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.
