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National judgements:

Age limit for young scientists

Federal Labour Court, judgment of 06.04.2011 - 7 AZR 524/09

The plaintiff, born in 1968, was employed by the defendant University from 2003 until 2007 on a fixed-term basis. His job was the promotion of young scientists to be prepared for the habilitation and also included teaching duties.

A decision of the University Rectorate stipulated that the temporary recruitment of scientific staff is permissible only if the employment relationship ends before the age of 40 - in exceptional cases at the latest six months later.

In 2007, the plaintiff was 39 years old. He and the university signed an alteration to the employment contract, under which the plaintiff was employed on a temporary basis until 2008. Without the resolution of the Rector, the employment contract would have been agreed beyond 2008, in any case for a period up to 2009.

The time limitation within the alteration of contract constitutes age discrimination according to § 7 ​​par. 1 AGG, which is not justified by objective reasons. There is also no reason for § 10 AGG, in accordance with which a different treatment on grounds of age is also permissible if it is objectively and reasonably justified by a legitimate aim.

The limitation has been declared by the court to be invalid.

 

Agreed Maximum age limit for pilots

Federal Labour Court, judgment of 08.12.2010 - 7 ABR 98/09

An airline company has determined a maximum age of 32 years for hiring pilots that have been trained by other airlines.

The age limit regulation thus limits the freedom of choice of employment for older job applicants.

A collective contractual agreement with the company that limits the maximum age for pilots trained by other airlines to 32 years is therefore invalid.

 

Age limit for Flight Captain

Regional Labour Court, Lower Saxony, judgment of 26.01.2012 - 7 Sa 1362/08

The plaintiff was born in 1948 and has been employed by the defendant as a flight captain since 1977. According to the framework agreement on employment conditions applicable to his employment, the age limit for pilots is 60 years of age. Pursuant to Section 27 subparagraph 1 of the Agreement, the employment relationship of the Cockpit Personnel without termination is terminated no later than the end of the month in which the age of 60 is reached. As a result, the employment relationship would end automatically from 2008 onwards.

The plaintiff seeks to establish that his employment relationship also extends beyond February 2008.

The Federal Labour Court sought a preliminary ruling from the European Court of Justice and asked whether EC Directive 78/2000 and / or the general principle of non-discrimination on grounds of age would preclude national rules (in this case the framework agreement on employment conditions, which recognizes an age-limit scheme for reasons of flight safety). The European Court of Justice replied that the provisions of the AGG would also apply to collective agreements concluded before the AGG came into force. Finally, discrimination on grounds of age would continue until the age limit is reached. This point in time constituted the applicability of the AGG. It was not necessary to withdraw the flight license from the pilot, who had reached the age of 60. According to international regulations, a pilot can continue to be deployed at the age, "if he is a member of a flight crew consisting of several pilots, and the other pilots have not yet turned 60."

The Regional Labour Court of Lower Saxony therefore ruled that the employment relationship was not terminated by the regulation in the framework agreement. The plaintiff is disadvantaged by the scheme on the basis of his age, which constitutes a violation of Sections 1, 7 subparagraph 1 of the AGG. Section 27 of the collective bargaining agreement continues to infringe EC Directive 78/2000 and is therefore ineffective.

 

ECJ judgements:

Discrimination in age limit (Mangold)

Subject of the proceedings of the CJEU was whether the provision of § 14 paragraph section 3 of the part-time and temporary employment law on the facilitated limitation of work contracts with elder workers (from 52 years of age and upwards) is compatible with Article 6 of Directive 2000/78 EC for equal treatment in employment and occupation.

Article 6 § 1 of the Directive provides that unequal treatment on grounds of age does not constitute a discrimination, required it objectively and reasonably serves a legitimate purpose within the context of national law. In accordance with the provisions of the national law, however, the age of the employee concerned is defined as the only criterion for the limitation of employment contracts. The CJEU ruled that the national law infringes the Directive concerning the prohibition of age discrimination. This cannot be justified by Article 6 section 1 of Directive 2000/8.

The verdict’s result is the incompatibility of § 14 TzBfG with the European Community law. Due to the European law’s primacy, German courts have to look at § 14 TzBfG as unapplied and ineffective.

CJEU verdict of 22.11.2005 - Case C-144/04

 

Age limitation in employment is discriminatory ( Kücükdeveci )

Subject of the proceedings were German provisions according to which periods of employment before the age of 25 are excluded from the calculation of the term of notice. 

Ms Kücükdeveci considered this as an infringement of the Directive 2000/78/EC on equal treatment in employment and occupation, with regard to the prohibition of age discrimination.

The interpretation of this prohibition proves that the national legislation, saying that periods of employment before the age of 25 are not considered in calculating the notice period, is not in conformity with the Directive.

According to the CJEU judgment every national court has to ensure the observance of the prohibition of age discrimination as enshrined in Directive 2000/78/EC in lawsuits between private individuals. Non-compliant provisions of national law should remain unapplied.

CJEU verdict of 19.01.2010 - Case C-555/07