Prohibiting airline pilots from working after the age of 60 constitutes discrimination

A collective agreement providing an automatic termination of the employment contract of pilots at the age of 60 is discriminatory according to the Court of Justice.

On 13 September 2011, the European Court of Justice (ECJ) ruled on a provision of a collective agreement applicable to the employees of a German airline company. This provision determined that the employment contracts of pilots terminated automatically when they reached the age of 60.

Pilots affected by this collective agreement claimed that they were discriminated against on grounds of age. In their employer's opinion, this difference in treatment was justified: firstly, the airline company considered the physical capabilities related to age to be a genuine and determining occupational requirement for acting as an airline pilot. Secondly, the prohibition was thought to be a measure necessary for the protection of public health and security.

The Court did not share this opinion.

The Court paid particular attention to the fact that international and national legislation provides a limitation on the possibility for pilots to work as pilots after the age of 60, and not a prohibition: they can fly until they are 65, but only if they are member of a multi-pilot crew of which the other pilots are under 60. The Belgian rules on this are similar.

For these reasons, the ECJ considered an absolute prohibition to be a disproportionate measure.

In those circumstances, a limitation for pilots older than 60, and a prohibition for pilots beyond 65 to act as pilots are justified differences in treatment within the context of national law. An absolute prohibition on airline pilots from working after the age of 60 will not be considered as legitimate.

This judgement once again makes clear that, when basing a difference in treatment on age and this difference is not provided by national legislation, one should pay attention to ensure it is a genuine and determining occupational requirement, it can be objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.