CELEX: 62018CJ0396
Reference for a preliminary ruling
Air transport
Regulation (EU) No 1178/2011
Annex I, Point FCL.065
Scope ratione temporis
Directive 2000/78/EC
Equal treatment in employment and occupation
Discrimination on grounds of age
Article 2(5)
Article 4(1)
National legislation providing for the automatic termination of the employment relationship at the age of 60
Aircraft pilots
Protection of national security

This request for a preliminary ruling concerns the interpretation of FCL.065 of Annex I to Commission Regulation (EU) No 1178/2011 of 3 November 2011 laying down technical requirements and administrative procedures related to civil aviation aircrew pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council (
OJ 2011 L 311, p. 1
), as amended by Commission Regulation (EU) No 290/2012 of 30 March 2012 (
OJ 2012 L 100, p. 1
) (‘Regulation No 1178/2011’), and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (
OJ 2000 L 303, p. 16
).
The request has been made in proceedings between Mr Gennaro Cafaro and his former employer, DQ, concerning the automatic termination of his employment relationship on the ground that he has reached the age of 60.
Legal context
European Union law
Regulation No 1178/2011
Article 1 of Regulation No 1178/2011 provides as follows:
‘This Regulation lays down detailed rules for:
(1)
different ratings for pilots’ licences, the conditions for issuing, maintaining, amending, limiting, suspending or revoking licences, the privileges and responsibilities of the holders of licences, the conditions for the conversion of existing national pilots’ licences and of national flight engineers’ licences into pilots’ licences, as well as the conditions for the acceptance of licences from third countries;
…’
Article 2 of that regulation, entitled ‘Definitions’, provides as follows:
‘For the purposes of this Regulation, the following definitions shall apply:
(1)
“Part-FCL licence” means a flight crew licence which complies with the requirements of Annex I;
…’
Article 12 of that regulation, entitled ‘Entry into force and application’, provides:
‘1.   This Regulation shall enter into force on the 20th day following its publication in the
Official Journal of the European Union
.
It shall apply from 8 April 2012.
1b.   By way of derogation from paragraph 1, Member States may decide not to apply the provisions of Annexes I to IV until 8 April 2013.
…
7.   When a Member State makes use of the provisions of paragraphs 1b to 6 it shall notify the [European Commission] and the [European Aviation Safety Agency]. This notification shall describe the reasons for such derogation as well as the programme for implementation containing actions envisaged and related timing.
…’
Point FCL.065 of Annex I to Regulation No 1178/2011, entitled ‘Curtailment of privileges of licence holders aged 60 years or more in commercial air transport’, provides as follows:
‘(a)
Age 60-64. Aeroplanes and helicopters. The holder of a pilot licence who has attained the age of 60 years shall not act as a pilot of an aircraft engaged in commercial air transport except:
(1)
as a member of a multi-pilot crew; and
(2)
provided that such a holder is the only pilot in the flight crew who has attained the age of 60 years.
(b)
Age 65. The holder of a pilot licence who has attained the age of 65 years shall not act as a pilot of an aircraft engaged in commercial air transport.’
Directive 2000/78
Recital 23 of Directive 2000/78 states:
‘In very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate. Such circumstances should be included in the information provided by the Member States to the Commission.’
Pursuant to Article 1 thereof, the purpose of that directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.
Article 2 of that directive, entitled ‘Concept of discrimination’, provides as follows:
‘1.   For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2.   For the purposes of paragraph 1:
(a)
direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
…
5.   This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.’
Article 4(1) of that directive provides:
‘Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’
Italian law
It is apparent from the decision to refer that DQ is an air transport company incorporated under Article 25 of Legge n. 124 ‐ Sistema di informazione per la sicurezza della republica e nuova disciplina del segreto (Law No 124 on the information system for the security of the Republic and the new rules on the classification of confidential data) of 3 August 2007 (GURI No 187 of 13 August 2007, p. 4) that carries out confidential activities for the purposes of the Italian State’s secret services with a view to protecting national security.
The fourth paragraph of Article 744 of the Codice della navigazione (Navigation Code) provides that aircraft used by public or private bodies for activities associated with protecting national security are deemed to be equivalent to State aircraft.
According to the first paragraph of Article 748 of the Navigation Code, the provisions of that code do not apply to State aircraft.
The third paragraph of Article 748 of the Navigation Code provides that flight operations by aircraft deemed to be equivalent to State aircraft are to be carried on in a manner that guarantees an adequate level of safety, to be determined in accordance with the special rules adopted by the competent State administrative authorities.
