WRITTEN QUESTION E-0198/02

by Bernd Lange (PSE) to the Commission

(6 February 2002)

Subject: Age limit for dentists

The Gesundheitsstrukturgesetz, (German health law) stipulates an age limit for practising as a dentist.

A question was put to me regarding the extent to which this restriction is consistent with Article 12 of the EC Treaty (ex-Article 6: prohibition of discrimination), Article 40 and Article 44 (freedom of movement for workers, freedom of establishment), in the event of a dental practitioner having already exceeded the age limit allowed by the German law.

Does it constitute a breach of the aforementioned Articles of the EC Treaty if a dentist is no longer authorised to work because of his age? Is the Commission aware of this problem? Have there already been similar cases where complaints have been made? Where the complaints proved legitimate, has the Commission already taken steps to remedy the situation and what action does it plan to take?

Answer given by Mr Bolkestein on behalf of the Commission

(21 March 2002)

Article 12 of the EC Treaty prohibits any discrimination on grounds of nationality, i.e. between nationals of the Member States. The same principle is repeated in the treaty provisions concerning the free movement of workers, Article 39 of the EC Treaty. The information provided in the written question does not indicate any discrimination on grounds of nationality.

The Right of Establishment and the Right to provide Services Articles 43 and 49 of the EC Treaty are, where no harmonisation measures have been taken by the Union, subject to national rules in the Member States. In order to be compatible with the Treaty restrictions to these rights must be justified.

According to the jurisprudence on the right of establishment of the Court of Justice, restrictions which hinder or make less attractive the exercise of fundamental freedoms guaranteed by the EC Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it.

In the light of the information provided by the Honourable Member, the German law or its application does not appear to be disproportionate or otherwise be incompatible with the above listed requirements. To the knowledge the Commission, complaints concerning age limits to practice the dental profession have not been received before.

At this stage the Commission does not intend to take further action on the matter due to the reported German regulation.

As to the wider context of age discrimination, Article 13 of the EC Treaty foresees that the appropriate legislative action may be taken to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Council Directive 2000/78/EC of 27 November 2000 provides that discrimination based on, inter alia, age is prohibited in employment and occupation. Member States must introduce the national measures to give effect to this directive by 2 December 2003 though they may, if necessary to take account of particular conditions, have an additional period of three years from that date to implement the provisions on age and disability discrimination. Moreover, Member States may provide that differences of treatment on grounds of age shall not constitute discrimination if, within the context of national law, they are reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

The Commission is therefore unable to intervene in this case to ensure the application of the principle of equal treatment in relation to age in advance of the date of transposition of the Directive.