10 Sep 2021
Advising an affiliated entity of a major Latvian bank on the purchase of one Embraer EMB-135BJ (Legacy 650) aircraft
19 Sep 2011
During the dispute, the German federal labour court asked the Court of Justice whether a collective agreement with an age limit of 60 for airline pilots was compatible with EU law. In particular, the reference for a preliminary ruling concerned the interpretation of Articles 2(5), 4(1) and 6(1) of Council Directive 2000/78/EC dated as of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.
The question arose as to the proceedings between, on the one hand, flight captains Mr Prigge, Mr Fromm and Mr Lambach and, on the other hand, their employer Deutsche Lufthansa AG concerning the automatic termination of their employment contracts at age 60 pursuant to a clause in a collective agreement.
In accordance with the Joint Aviation Requirements – Flight Crew Licensing 1, which are also applicable to Germany, only a pilot from the age of 65 cannot act as a pilot of an aircraft engaged in commercial air transport operations, while pilots at the age 60-64 can act as pilots if certain requirements are met: (1) a holder of a pilot licence is a member of a multi-pilot crew and provided that, (2) such holder is the only pilot in the flight crew who has attained age 60.
The national court considered that the limitation of the duration of the employment contract based on the age of the employee is only justified where, because of the activity the employee performs, the passing of a certain age presents a risk. The German court furthermore held that the age-limit for pilots guarantees not only the proper performance of the activity but, in addition, protection of the life and health of crew members, passengers and persons in the areas over which aircraft fly.
The European Court of Justice (ECJ) held that it was not necessary to prohibit pilots from acting as pilots after age 60 but merely to restrain those activities in accordance with national and international legislation. Under Article 2(5) of the Directive, the Directive is ‘without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others’. Therefore, ECJ ruled that a measure, which fixes the age limit from which pilots may no longer carry out their professional activities at 60 whereas national and international legislation fixes that age at 65, is not a measure that is necessary for public security and protection of health, within the meaning of the Article 2(5) of the Directive.
Moreover, under Article 4(1) of the Directive ‘Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 [of the Directive] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate’. ECJ stated that the social partners imposed on those pilots a disproportionate requirement within the meaning of Article 4(1) of the Directive.
The first paragraph of Article 6(1) of the Directive states that a difference of treatment on grounds of age shall not constitute discrimination if it is objectively and reasonably justified, within the context of national law, 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. ECJ therefore held that air traffic safety does not constitute a legitimate aim within the meaning of that provision.
Thus the European Court of Justice in this case ruled that governments can impose certain restrictions on pilots at the age of 60, but 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.
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