According to the Court, the rule places workers in danger of “being excluded from the benefit of stable employment” solely on the basis of age.
At a European level, the situation is governed by the Equality in Employment Directive 2000, which lays down a general framework for combating certain forms of discrimination, including discrimination on grounds of age.
Under the Directive, different treatment on grounds of age, as a rule, constitutes discrimination prohibited by Community law.
However, the Directive does allow Member States to provide for differences of treatment and to consider them non-discriminatory if, within the context of national law, they are justified objectively and reasonably by a legitimate aim – in particular by legitimate employment policy and labour market objectives – and if the means to achieving such objectives are appropriate and necessary.
The case before the Court concerned a German law on part-time working and fixed-term contracts (Gesetz über Teilzarbeit und befristete Arbeitsverträge, known as the TzBfG). That law authorises, without restriction, except in specific cases of a continuous employment relationship, the conclusion of fixed-term contracts of employment once the worker has reached the age of 52.
The question for the Court of Justice was whether this is compatible with the Directive.
According to the Court, the purpose behind the German legislation was to promote the integration into working life of unemployed older workers, in so far as they encounter considerable difficulties in finding work.
An objective of that kind justifies, as a rule, “objectively and reasonably”, a difference of treatment on grounds of age, said the Court.
However, on this occasion it found that the provision went beyond what was appropriate and necessary to attain the legitimate objective pursued.
The Court accepted that Member States enjoy broad discretion in their choice of the measures capable of attaining their objectives in the field of social and employment policy. But it said that the German law:
“leads to a situation in which all workers who have reached the age of 52, without distinction, whether or not they were unemployed before the contract was concluded and whatever the duration of any period of unemployment, may lawfully, until the age at which they may claim their entitlement to a retirement pension, be offered fixed-term contracts of employment which may be renewed an indefinite number of times.”
“This significant body of workers, determined solely on the basis of age, is thus in danger, during a substantial part of its members’ working life, of being excluded from the benefit of stable employment which, however, as the Framework Agreement makes clear, constitutes a major element in the protection of workers.”
In this case, said the Court, it had not been shown that fixing an age threshold, as such, regardless of any other consideration linked to the structure of the labour market in question or the personal situation of the person concerned, was objectively necessary to the attainment of the objective which is the integration into working life of unemployed older workers.
