Opinion of the Advocate General — ECLI:EU:C:2011:321
Date: 2011-05-19
Language of the case: German
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Anti-discrimination
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary 94. A national provision such as that at issue in the present case, in so far as it allows the employment relationships of airline pilots to be automatically terminated upon reaching the age of 60 and to the extent that it is established by a collective agreement, is not in the nature of a measure laid down by national law which, in a democratic society, is necessary for public security or for the protection of health, within the meaning of Article 2(5) of Directive 2000/78. 95. Nor is it possible, in the circumstances of the case, to find a legal basis for the automatic termination of the employment relationship of pilots upon reaching the age of 60 in Article 4(1) of Directive 2000/78, particularly as the conditions imposed on continuing in the profession beyond that age cannot be given a meaning which goes beyond what they actually say. On the contrary, restricting the pursuit of the profession of pilot to persons who have not yet reached the age of 65 should, as the international rules now stand, be regarded as an expression and a consequence of a genuine and determining occupational requirement within the meaning of that provision. 96. That being so, in the case of a profession such as that of a commercial pilot, where there is a requirement taking the form of an age-limit which expresses a genuine and determining occupational requirement, Directive 2000/78, and, specifically, Article 6(1), does not preclude a collective agreement which, in the interests of the social policy objective of preserving scope for collective bargaining, requires the automatic termination of the employment relationship on the worker reaching a lower age than that set by way of genuine and determining occupational requirement, as long as the principle of proportionality is respected. It is necessary in such cases that the worker should, at that time, have acquired an entitlement to a retirement pension or, alternatively, should be entitled to satisfactory transitional compensation for the period up until such entitlement to a pension takes effect. It is for the national court to determine whether the clause in the collective agreement in question is proportionate to that objective, both in relation to the amount of time by which the termination of the employment relationship is brought forward and, where applicable, to the amount of the transitional compensation. 97. In any event, and particularly in view of the fact that there is a limit on the length of a working life in the profession, Directive 2000/78 precludes as contrary to the principle of proportionality a provision such as that which is the subject of these proceedings which allows the termination of the employment relationship to be brought forward by five years as compared to the age set by way of a genuine and determining occupational requirement for airline pilots. VIII – Conclusion 98. In conclusion, I propose that the Court of Justice give the following reply to the question referred by the Bundesarbeitsgericht: Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation and, in particular, Article 2(5), Article 4(1) and Article 6(1) thereof, construed in the light of Article 21 of the Charter of Fundamental Rights of the European Union, precludes a provision in a collective agreement stipulating that the employment relationship of commercial airline pilots is automatically terminated upon reaching the age of 60. 1 – Original language: Spanish. 2 – OJ 2000 L 303, p. 16. 3 – Suffice it to say that this case-law, starting with Case C‑144/04 Mangold [2005] ECR I‑9981 and restated in a substantial number of subsequent cases, has significantly reinforced this type of prohibition on discrimination, whilst emphasising its specific nature. For studies of discrimination on grounds of age in this area there is an extensive bibliography including: Sprenger, M., Das arbeitsrechtliche Verbot der Alterdiskriminierung nach der Richtlinie 2000/78/EG, Hartung-Gorre Verlag, Konstanz, 2006; Temming, F., Alterdiskriminierung im Arbeitsleben, Verlag C. H. Beck, Munich, 2008; ten Bokum, N., Flanagan, T., Sands, R. and von Steinau-Steinruck, R (Eds.), Age Discrimination Law in Europe, Wolters Kluwer, 2009; Sargeant, M. (Ed.), The Law on Age Discrimination in the EU, Kluwer Law International, 2008; Schiek, D., Waddington, L. and Bell, M. (Eds.), Non discrimination Law, Hart Publishing, 2007. See also Nogueira Gustavino, M., ‘Extinción del contrato de trabajo y discriminación por razón de edad’ in Tratado de jubilación. Homenaje al Profesor Luis Enrique de la Villa Gil con motivo de su jubilación, López Cumbre (Ed.), Iustel, 2007. 