According to the information provided by the referring court, the decreto del Presidente del Consiglio dei Ministri sui limiti di impiego del personale navigante di [DQ] (Prime Ministerial Decree laying down rules governing limitations on employment for [DQ] aircrew) of 9 September 2008 (‘the DPCM’) was adopted under the third paragraph of Article 748 of the Navigation Code.
As set out in the DCPM:
‘Taking into account the aims set out in the preceding articles, it is established that [DQ’s] pilots may carry on their occupational activities until they reach the age of 60 years but may not do so beyond that age.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
Mr Cafaro was employed by DQ as an aircraft pilot from 26 September 1988 to 19 September 2012.
By letter dated 19 January 2012, DQ informed Mr Cafaro that his employment contract would terminate automatically on 19 September 2012 on the ground that he would reach the age of 60 on that date.
Mr Cafaro brought an action before the Tribunale di Roma (District Court, Rome, Italy) seeking a declaration that his dismissal was unlawful, which was dismissed by that court.
Mr Cafaro appealed against the decision of the Tribunale di Roma (District Court, Rome) to the Corte d’appello di Roma (Court of Appeal, Rome, Italy), which, by judgment of 19 February 2016, dismissed the appeal. That court held, in essence, that Mr Cafaro had not been dismissed as his employment relationship had terminated automatically when he reached the age of 60, in accordance with the provisions of the DPCM.
Mr Cafaro brought an appeal on a point of law against that judgment before the referring court.
That court observes that, under national law, the aircraft used by DQ must be deemed to be equivalent to State aircraft and that, by virtue of that categorisation, the employment relationship of pilots employed by DQ is governed by the special provisions of the DPCM, which provide, inter alia, for the automatic termination of their employment relationship once they reach the age of 60.
The referring court notes that Point FCL.065 of Annex I to Regulation No 1178/2011 allows holders of a pilot’s licence to continue to work as pilots of aircraft operated for commercial air transport between the ages of 60 and 64, subject to certain conditions. It observes that that provision prohibits holders of a pilot’s licence from performing their duties in the field of commercial air transport only once they reach the age of 65.
In that context, that court is uncertain whether Point FCL.065 of Annex I to Regulation No 1178/2011 is applicable to the situation of an aircraft pilot employed by a company engaged in activities associated with protecting national security, such as DQ, and, if so, whether that provision must be interpreted as precluding a national provision providing for the automatic termination of the employment relationship of the aircraft pilots employed by DQ once they reach the age of 60.
In the alternative, the referring court asks whether such a national provision is compatible with the principle of non-discrimination on grounds of age set out in Directive 2000/78.
In those circumstances, the Corte suprema di cassazione (Supreme Court of Cassation, Italy) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Is the national legislation set out in the [DPCM], in implementation of the third paragraph of Article 748 of the [Navigation Code], which regulates the limitations on employment for [DQ] aircrew and in particular provides for the automatic termination of the employment relationship once a pilot reaches the age of 60 years, contrary to Regulation No 1178/2011 in so far as that regulation sets 65 years as the age limit for employing pilots in commercial air transport, and would that regulation, if the special national legislation were to be disapplied, be applicable to the present case?
(2)
In the alternative, if Regulation [No 1178/2011] is held not to be applicable
ratione materiae
to the present case, is the aforementioned national legislation contrary to the principle of non-discrimination on the ground of age laid down in Directive 2000/78 and in [Article 21(1) of the Charter of Fundamental Rights of the European Union], to which that directive gives practical expression?’
Consideration of the questions referred
The first question
By its first question, the referring court seeks to ascertain, in essence, whether Point FCL.065 of Annex I to Regulation No 1178/2011 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which the employment relationship of pilots employed by a company operating aircraft used for activities associated with protecting the national security of a Member State terminates automatically once they reach the age of 60.
As a preliminary point, it must be borne in mind that DQ, the Italian Government and the Commission contend that Point FCL.065 of Annex I to Regulation No 1178/2011 does not apply
ratione temporis
to the dispute in the main proceedings.
In that regard, it is apparent from Article 12(1b) of Regulation No 1178/2011 that the Member States may decide not to apply, inter alia, the provisions of Annex I to that regulation until 8 April 2013.
In the present case, it is apparent from the file submitted to the Court that the Italian Republic availed itself of that option. Thus, Point FCL.065 of Annex I to Regulation No 1178/2011 became applicable in the territory of that Member State only from 8 April 2013.
