Today, age is one of the first discrimination grounds
in Europe and in France. People who are the most concerned are the “young” who
start on the labour market and the “old” who are near from retirement.
The EU Law creates a global law protection against
those discriminations.
1)
General Principles
Following the article 13 of the EC Treaty, the
Directive 2000/78 of November 27th, 2000 “creating a general framework in favor of equality treatment in the
employment and work area” rules the fight against work discriminations and
especially discrimination based on age.
The famous decision Mangold of November 22nd, 2005 proclaims a general
principle of EC Law of non-discrimination based on age.
This principle is very specific because it permits a
huge number of justifications of discrimination, even direct, based on age.
2)
Special dispensation
Indeed, Member States can foresee some justifications for
social political reasons : employment, labour market and professional training.
Employers can also justify direct discriminations based
on age when they prove an essential professional requirement and regarding to
involuntary retirement (“mise à la
retraite d’office”).
The European Community Court of Justice decided in the
case law Palacios de la Villa of
October 16th, 2007 that involuntary retirement was a reason to
justify a breach of the principle of non-discrimination based on age.
This decision has been remind in the ECCJ’s case law
of March 5th, 2009 The
Incorporated Trustees of National Council on Ageing. Employer can dismiss
an employee who reaches the retirement age if he proves that the means used
were necessary and suitable.
However, the ECCJ makes sure that Member States
respect the proportionality principle and apply the lawful and objective
justification test.
Indeed, in any case, each special dispensation to
respect the non-discrimination principle has to be justified by a lawful and
proportional aim and the means used have to be necessary and suitable.
States must exercise this control without the
necessity to make an exhaustive list of the justified discriminations.
The principle of non-discrimination based on age is
protected by the European Law but in certain circumstances, the right to be
distinguished according to age interferes with this principle.
This is the reason why the European Union tempts to
construct an age protection of the European workers by including
non-discrimination and a right to be distinguished, especially by the means of
positive actions.
3)
European Union scope
However, this protection is limited to the EC scope. It
was stated in ECCJ’s case law of September 23rd, 2008 Bartsch.
A link is necessary between the challenged Statute and
the European Law : article 13 TCE was not applicable to release the ECCJ
competence and the Directive 2000/78 is not applicable when facts happened
after the transposition of this latter.
4)
Assistance and appeal
Finally, one person
who thinks he/she is victim of a discrimination based on age has, in each
Member State, privileged interlocutor and specific appeal : in France,
associations, trade unions, Comities or even Worker Inspector can be used and
the HALDE (with is the specific independent organization competent for
discriminations) is an alternative way to rule the cases which is very
efficient and more and more used. At the latest step, employee could refer the
case to the Employment Tribunals.
Frédéric
CHHUM Avocat à la Cour
Anissa
YEFTENE