4 – The term ‘retirement age’ is used hereafter to refer to the age at which a worker normally stops working and is entitled to start receiving a pension. For cases concerning those approaching retirement, see Case C‑411/05 Palacios de la Villa [2007] ECR I‑8531; Case C‑388/07 Age Concern England [2009] ECR I‑1569, ‘Age Concern’; Case C‑341/08 Petersen [2010] ECR I‑47; Case C‑45/09 Rosenbladt [2010] ECR I‑9391; and Joined Cases C‑250/09 and C‑268/09 Georgiev [2010] ECR I‑11869. 5 – Commercial airline pilots, to be precise, although for the sake of brevity I shall refer to ‘pilots’. 6 – An organ of the European Civil Aviation Conference representing the civil aviation regulatory authorities of a number of European States, including Germany. 7 – BGBl. 2000 I, p. 1966. 8 – BGB1. 2006 I, p. 1897. 9 – BGBl. 2008 I, p. 1229. 10 – Bundesanzeiger No 82b of 3 May 2003. 11 – According to the information made available at the hearing, the employer would pay this compensatory allowance only until the employee reaches the age of 63, at which point pilots would be entitled to the relevant retirement pension. 12 – Case C‑555/07 Seda Kücükdeveci [2010] ECR I‑365. 13 – Mangold, paragraph 74; and Kücükdeveci, paragraph 21. 14 – Paragraph 22 of the Kücükdeveci judgment already contains a brief reference to Article 21 of the Charter. 15 – Case C‑13/94 P. v S. [1996] ECR I‑2143; Case C‑13/05 Chacón Navas [2007] ECR I‑6467; and Kücükdeveci, paragraph 27. Furthermore, the applicability of the directive in this case is not at issue. The termination of the employment relationships of the three individuals in the present case occurred in November 2006 and in June and April 2007, after the entry into force of the national law transposing the directive (which occurred on 18 August 2006), so that the issue was already governed by EU law, irrespective of the fact that the time-limit for transposition did not expire until December 2006. On this point, see Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 15; and, a contrario, Case C‑427/06 Bartsch [2008] ECR I‑7245, paragraph 24; and Case C‑147/08 Römer [2011] ECR I‑3591, paragraph 63. 16 – See Stern, K., ‘Die Idee der Menschen- und Grundrechte’, Handbuch der Grundrechte in Deutschland und Europa, Band I, Entwicklung und Grundlagen, C.F. Müller Verlag, Heidelberg, 2004, p. 3. 17 – See point 85 of the Opinion of Advocate General Jacobs in Case C‑227/04 P Lindorfer v Council [2007] ECR I‑6767. 18 – See Papier, H.-J., ‘Drittwirkung der Grundrechte’, Handbuch der Grundrechte in Deutschland und Europa, Band II, Grundrechte in Deutschland, Allgemeine Lehren I, C.F. Müller Verlag, Heidelberg, 2006, p. 1331. 19 – Worthy of mention are Articles 13 and 141 EC and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39 p. 40). 20 – Discrimination based on race is governed, generally, by Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180 p. 22). 21 – Furthermore, Article 4(1) has its equivalent in Directives 76/207 and 2000/43, concerning discrimination on grounds of sex and ethnic origin, respectively. 22 – See, as regards Article 28 of the Charter, Rixen, S., ‘Artikel 28 GRCh (Artikel II 88 VVE) Recht auf Kollektivverhandlungen und Kollektivmaßnahmen’, Europäische Grundrechte-Charta, Verlag C.H. Beck, Munich, 2006, p. 540. 23 – Sciarra, S., La evolución de la negociación colectiva. Apuntes para un estudio comparado en los países de la Unión europea, Revista de derecho Social No 38 (2007), p. 196. 24 – In this regard, see Wedderburn, ‘Inderogability, Collective Agreements and Community Law’, The Industrial Law Journal, Oxford University Press, 1992; and Valdés Dal-Ré, ‘Negociación colectiva y sistemas de relaciones laborales: modelos teóricos y objetos y métodos de investigación’, Relaciones Laborales, No 21, 1 to 15 Nov. 2000, p. 83. 25 – In addition to this, there is that fact that, as Advocate General Jacobs emphasised in point 181 of his Opinion in the Albany, Brentjen’s and Drijvende Bokken cases, ‘it is widely accepted that collective agreements between management and labour prevent costly labour conflicts, reduce transaction costs through a collective and rule-based negotiation process and promote predictability and transparency. A measure of equilibrium between the bargaining power on both sides helps to ensure a balanced outcome for both sides and for society as a whole’ (see Case C-67/96 Albany [1999] ECR I-5751; Joined Cases C-115/97 to C-117/97 Brentjen’s [1999] ECR I-6025; and Case C-219/97 Drijvende Bokken [1999] ECR I-6121). 