The ECJ has handed down judgment in two cases concerning the justification of difference of treatment on grounds of age: Wolf v Stadt Frankfurt am Main, on the interpretation of Article 4 (Occupational Requirements) of the Equal Treatment Framework Directive and Petersen v Berufungsausschusss fuer Zahnaertze fuer den Bezirk Westfalen-Lippe on the interpretation of Article 6 (Justification of differences of treatment on grounds of age).
Genuine Occupational Requirements
Mr Wolf applied to work as a fireman in the Federal State of Hesse, Germany. However his application was not considered because local regulations provided that recruitment to intermediate career posts in the fire-service (which involved fire-fighting on the ground and rescuing people) was not open to anyone over 30.
The ECJ held that the German Government's objective of ensuring the operational capacity and proper functioning of the professional fire service was a legitimate objective within Article 4(1).
The ECJ held that the maximum recruitment age was proportionate to its aims. The ECJ took into consideration that fire-fighters had to complete a two year training programme, and that an individual recruited before the age of 30 would ordinarily be able to complete the physically demanding role of a fire-fighter for at least 15 or 20 years. However, if the fire-service recruited older applicants, then the fire-service might be short of officials who could complete the most physically demanding duties or who could complete these duties for a sufficiently long period.
As the ECJ found that the difference in treatment on the grounds of age was justified under Article 4(1), it did not go on to consider justification under Article 6(1).
Justification under Article 6
In Petersen, the ECJ was asked to determine whether German legislation which introduced a maximum age of 68 for doctors and dentists practising on panels within the German national health system (which covers 90% of patients) could be justified. This rule was said to protect the health of patients, since it was thought that the performance of doctors and dentists declined from age 68 onwards. The ECJ held that, because dentists who practised outside the panel system were not bound by the rule, it was not necessary to achieve the protection of public health and could not be justified under either Article 2(5) or Article 6(1).
However the ECJ held that the distribution of employment opportunities among the generations could be a legitimate objective within Article 6(1). The ECJ held that the question of whether the measure was appropriate and necessary would depend on the local labour market, and whether there was in fact an excessive number of panel dentists or a latent risk that this would occur.