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Pilot retirement

Don’t worry, it’s just a little exercise in “huh, are these two rulings consistent?” We’re lawyers, we don’t really care about the pilots, or about the air planes that might come crashing down on us if these rulings prove ill-advised.

In the blue corner, we have the Grand Chamber of the European Court of Justice, which concluded, under the rapporteurship of Judge Lindh, that

“Article 2(5) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the Member States may authorise, through rules to that effect, the social partners to adopt measures within the meaning of Article 2(5) in the areas referred to in that provision that fall within collective agreements on condition that those rules of authorisation are sufficiently precise so as to ensure that those measures fulfil the requirements set out in Article 2(5). A measure such as that at issue in the main proceedings, 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 said Article 2(5).

Article 4(1) of Directive 2000/78 must be interpreted as precluding a clause in a collective agreement, such as that at issue in the main proceedings, that fixes at 60 the age limit from which pilots are considered as no longer possessing the physical capabilities to carry out their professional activity while national and international legislation fix that age at 65.

The first paragraph of Article 6(1) of Directive 2000/78 must be interpreted to the effect that air traffic safety does not constitute a legitimate aim within the meaning of that provision.”

(Case C-447/09, Prigge et al. v. Deutsche Lufthansa, 13 September 2011.)

In the red corner, we have the High Council of the Netherlands, i.e. the Supreme Court, which concluded on July 13 in a case against KLM:

 Rechtmatigheid leeftijdsontslag in verband met vervroegde pensionering conform art. 5.4 CAO voor KLM-vliegers op vleugelvliegtuigen. Uitzondering op non-discriminatiebeginsel; maatstaf, objectief en redelijk gerechtvaardigd door een legitiem doel; passend en noodzakelijk middel. Uitzonderingsbepaling art. 6 lid 1 Richtlijn 2000/78/EG tot instelling van een algemeen kader voor gelijke behandeling in arbeid en beroep geïmplementeerd in art. 7 lid 1, aanhef en onder c Wet gelijke behandeling op grond van leeftijd bij de arbeid (Wgbl). Bewijslast. Van rechtswege beëindiging van arbeidsovereenkomst voor onbepaalde tijd wegens bereiken pensioenleeftijd niet strijdig met art. 7:667 lid 6 BW.

Or in English: automatic retirement upon reaching the age of retirement is not in violation of the law.

So did the High Council of the Netherlands ignore the ECJ’s precedent or not?

Sadly, perhaps, for those looking for trouble, the answer is: not. Instead, the High Council – uncharacteristically – explains carefully why the Prigge precedent can be distinguished. (Cf. par. 5.1, particularly.) In Prigge the justification for discriminating against old people was one of air safety, which did not constitute a legitimate aim under art. 6(1) of the Directive, as the Court concluded. In the KLM case, on the other hand, the Court of Appeals had held that the purpose of the offending policy was to ensure a sufficient supply of pilots in all ranks and levels of experience (cf. par. 5.2), i.e. what the Directive calls “legitimate employment policy, labour market and vocational training objectives”, aims that have been approved by the European courts on a number of occasions. (This EUtopialawblog post lists a number of them.) It should be noted that the Advocate-General, who can usually be counted upon to offer more of an explanation than the Court, in this case distinguishes Prigge in a one-line paragraph, par. 2.15.

The reason why this case caught my eye, finally, is that the Prigge ruling is monumentally stupid, from a policy point of view. If ever there is a case for a bit of creativity in interpreting the law, it is here. There has to be some way that the Directive can be made to allow for pilots to be compulsorily retired when they reach the age when they are no longer allowed to fly unsupervised. Given that art. 6(1) of Directive 2000/78 does not exhaustively list which aims are or are not legitimate, I think the Court should have allowed this one. The AG does too, and he makes this point at length in par. 2.14 of his opinion, quoting extensively from an annotation of the Prigge ruling. Of course, if you’re a judge, the fact that a precedent is stupid is pretty irrelevant, but I’m OK with a bit of on the record complaining. For the non-lawyers among us, this case is simply a useful reminder that just because both cases are about mandatory retirement ages for pilots, that does not mean that the cases have to go the same way.

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