26 – Case 143/83 Commission v Denmark [1985] ECR 427, paragraph 8, and Case 235/84 Commission v Italy [1986] ECR 2291, paragraph 20. To a certain extent, these decisions prioritise giving effect to a directive over promoting collective bargaining (on this point, see Davies, P., ‘The European Court of Justice, National Courts, and the Member States’, European Community Labour Law. Principles And Perspectives. Liber Amicorum Lord Wedderburn, Clarendon Press, Oxford, 1996, p. 121), but they also imply a clear recognition of the status of collective agreements within the Community legal framework. 27 – Article 28 of the Charter. 28 – See also Brentjens; Drijvende Bokken; and Case C‑222/98 Van der Woude [1999] ECR I‑7111. See also Case C‑271/08 Commission v Germany [2010] ECR I‑7091, paragraph 45. 29 – Case C‑15/96 Schöning-Kougebetopoulou [1998] ECR I‑47; Case C‑35/97 Commission v France [1998] ECR I‑5325; Case C‑400/02 Merida [2004] ECR I‑8471; Case C‑438/05 International Transport Workers’ Federation and Finnish Seamen’s Union [2007] ECR I‑10779, ‘Viking Line’, paragraph 54; Case C-341/05 Laval un Partneri [2007] ECR I-11767, paragraph 98; and Commission v Germany, paragraphs 42 to 47. The judgments in Viking Line, paragraph 44, and Laval, paragraph 91, expressly state that although the right to take collective action, which is also recognised by Article 28 of the Charter, must be ‘recognised as a fundamental right which forms an integral part of the general principles of Community law the observance of which the Court ensures, the exercise of that right may none the less be subject to certain restrictions’. 30 – Case 43/75 Defrenne [1976] ECR 455, paragraph 39; Case C‑33/89 Kowalska [1990] ECR I‑2591, paragraph 12; Case C‑184/89 Nimz [1991] ECR I‑297, paragraph 11; Case C‑333/97 Lewen [1999] ECR I‑7243, paragraph 26; Case C‑284/02 Sass [2004] ECR I‑11143, paragraph 25; and Case C‑19/02 Hlozek [2004] ECR I‑11491, paragraph 43. See also Case 165/82 Commission v United Kingdom [1983] ECR 3431, paragraph 11. 31 – Thus, in the Petersen case, the measure in question (an upper age limit for panel dentists) had been implemented by means of legislation having the rank of a law (see paragraph 11 of the judgment). From that point of view, and in so far as its purpose was stated to be the protection of health, the difference in treatment created would have fallen within Article 2(5). It did not, however, fall within that provision in so far as there was a lack of consistency because it did not apply to dentists who were not panel dentists. 32 – The judgment in Laval un Partneri concerned the relationship between collective agreements and public policy measures, albeit in a very different context, indicating that management and labour, ‘not being bodies governed by public law’, cannot, in the context of collective bargaining, avail themselves of Article 3(10) of Directive 96/71/EC of the European Parliament and of the Council concerning the posting of workers in the framework of the provision of services ‘by citing grounds of public policy in order to maintain that collective action such as that at issue in the main proceedings complies with Community law’ (paragraph 84). Along similar lines is the judgment in Case C‑319/06 Commission v Luxembourg [2008] ECR I‑4323. 33 – In this regard it should be recalled that the judgment in Petersen attributed importance to the consistency of the measure in the context of Article 2(5) of the directive (paragraphs 61 and 62 of the judgment). 34 – Case C‑229/08 Wolf [2010] ECR I‑1, paragraph 35. 35 – On this point, one might cite, by analogy, Case 222/84 Johnston [1986] ECR 1651, paragraph 36, and Case C‑273/97 Sirdar [1999] ECR I‑7403, paragraph 23, which demand a strict interpretation of the former Article 2(2) of Directive 76/207 (in its orginal form), which is a provision similar to the one under consideration here, although applicable only in the area of discrimination on grounds of sex (following amendment by Directive 2002/73 of the European Parliament and of the Council of 23 September 2002, the provision became Article 2(6) of Directive 76/207, which is closer to the wording of Article 4(1) of Directive 2000/78). 36 – Paragraph 38. 