Reflecting on Age Discrimination and Rights of the Elderly in the European Union and the Council of Europe
| Published date | 01 March 2007 |
| DOI | 10.1177/1023263X0701400103 |
| Date | 01 March 2007 |
| Author | Helen Meenan |
| Subject Matter | Article |
14 MJ 1 (2007) 39
REFLECTING ON AGE DISCRIMINATION AND
RIGHTS OF THE ELDERLY IN THE EUROPEAN
UNION AND THE COUNCIL OF EUROPE
H M*1
ABSTRACT
Since 2000 an abundance of right s is ostensibly available to persons living in the European
Union. Among the new groups to emerge as vi sible recipients of rights are the el derly and
victims of age discriminat ion. ese g roups are growing in importance not least because of
demographic ageing in the European Union. is article examines the source s and nature
of human rights for both groups and investigates whethe r they are better o in light of the
European Convention of Human Rights, Protocol 12 ECHR, the European Union Char ter
of Fundamental Rights, and the Revi sed European Social Charter, in particular. Despite
great advances, the reality is one of une ven protection of human rights for these g roups
throughout the European Union (EU), frequently due to the low rate of rati cation of
Council of Europe instruments. is reality has implications for individuals whose ac cess
to rights may depend on where they re side in the EU. e many pos itive developments al so
create a misleading image of a consi stent human rights culture in the EU. e disjointed
reality reinforces the important and compleme ntary role of each element of the human
rights’ matrix examined he re. It also highlights the need for ways of making it eas ier for
ordinary people to be aware of their ‘age’ rights and how best to acces s them.
Keywords: Age discr imination, Art icle 13 EC, Human rights, Rights of the elderly, EU
Charter of Fundamenta l Rights, Protocol 12
* Jean Monnet Chai r in European Law, Law School, Ki ngston University, Surrey, United Kingdom. My
sincere than ks go to Adam Tyson and Maria-Jose Cueto-Faus, D G Employment and Soci al A airs,
European Com mission, Jean-Paul Jacqué, Dire ctor of Legal Service, C ouncil of the European Union
and Alain Br un, DG Justice and Home a airs, Eu ropean Commission. I wou ld also like to than k my
colleague s Professor Gwyneth Pit t and Nicola Aries, Ki ngston University, for their helpfu l comments
on an earlier d ra a nd above all the Europea n Commission, for a Jean Monne t research award, which
supported the eldwork vital to this projec t. Any errors remain my ow n.
Helen Meenan
40 14 MJ 1 (2007)
§1. I N TRODUC TION
e European Union (EU) is undergoing revolutionary demographic change t hat will
witness signi cant ageing and shri nking of the EU populat ion and a decline in the
number of young people, among other major impacts .1 e period 2006 –2010 has been
described as ‘t he last window of opportunity before the working-age popu lation begins
to shrink ’ and 2010 as ‘a pivotal year in which Europe wi ll take a major demographic
turn’.2 2010 is also the target date set by the Stockholm Eu ropean Council i n 2001, for
achieving the goa l of increasing the average EU employment rate among older women and
men (55–64) to 50% as one way of meeting the chal lenge of an ageing populat ion. us
demographic changes are gr adually helping to raise the pro le of all issues connected
with age and ageing w ithin the EU.
Another phenomenon is currently helping to shape our lives . Never in the history
of European integration have there been so many rights ostensibly available to so many
people as in the period com mencing with the year 2000 . Older people and victims of age
discrimi nation have emerged as visible ‘new’ recipients of rights, thanks in pa rticular, to
the European Union Char ter of Fundamental Rights (EUCFR or Char ter), proclaimed in
2000 and the Employ ment Equality Directive adopted under Ar ticle 13 of the European
Community Treaty (EC Treaty) in 2000.3 A gainst this background and prior to the
demographic turn in 2 010, this ar ticle seeks to identify a nd examine ‘age’ rights available
within the EU. In addit ion to the EUCFR, Art icle 13 EC Treaty (Article 13 EC) and the
Employment Equality Di rective, this Ar ticle will also foc us on the European Convention
on Human Rights (ECHR), Protocol 12 to the ECHR a nd the Revised European Social
1 e proportion of older persons w ill have reached 39% of the popu lation by 2050 and the work ing-age
population wi ll shrink by 48 mil lion people between now and 2050. O ther impacts include increa sed
life expectancy and an increase in the old age dependency ratio, that is the ratio of people over 65 to
those of working a ge, which is set to double and reach 51% by 2050. Note genera lly, Communication
of 12 October 2006 ‘ e de mographic future of Europe – from c hallenge to opportun ity’, COM(2006)
571 na l; Green paper ‘Confronting demo graphic change: a new solidar ity between the generations’,
COM(2005) 94 nal ; Communication of 3 M arch 2004 ‘Inc reasing the employ ment of older workers and
delaying the e xit from the labour marke t’, COM(2004) 146 nal a nd Communication of 21 May 1999
‘Towards a Europe for All A ges – Promoting prosper ity and Intergene rational Solid arity’, COM(99)
221 na l.