It is apparent from the order for reference that Mr Cafaro’s employment relationship ended on 19 September 2012. Thus, the facts of the dispute in the main proceedings predate the date of application of Point FCL.065 of Annex I to Regulation No 1178/2011 in Italy, so that that provision does not apply
ratione temporis
to that dispute.
In those circumstances, there is no need to answer the first question put by the referring court.
The second question
By its second question, the referring court asks, in essence, whether Directive 2000/78 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which the employment relationship of pilots employed by a company operating aircraft used for activities associated with protecting the national security of a Member State terminates automatically once they reach the age of 60.
Article 2(1) of Directive 2000/78 defines the ‘principle of equal treatment’ as requiring that there be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 of that directive, which include, inter alia, age. Article 2(2)(a) of that directive provides that, for the purposes of paragraph 1, direct discrimination is taken to occur where one person is treated less favourably than another is in a comparable situation, on any of the grounds referred to in Article 1 of the directive.
By providing for the automatic termination of the employment relationship of pilots employed by DQ at the age of 60, the DPCM has the effect that certain persons are treated less favourably than others who perform the same activity for the same employer, solely on the ground that they have reached the age of 60.
It follows that the national legislation at issue in the main proceedings introduces a difference in treatment on grounds of age within the meaning of Article 1, read in conjunction with Article 2(2)(a), of Directive 2000/78.
It must therefore be examined, in the light of the objectives pursued by the national legislation at issue in the main proceedings, whether Directive 2000/78 must be interpreted as precluding such a difference in treatment.
In that regard, it is apparent from the order for reference that the national legislation at issue in the main proceedings seeks to guarantee an adequate level of safety for State flights operated by DQ in the interests of national security. Thus, the aim of that legislation is to (i) guarantee air traffic safety and (ii) protect national security.
Therefore, in order to answer the second question, it is necessary to provide an interpretation of Articles 2(5) and 4(1) of Directive 2000/78.
Interpretation of Article 2(5) of Directive 2000/78
As provided in Article 2(5) of Directive 2000/78, that directive is without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.
In adopting that provision, the EU legislature, in the area of employment and occupation, intended to prevent and adjudicate on a conflict between, on the one hand, the principle of equal treatment and, on the other, the necessity of ensuring public order, security and health, the prevention of criminal offences and the protection of individual rights and freedoms, which are necessary for the functioning of a democratic society. The legislature decided that, in certain cases set out in Article 2(5) of Directive 2000/78, the principles established by the directive do not apply to measures incorporating differences in treatment on one of the grounds referred to in Article 1 of the directive, on condition, however, that those measures are necessary for the attainment of the abovementioned objectives (judgment of 22 January 2019, Cresco Investigation,
C‑193/17
,
EU:C:2019:43
, paragraph
and the case-law cited).
Moreover, as Article 2(5) of Directive 2000/78 establishes an exception to the principle prohibiting discrimination, it must be interpreted strictly. The terms used in that provision also suggest such an approach (judgment of 22 January 2019, Cresco Investigation,
C‑193/17
,
EU:C:2019:43
, paragraph
and the case-law cited).
In the present case, it must be noted, in the first place, that the national legislation at issue in the main proceedings constitutes a measure laid down by national law within the meaning of Article 2(5) of Directive 2000/78.
It is apparent from the Court’s case-law that the concept of ‘measures laid down by national law’ within the meaning of that provision is not limited solely to measures resulting from an act adopted following a legislative procedure, but also includes measures introduced on the basis of a sufficiently precise rule to that effect (see, to that effect, judgment of 13 September 2011, Prigge and Others,
C‑447/09
,
EU:C:2011:573
, paragraphs
and
).
In that regard, it is apparent from the order for reference that the difference in treatment was introduced by the DPCM, whose provisions derogate from the Navigation Code and the ordinary rules governing employment relationships. They were adopted on the basis of the third paragraph of Article 748 of the Navigation Code, which empowers the competent national authorities to adopt rules to guarantee an adequate level of safety. In those circumstances, the difference in treatment introduced by the DPCM must indeed be regarded as resulting from a measure laid down by national law, within the meaning of Article 2(5) of Directive 2000/78.
In the second place, the national legislation at issue in the main proceedings pursues objectives related to public security within the meaning of Article 2(5) of Directive 2000/78.
