Available in Russian
Author: Elena Sorokina
Keywords: human rights; Court of Justice of the European Union; general principles of law; prohibition of age discrimination; social law
Discrimination on the basis of age is not a new phenomenon, remains widespread in all areas of society, and has the potential to affect everyone’s life. Discrimination based on age is now prohibited by the European Union’s primary and secondary law. The EU age discrimination laws are interpreted by the EU Court of Justice. In the landmark 2005 Mangold case the Court of Justice held that the prohibition of discrimination based on age constitutes a general principle of EU law and should be seen as part of primary law. The question remains about how this principle is ensured in practice. The aim of this article is to present the evolution of EU anti-discrimination law in the context of efforts to oppose age discrimination and to analyze the relevant decisions of the Court of Justice. The most numerous categories of cases, those related to age discrimination and to a mandatory retirement age, were chosen for analysis. Judicial interpretations of EU legislation regarding age discrimination present an ambiguous picture. It is possible to find a number of the Court of Justice’s decisions which appear to be too flexible, giving broad discretion to Member States to assert a legitimate purpose that would justify discrimination. The Court of Justice does not always examine the necessity or appropriateness of proposed measures asserting such justifications, thus ultimately failing to provide meaningful protection against age discrimination. However, there are reasons to believe that the Court of Justice may be more demanding in the future in its analysis of the justification for national rules, since some of its case law shows that it is ready to intervene when it deems it necessary. The Court of Justice has the difficult task of keeping a balance between, on the one hand, the aim of establishing a strong and settled principle of non-discrimination based on age within a fundamental rights approach and, on the other, a concern about ageism, labor market necessities, and the traditions of the Member States.
About the author: Elena Sorokina – Candidate of Sciences (Ph.D.) in Law, Research Fellow of the Human Rights Department, Institute of State and Law, Russian Academy of Sciences, Moscow, Russia.
Citation: Sorokina E. (2022) Rol’ Suda ES v razvitii standartov zashchity ot diskriminatsii po priznaku vozrasta [The role of the Court of Justice of the European Union in developing standards of protection against age discrimination]. Mezhdunarodnoe pravosudie, vol. 12, no. 3, pp. 117–138. (In Russian).
(2008) The Court of Justice in the Limelight – Again. Common Market Law Review, vol. 45, no. 6, pp. 1571–1579.
Belavusau U. (2013) On Age Discrimination and Beating Dead Dogs: Commission v. Hungary. Common Market Law Review, vol. 50, no. 4, pp. 1145–1160.
Bell M. (2011) The Principle of Equal Treatment: Widening and Deepening. In: Craig P., de Búrca G. (eds.) The Evolution of EU Law, Oxford: Oxford University Press, pp. 611–639.
Dewhurst E. (2015) Are Older Workers Past Their Sell-by-Date? A View from UK Age Discrimination Law. The Modern Law Review, vol. 78, no. 2, pp. 189–215.
Eichenhofer E. (2006) Sozialrecht der Europäischen Union, Berlin: Erich Schmidt.
Elkan D., Holdgaard R., Schaldemose G.K. (2018) From Cooperation to Collision: The ECJ’s Ajos Ruling and the Danish Supreme Court’s Refusal to Comply. Common Market Law Review, vol. 55, no. 1, pp. 17–53.
Entin K. (2022) Obshchie printsipy prava integratsionnykh ob’edineniy kak taynoe oruzhie Suda ES i Suda EAES [General principles of integration law as a secret weapon of the CJEU and of the Eurasian Economic Union Court]. Mezhdunarodnoe pravosudie, vol. 12, no. 2, pp. 64–83. (In Russian).
Freedland M., Vickers L. (2016) Age Discrimination and EU Labour Rights Law. In: Bogg A., Costello C., Davies A.C.L. (eds.) Research Handbook on EU Labour Law, Cheltenham, UK; Northampton, MA: Edward Elgar Publishing, pp. 527–546.