2 DG Employment and Socia l A airs, European Com mission, Repor t of the High Level Gro up on the
Future of Social Policy in an Enlarged European Union, (European Commu nities, Belgium, 20 04), 20,
38; also avai lable at http://www.europa.eu.i nt/employment_social /news/2004/jun/h lg_social _enlarg_
en.html.
3 Referring to Counci l Directive 2 000/78 on Equa l Treatment in employment and o ccupation which
prohibits discr imination on t he grounds of relig ion or belief, disa bility, age or sexu al orientation, [200 0]
OJ L 303/16 (the Employment Directive). Note als o Council Dire ctive 200 0/43 on Equal treat ment
between person s irrespect ive of racial or ethnic origi n, [2000] OJ L 180/22 (the Race Di rective) and
Council Dire ctive 2004 /113/EC implementing the pri nciple of equal treat ment between men an d
women in the acces s to and supply of goods and serv ices [2004] OJ L 373/37.
Re ecting on Age Disc rimination and R ights of the Elderly i n the EU and the Counci l of Europe
14 MJ 1 (2007) 41
Charter (RESC).4 e inclusion of the ECHR and the RESC in this piece is rein forced
by the fact that they a re key sources for non-discrimination provisions and rights of the
elderly, respectively, contained in the EUCFR. For reasons of convenience and releva nce
to the particu lar rights under discussion, this ar ticle will occasionally refer collec tively
to the selected inst ruments as the European human r ights matrix.
It wi ll bec ome cle ar tha t the ‘a ge’ rig hts der ivin g from t he abov e inst rumen ts fal l into
two broad categories, a prohibition against d iscrimination (which in t he case of the ECHR
does not explicitly mention age) and the rig hts of the elderly. Rights of the elderly were
introduced into EU law for the rst time in Article 25 EUCFR, which reads as follows,
‘ e Union recognises and respects the rights of t he elderly to lead a life of dignit y and
independence and to participate in social and cultural life’. ese rights a re not de ned
or clari ed in t he EUCFR and are located in the Title III, Equa lity. However, the Updated
Explanations on the tex t of the EUCFR, states that Article 25 draws on Ar ticle 23 RESC
and Articles 24 and 25 of t he Community Char ter of the Fundamenta l Social Rights of
Work ers. us rig hts of the elderly concern more general and program matic measures
in favour of older people in comparison with anti-discrimination provisions. is
distinct ion will be considered more fully below.
is article w ill explore what age discri mination rights and rights of the elderly mea n
within thei r respective instruments and w ill examine whether, and to what extent, older
people can claim r ights and protection thereunder. It will als o highlight the importa nce
of so law measures for achieving rights of the elderly in particula r. is exercise is all
the more important when viewed aga inst e orts to increase the par ticipation of people of
all ages and older people i n the workforce and the need to prepare for the growing body
of elderly people in the EU.
A. AGE AND DISCRIMINATION IN THE HUMAN RIGHTS MATRI X
ere was no mention of age or older people in the EC Treaty prior to the Ams terdam
Treaty, which incorporated Article 13 EC Treaty. Article 13 reads ‘Without prejudice
to the other provisions of this Treaty and within the limits of the powers conferred
by it upon the Community, the Council, ac ting unani mously on a proposal from the
Commission and a er c onsulting the European Parl iament, may take appropriate action
to combat discrimination based on sex, racial or ethnic origin, religion or belief, age or
sexual orientation’. However, the previous absence of age in the EC Treaty did not prevent
so law measures bei ng taken for age and older people in particul ar.5 e EUCFR came
a er Article 13 EC and was solemnly proclaimed on 7 December 200 0. Its aim was to
4 European Treaty Series No. 5, signed at Rome 4.xi.1950, CETS No 35 18/10/1961 and CETS No. 163
3/5/1996, respectively.
5 For example, Council De cision of 19 January 2 001 on Guidelines for Mem ber States’ employment
policies for the yea r 2001, which included g uidelines on li felong learni ng and developing a poli cy
for active ageing , [2001] OJ L 22/18, L 22/20 para. B and L 22/21-L 22/22, res pectively. Note als o
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