In that regard, first, the Court has previously held that air traffic security is included in the objectives set out in Article 2(5) of Directive 2000/78. It is apparent that measures that aim to avoid aeronautical accidents by monitoring pilots’ aptitude and physical capabilities with the objective of ensuring that human failure does not cause accidents are undeniably measures of a nature to ensure public security for the purpose of that provision (judgment of 13 September 2011, Prigge and Others,
C‑447/09
,
EU:C:2011:573
, paragraph
).
Second, with regard to the objective of protecting national security, measures intended to ensure smooth operations in the interests of national security are also measures of a nature to ensure public security for the purpose of Article 2(5) of Directive 2000/78.
In the third and last place, it must be ascertained whether the national legislation at issue in the main proceedings is necessary for public security within the meaning of Article 2(5) of Directive 2000/78.
In that regard, it must be borne in mind that, in paragraph 64 of the judgment of 13 September 2011, Prigge and Others (
C‑447/09
,
EU:C:2011:573
), the Court held that a national measure which fixes the age-limit from which pilots may no longer carry out their professional activities at 60, whereas national and international legislation fixes that age at 65, is not a measure necessary for public security and for the protection of health within the meaning of Article 2(5) of Directive 2000/78.
In accordance with national and international legislation governing the commercial air transport of passengers, mail and/or cargo, applicable in the case giving rise to that judgment, it was not necessary to prohibit aircraft pilots from working as pilots after age 60 but merely to restrict those activities. Therefore, the prohibition on working as a pilot after that age, contained in the measure at issue in that case, was not necessary for the achievement of the objective pursued.
In the field of commercial air transport, which was also at issue in the case giving rise to that judgment, the EU legislature intended, as is apparent from Point FCL.065 of Annex I to Regulation No 1178/2011, to prohibit holders of licences who are aged over 65 from exercising the profession of airline pilot.
However, in the present case, first, it is apparent from the file submitted to the Court that the purpose of the flights operated by DQ is to carry out operations associated with protecting national security which generally present greater risks than those associated with commercial air transport. Unlike aircraft pilots, DQ’s pilots are usually required to carry out their activities in difficult or even extreme conditions, so that the performance of those activities places particularly high physical demands on them.
Second, as it stands, EU and international law do not provide for any specific rules imposing an age limit from which pilots of aircraft used for activities associated with protecting the national security of a Member State may no longer exercise their professional activity.
Therefore, there is no reason to consider, in general, that the age limit for piloting flights such as those operated by DQ should, as a matter of principle, correspond to the age of 65 years imposed in the field of commercial air transport.
In those circumstances, it is for the referring court to determine, in the light of all the circumstances of the dispute in the main proceedings and bearing in mind the specific nature of the activities pursued by DQ and the physical demands placed on pilots employed by that company, whether the national legislation at issue in the main proceedings is necessary for public security within the meaning of Article 2(5) of Directive 2000/78.
In the light of all the foregoing considerations, Article 2(5) of Directive 2000/78 must be interpreted as not precluding national legislation such as that at issue in the main proceedings, under which the employment relationship of pilots employed by a company operating aircraft used for activities associated with protecting the national security of a Member State terminates automatically once they reach the age of 60, provided that such legislation is necessary for public security within the meaning of that provision, which is a matter for the referring court to determine.
Interpretation of Article 4(1) of Directive 2000/78
Under Article 4(1) of Directive 2000/78, ‘Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 [of that directive] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate’.
It is apparent from the wording of that provision that, in order not to constitute discrimination, the difference in treatment must be based on a characteristic related to one of the grounds referred to in Article 1 of Directive 2000/78 and that characteristic must constitute a ‘genuine and determining’ occupational requirement. The Court has held that it is not the ground on which the difference in treatment is based but a characteristic related to that ground which must constitute a genuine and determining occupational requirement (judgment of 13 September 2011, Prigge and Others,
C‑447/09
,
EU:C:2011:573
, paragraph
).
In that regard, the Court has previously held that it is essential that aircraft pilots possess, inter alia, particular physical capabilities as physical defects in that profession may have significant consequences. It is also undeniable that those capabilities diminish with age. It follows that possessing particular physical capabilities may be considered to be a ‘genuine and determining occupational requirement’, within the meaning of Article 4(1) of the directive, for employment as an airline pilot and that the possession of such capabilities is related to age (judgment of 13 September 2011, Prigge and Others,
C‑447/09
,
EU:C:2011:573
, paragraph
).