Hendrickx F. (2016) Setting the Scene: Development of the CJEU Jurisprudence on Age Discrimination in Employment. In: Manfredi S., Vickers L. (eds.) Challenges of Active Ageing. Equality Law and the Workplace, London: Palgrave Macmillan, pp. 3–27.
Herzog R., Gerken L. (2008) Stop the European Court of Justice. EUobserver. 10 September. Available at: https://euobserver.com/opinion/26714 (accessed: 31.07.2022).
Horton R.J. (2019) Justifying Age Discrimination in the EU. In: Belavusau U., Henrard K. (eds.) EU Anti-Discrimination Law Beyond Gender, Oxford: Hart Publishing, pp. 273–294.
Houser M. (2010) La spécificité du principe de non-discrimination en raison de l’âge. Revue Française de Droit Administratif, no. 2, pp. 323–332.
Ispolinov A.S. (2010) Doktrina kosvennogo effekta (soglasovannoy interpretatsii) v prave ES [Doctrine of the indirect effect (consistent interpretation) in EU law]. Evraziyskiy yuridicheskiy zhurnal, no. 10, pp. 26–36. (In Russian).
Ispolinov A.S. (2012) Khartiya osnovnykh prav ES: opyt trekh let primeneniya [EU Charter of Fundamental Rights: lessons of the first three years in application]. Evraziyskiy yuridicheskiy zhurnal, no. 12, pp. 61–68. (In Russian).
Jans J.H. (2007) The Effect in National Legal Systems of the Prohibition of Discrimination on Grounds of Age as a General Principle of Community Law. Legal Issues of Economic Integration, vol. 34, no. 1, pp. 53–66.
Kaya G. (2020) Age Discrimination as a Bone of Contention in the EU. In: Giegerich T. (ed.) The European Union as Protector and Promoter of Equality, Cham: Springer, pp. 391–415.
Macnicol J. (2006) Age Discrimination: An Historical and Contemporary Analysis, Cambridge: Cambridge University Press.
Masson A., Micheau C. (2007) The Werner Mangold Case: An Example of Legal Militancy. European Public Law, vol. 13, no. 4, pp. 587–593.
Meenan H. (2009) Reflecting on Age Discrimination in the European Union – the Search for Clarity and Food for Thought. ERA Forum, vol. 10, no. 1, pp. 107–124.
More G. (1999) The Principle of Equal Treatment: From Market Unifier to Fundamental Right? In: Craig P., de Búrca G. (eds.) The Evolution of EU Law, Oxford: Oxford University Press, pp. 517–553.
Oliveira A. (2016) A Freedom Under Supervision: The EU Court and Mandatory Retirement Age. In: Manfredi S., Vickers L. (eds.) Challenges of Active Ageing. Equality Law and the Workplace, London: Palgrave Macmillan, pp. 29–45.
Šadl U., Mair S. (2017) Mutual Disempowerment: Case C-441/14 Dansk Industri, acting on behalf of Ajos A/S v Estate of Karsten Eigil Rasmussen and Case no. 15/2014 Dansk Industri (DI) acting for Ajos A/S v The estate left by A. European Constitutional Law Review, vol. 13, no. 2, pp. 347–368.
Sargeant M. (2012) Employer Justified Retirement Ages. Available at: http://www.era-comm.eu/oldoku/Adiskri/08_Age/2012_Sargeant_2_EN.pdf (accessed: 31.07.2022).
Skidmore P. (2001) EC Framework Directive on Equal Treatment in Employment: Towards a Comprehensive Community Anti-Discrimination Policy? Industrial Law Journal, vol. 30, no. 1. pp. 126–132.
Smith A. (2016) Come Fly with Me: Age Discrimination and Objective Justification. Available at: https://www.matrixlaw.co.uk/wp-content/uploads/2016/03/05_10_2011_05_03_17_Andrew-Smith_Come-Fly-With-Me-1.pdf (accessed: 31.07.2022).
Tymowski J. (2016) The Employment Equality Directive: European Implementation Assessment. Available at: https://www.europarl.europa.eu/RegData/etudes/STUD/2016/536346/EPRS_STU(2016)536346_EN.pdf (accessed: 31.07.2022).