essential part of meeting the aims set out in the Employment Guidelines
and encouraging diversity in the workforce’. On the other hand, ‘differences in treatment
in connection with age may be justified in certain circumstances [ ...] in particular by
legitimate employment policy, labour market and vocational training objectives’.
11
Arti-
cle 6(1) of the Directive is the cornerstone of the corresponding legal mechanisms. It cre-
ates an open-ended possibility to justify objectively differences of treatment directly as
well as indirectly based on age criteria. This is very unusual in EU equality law where
direct discrimination can normally only be justified under very limited circumstances.
EU equality law thus prohibits age discrimination in employment but, at the same
time, seeks to contain the impact of this prohibition on social policy. Unsurprisingly,
therefore, national authorities are still in the process of seeking to grasp the dynamics
of this sub-discipline of EU equality law. Approaches remain very diverse. Certain mem-
ber states, such as Germany and the Netherlands, have tackled the implementation of the
EU prohibition of age discrimination by engaging in political debates on the matter
resulting in the adoption of complex legal provisions.
12
Others such as Greece, Portugal
Muir 39
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