37 – The case-law on Article 2(2) of Directive 76/207 also mainly concerns public security. Thus, having denied ‘that there is inherent in the Treaty a general exception excluding from the scope of Community law all measures taken for reasons of public security’ (and, in particular, that ‘the principle of equal treatment for men and women is … subject to any general reservation as regards measures for the organisation of the armed forces taken on grounds of the protection of public security’), the Court held that the exclusion of women from performing certain activities such as policing in the context of serious internal disturbances (Johnston, paragraphs 36 and 37), the work of prison warders (Case 318/86 Commission v France [1988] ECR 3559, paragraphs 11 to 18), or service in combat units such as the Royal Marines (Sirdar, paragraphs 29 to 31) could be justified under Article 2(2) of Directive 76/207. On the other hand, a provision barring women from all military posts involving the use of arms cannot be justified (Case C‑285/98 Kreil [2000] ECR I‑69, paragraphs 25 to 29). 38 – The Bundesarbeitsgericht itself, for example, in its judgment of 20 February 2002, mentioned the case of military pilots, for whom a legal age-limit of 41 was set, as an indication that the legislature considered that certain physical and mental abilities started to decline from that age (BAG v 20.02.2002 AP Nr. 18 BGB § 620 Altersgrenze, § 611 Luftfahrt). In many other cases decided by the Bundesarbeitsgericht in the past, that court worked on the basis of ‘empirical medical evidence identifying aircraft cockpit staff as being subject to above-average levels of psychological and physical stress, as a result of which there is an increase in the risk of age-related deficiencies and unforeseen mistaken reactions’. 39 – ‘Notamment’, in the French version; ‘incluidos’ in the Spanish version, ‘compresi’, in the Italian version; ‘erityisesti’, in the Finnish version; ‘insbesondere’, in the German version, all of which bear the same meaning. 40 – Advocate General Sharpston made statements to this effect at point 110 of her Opinion in Bartsch. 41 – Paragraph 46. In the same vein, see the judgment in Case C‑88/08 Hütter [2009] ECR I‑5325, paragraph 41, and the Opinions of Advocate General Bot in Kücükdeveci (paragraph 37) and in Petersen (paragraph 55). Further and more indirect support for this view can be found in recital 25 in the preamble to the directive and in the judgments in Mangold (paragraph 63); Palacios de la Villa (paragraph 68); and Petersen (paragraphs 48 to 50). 42 – See Palacios de la Villa, paragraph 68, and Case C‑45/09 Rosenbladt [2010] ECR I‑9391, paragraph 41. 43 – See recital 36 in the preamble to the directive, which expressly refers to this possibility ‘as regards the provisions concerning collective agreements’. 44 – Petersen, paragraph 42. 45 – An option that was expressly mentioned at the hearing. 46 – Rosenbladt, paragraphs 43 and 48. 47 – Thus, paragraph 67 of the judgment in Rosenbladt, states that ‘the fact that the task of striking a balance between their respective interests is entrusted to the social partners offers considerable flexibility, as each of the parties may, where appropriate, opt not to adopt the agreement’. 48 – In connection with prohibited differential treatment in general, the Court has considered what importance should be accorded to the fact that the discrimination arises in a collective bargaining context. Particularly noteworthy is Case C‑400/93 Royal Copenhagen [1995] ECR I‑1275, where it was held that, although the principle of equal pay for men and women also applies where pay is set by a collective agreement, the national court may take this factor into account ‘in its assessment of whether differences between the average pay of two groups of workers are due to objective factors unrelated to any discrimination on grounds of sex’ (paragraphs 45 and 46). 49 – Regarding its categorisation as ‘social policy’, it should be recalled that Article 151 TFEU, which is the opening article of Title X of the Treaty and which concerns precisely that topic of ‘social policy’, lists as one of the objectives of the policy ‘dialogue between management and labour’, and Article 155 TFEU, falling under the same title, also refers to dialogue between management and labour at Union level. 50 – The generally applicable rule in Germany is that a pilot over 60 and under 65 can fly a commercial transport aircraft, within the Federal Republic of Germany only, and retire upon reaching the age of 65 (Paragraph 4 of the Durchführungsverordnung zur Verordnung über Luftfahrtpersonal). 51 – Case C‑127/92 [1993] ECR I‑5535. As stated in paragraph 22, ‘if the employer could rely on the absence of discrimination within each of the collective bargaining processes taken separately as sufficient justification for the difference in pay, he could … easily circumvent the principle of equal pay by using separate bargaining processes’. 52 – According to the information made available at the hearing.