As the Advocate General observed in point 94 of his Opinion, such an interpretation also applies to the pilots of aircraft engaged in tasks associated with protecting national security, such as the pilots employed by DQ. As stated in paragraph 53 above, DQ’s pilots are usually required to carry out their activities in difficult or even extreme conditions, so that the performance of those activities places particularly high physical demands on them.
It follows that possessing particular physical capabilities may be considered to be a ‘genuine and determining occupational requirement’, within the meaning of Article 4(1) of Directive 2000/78 for employment as a pilot of an aircraft used for activities associated with protecting national security.
As regards the objectives pursued by the national legislation at issue in the main proceedings, it has been noted in paragraph 38 above that the aim of that legislation is to (i) guarantee air traffic safety and (ii) protect national security.
The Court has previously held that the objective of guaranteeing air traffic safety constitutes a legitimate objective within the meaning of Article 4(1) of Directive 2000/78 (judgment of 13 September 2011, Prigge and Others,
C‑447/09
,
EU:C:2011:573
, paragraph
). The objective of guaranteeing the protection of national security must also be considered to be a legitimate objective within the meaning of that provision.
However, it must be determined whether, by providing for the automatic termination of the employment relationship of pilots employed by DQ at the age of 60, the national legislation at issue in the main proceedings imposed a proportionate requirement.
In that regard, it should be borne in mind that recital 23 of Directive 2000/78 states that it is only in ‘very limited circumstances’ that a difference of treatment may be justified where a characteristic related, inter alia, to age constitutes a genuine and determining occupational requirement (judgment of 13 September 2011, Prigge and Others,
C‑447/09
,
EU:C:2011:573
, paragraph
).
Moreover, in so far as it allows a derogation from the principle of non-discrimination, Article 4(1) of Directive 2000/78 must be interpreted strictly (judgment of 13 September 2011, Prigge and Others,
C‑447/09
,
EU:C:2011:573
, paragraph
).
In paragraph 75 of the judgment of 13 September 2011, Prigge and Others (
C‑447/09
,
EU:C:2011:573
), the Court held that in fixing at 60 years the age limit from which airline pilots are regarded as no longer possessing the physical capabilities to carry out their occupational activity, while national and international legislation authorise the carrying out of that activity, under certain conditions, until the age of 65, the social partners imposed on those pilots a disproportionate requirement contrary to Article 4(1) of Directive 2000/78.
However, for the reasons set out in paragraphs 53 to 55 above, such a solution, applicable to commercial air transport, cannot be applied to this case.
In those circumstances, it is for the referring court to determine, in the light of all the circumstances of the dispute in the main proceedings whether, bearing in mind the specific nature of the activities pursued by DQ and the physical demands placed on pilots employed by that company, the national legislation at issue in the main proceedings may be considered to be proportionate within the meaning of Article 4(1) of Directive 2000/78.
Consequently, Article 4(1) of Directive 2000/78 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, under which the employment relationship of pilots employed by a company operating aircraft used for activities associated with protecting the national security of a Member State terminates automatically once they reach the age of 60, provided that such legislation is proportionate within the meaning of that provision, which is a matter for the referring court to determine.
In the light of all of the foregoing considerations, the answer to the second question is that:
–
Article 2(5) of Directive 2000/78 must be interpreted as not precluding national legislation such as that at issue in the main proceedings, under which the employment relationship of pilots employed by a company operating aircraft used for activities associated with protecting the national security of a Member State terminates automatically once they reach the age of 60, provided that such legislation is necessary for public security within the meaning of that provision, which is a matter for the referring court to determine.
–
Article 4(1) of Directive 2000/78 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, under which the employment relationship of pilots employed by a company operating aircraft used for activities associated with protecting the national security of a Member State terminates automatically once they reach the age of 60, provided that such legislation is proportionate within the meaning of that provision, which is a matter for the referring court to determine.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

1.
Article 2(5) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding national legislation such as that at issue in the main proceedings, under which the employment relationship of pilots employed by a company operating aircraft used for activities associated with protecting the national security of a Member State terminates automatically once they reach the age of 60, provided that such legislation is necessary for public security within the meaning of that provision, which is a matter for the referring court to determine.
2.
Article 4(1) of Directive 2000/78 must be interpreted as not precluding national legislation such as that at issue in the main proceedings, under which the employment relationship of pilots employed by a company operating aircraft used for activities associated with protecting the national security of a Member State terminates automatically once they reach the age of 60, provided that such legislation is proportionate within the meaning of that provision, which is a matter for the referring court to determine.

[Signatures]
(
*1
)	Language of the case: Italian.