Werner Fries v Lufthansa CityLine GmbH.
Date: 2017-07-05
29


The principle of equal treatment is a general principle of EU law, enshrined in Article 20 of the Charter, of which the principle of non-discrimination laid down in Article 21(1) of the Charter is a particular expression.
30


The Court has consistently held that the principle of equal treatment requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified (judgment of 1 March 2011, Association belge des Consommateurs Test-Achats and Others, C‑236/09, EU:C:2011:100, paragraph 28 and case-law cited).
38


Furthermore, as the Advocate General observed in point 33 of his Opinion, that limitation respects the essential contents of the principle of non-discrimination. That limitation does not call into question the principle as such, as it concerns only the question, limited in scope, of restrictions on performing pilot duties in order to ensure the safety of aviation (see, by analogy, judgment of 29 April 2015, Léger, C‑528/13, EU:C:2015:288, paragraph 54).
42


However, it should be recalled that, as regards aviation safety, when interpreting Article 2(5) and Article 4(1) of 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 Court has held that the objective of guaranteeing air traffic safety constitutes a legitimate objective within the meaning of those provisions (see, to that effect, judgment of 13 September 2011, Prigge and Others, C‑447/09, EU:C:2011:573, paragraphs 58 and 69).
45


Concerning, first of all, the appropriateness of such a provision in the light of the aim pursued, it is clear from the case-law of the Court that, as regards air traffic safety, measures that aim to avoid aeronautical accidents by monitoring pilots’ aptitude and physical capabilities with the aim of ensuring that human failure does not cause accidents are undeniably measures of a nature to ensure air traffic safety (see, by analogy, judgment of 13 September 2011, Prigge and Others, C‑447/09, EU:C:2011:573, paragraph 58).
46


Furthermore, it should be noted that, after stating that it is essential that airline pilots possess sufficient physical capabilities, in so far as physical defects may have significant consequences for that profession, the Court held that it is undeniable that those capabilities diminish with age (see, to that effect, judgment of 13 September 2011, Prigge and Others, C‑447/09, EU:C:2011:573, paragraph 67).
48


Nevertheless, it must be observed, in accordance with settled case-law, that legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner, and that exceptions to the provisions of a law can, in certain cases, undermine the consistency of that law, in particular where their scope is such that they lead to a result contrary to the objective pursued by that law (judgment of 21 July 2011, Fuchs and Köhler, C‑159/10 and C‑160/10, EU:C:2011:508, paragraphs 85 and 86).
53


Next, as regards the issue of whether such a measure goes beyond what is necessary for achieving its objective and unduly prejudices the interests of holders of a pilot’s licence aged over 65, that measure must be viewed against its legislative background and account must be taken both of the hardship that it may cause to the persons concerned and of the benefits derived from it by society in general and by the individuals who make up society (see, by analogy, judgment of 5 July 2012, Hörnfeldt, C‑141/11, EU:C:2012:421, paragraph 38 and the case-law cited).
59


First of all, it must be recalled that the EU legislature enjoys broad discretion as to complex medical questions, such as that of whether the particular physical capabilities necessary to act as an airline pilot are not found in persons over a certain age, and that, where there is uncertainty as to the existence or extent of risks to the health of individuals, the EU legislature may take protective measures without having to wait until the reality and the seriousness of those risks become fully apparent (see, by analogy, judgment of 22 May 2014, Glatzel, C‑356/12, EU:C:2014:350, paragraphs 64 and 65).
61


In that regard, first of all, it should be noted that the age limit of 65 may be regarded as sufficiently high to serve as the endpoint for authorisation to practise as a pilot in the field of commercial air transport (see, by analogy, judgment of 12 January 2010, Petersen, C‑341/08, EU:C:2010:4, paragraph 52).
66


In addition, it must be stressed that that age limit does not have the automatic effect of forcing the persons concerned to withdraw definitively from the labour market, as that limit does not establish a mandatory scheme of automatic retirement and does not necessarily entail the termination of the employment contract of an employee on the ground that he has reached the age of 65 (see, by analogy, judgment of 5 July 2012, Hörnfeldt, C‑141/11, EU:C:2012:421, paragraph 40).
73


As regards, in particular, the freedom to choose an occupation and the freedom to conduct a business, it must be borne in mind that, according to the case-law of the Court, the freedom to pursue a trade or profession, like the right to property, is not an absolute right but must be considered in relation to its social function. Consequently, restrictions may be imposed on the exercise of those freedoms, provided that those restrictions in fact correspond to objectives of general interest pursued by the European Union and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights (judgment of 6 September 2012, Deutsches Weintor, C‑544/10, EU:C:2012:526, paragraph 54 and the case-law cited).