Reinhard Prigge and Others v Deutsche Lufthansa AG.
Date: 2011-09-13
38. In relation to the application of the Directive, it should be noted that the Court has acknowledged the existence of a principle of non-discrimination on grounds of age which must be regarded as a general principle of EU law and which has been given specific expression in the Directive in the domain of employment and occupation (see, to that effect, Case C‑555/07 Kücükdeveci [2010] ECR I‑0000, paragraph 21). The prohibition of all discrimination on grounds, inter alia, of age is incorporated in Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which, from 1 December 2009, has the same legal status as the treaties.
39. Moreover, it is apparent from both its title, preamble, content and purpose that the Directive seeks to lay down a general framework in order to guarantee equal treatment ‘in employment and occupation’ to all persons, by offering them effective protection against discrimination on one of the grounds covered by Article 1, which include age (see Case C‑499/08 Ingeniørforeningen i Danmark [2010] ECR I‑0000, paragraph 19).
41. In providing that the pilots’ employment relationship terminates, without need for notice to terminate the employment contract, at the end of the month in which their sixtieth birthdays fall, Article 19(1) of Collective Agreement No 5a concerns the employment conditions of those workers, within the meaning of Article 3(1)(c) of the Directive. The Directive therefore applies to situations such as those that gave rise to the dispute before the national court.
42. As regards the issue whether the measure in question in the main proceedings contains a difference of treatment on grounds of age for the purposes of Article 2(1) of the Directive, it should be recalled that under that provision, ‘the “principle of equal treatment” means that there is to be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1’ of the Directive. Article 2(2)(a) of the Directive states that, for the purposes of Article 2(1), direct discrimination is to be taken to occur where one person is treated less favourably than another person in a comparable situation, on any of the grounds referred to in Article 1 of the Directive.
44. Such a pilot is in a comparable situation to that of a younger pilot performing the same activity for the benefit of the same airline company and/or falling under the same collective agreement. The first pilot whose employment contract terminates automatically when he attains 60 years of age is treated in a less favourable manner, on grounds of his age, than the second.
46. It should be noted that the fact that the national legislation, in this case, according to the national court, Article 14(1) of the TzBfG, may authorise, for an objective reason, a collective agreement to provide for the automatic termination of employment contracts at a specified age does not dispense with the requirement that the collective agreement at issue must be in accordance with EU law and, more particularly, the Directive (see, to that effect, Case C‑45/09 Rosenbladt [2010] ECR I‑0000, paragraph 53).
47. The right to collective negotiation set out at Article 28 of the Charter must, within the scope of EU law, be performed in accordance with EU law (see, to that effect, Case C‑438/05 International Transport Workers’ Federation and Finnish Seamen’s Union, ‘Viking Line’ [2007] ECR I‑10779, paragraph 44, and Case C‑341/05 Laval un Partneri [2007] ECR I‑11767, paragraph 91).
48. Therefore, where they adopt measures which fall within the scope of the Directive, which gives specific expression, in the domain of employment and occupation, to the principle of non-discrimination on grounds of age, the social partners must respect the Directive (see, to that effect, Case C‑127/92 Enderby [1993] ECR I‑5535, paragraph 22).
55. In adopting that provision, the EU legislature, in the area of employment and occupation, intended to prevent and arbitrate a conflict between, on the one hand, the principle of equal treatment and, on the other hand, 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 the Directive, the principles set out by that latter do not apply to measures containing 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 achievement of the abovementioned objectives.
56. Moreover, as Article 2(5) establishes an exception to the principle of the prohibition of discrimination, it must be interpreted strictly. The terms used in Article 2(5) also suggest such an approach (see, to that effect, Case C‑341/09 Petersen [2010] ECR I‑0000, paragraph 60).
58. As regards air traffic safety, it is apparent that 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 public security within the meaning of Article 2(5) of the Directive.
59. In relation to the issue of whether a measure adopted by way of collective agreement can be a measure provided for by national law, it must be noted, as did the Advocate General at paragraph 51 of his Opinion, that the EU legislature, at Article 2(5) of the Directive, referred to measures falling within ‘national law’, and that neither Article 4(1) nor 6(1) of the Directive refer to any specific legal instrument.
60. The Court has already held that the social partners are not bodies governed by public law (see, in the context of Article 3(10) of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1), Laval un Partneri , paragraph 84).
61. That ruling does not however prevent Member States from authorising, through rules to that effect, social partners from adopting measures, within the meaning of Article 2(5) of the Directive, in the domains referred to in that provision that fall within collective agreements. Those security clearance rules must be sufficiently precise so as to ensure that they fulfil the requirements set out in the said Article 2(5).
66. 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 the Directive 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 (see Case C‑229/08 Wolf [2010] ECR I‑0000, paragraph 35).
67. As regards airline pilots, it is essential that they possess, inter alia, particular physical capabilities in so far as physical defects in that profession may have significant consequences. It is also undeniable that those capabilities diminish with age (see, to that effect, with regard to the profession of fireman, Wolf , paragraph 41). It follows that possessing particular physical capabilities may be considered as a ‘genuine and determining occupational requirement’, within the meaning of Article 4(1) of the Directive, for acting as an airline pilot and that the possession of such capabilities is related to age.
69. Such an objective constitutes a legitimate objective within the meaning of Article 4(1) of the Directive.
71. In that regard, it should be noted that recital 23 to the Directive states that it is 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.
72. Moreover, in so far as it allows a derogation from the principle of non‑discrimination, Article 4(1) of the Directive must be interpreted strictly (see, by analogy, in relation to discrimination on grounds of sex, Case 222/84 Johnston [1986] ECR 1651, paragraph 36 and Case C‑273/97 Sirdar [1999] ECR I‑7403, paragraph 23, as well as, in relation to Article 2(5) of the Directive, to that effect, Petersen , paragraph 60).
81. The Court has also held that aims that may be considered ‘legitimate’ within the meaning of the first paragraph of Article 6(1) of the Directive and, consequently, appropriate for the purposes of justifying derogation from the principle prohibiting discrimination on grounds of age, are social policy objectives, such as those related to employment policy, the labour market or vocational training (see Case C‑388/07 Age Concern England  [2009] ECR I‑1569, paragraph 46, and Case C‑88/08 Hütter  [2009] ECR I‑5325, paragraph 41).