The ECJ has given its judgement on a German law setting a maximum age limit of 68 for dentists to be accredited to work in the German national health service.
Facts
Ms Petersen worked as a dentist for the German national health service. She was part of a panel. She, was informed that her authorisation to provide panel care would expire once she reached 68 in accordance with German law which banned practice as a panel dentist after the age of 68. There is no similar age restriction for private dentists who do not work on the panel.
Ms Petersen brought a claim in the German Courts for age discrimination.
Decision
The ECJ first looked at the objectives of having such a law and identified two legitimate objectives: the protection of the health of patients (as it is thought that the performance of dentists declines after a certain age), and the financial balance of the German health system.
Having identified the objectives, the ECJ assessed these from Article 2(5) of the Directive. This states that the Directive is without prejudice to measures laid down by national law which are necessary for the protection of health.
The ECJ ruled that the age limit may be necessary, but this depends upon which of the two objectives identified were being pursued by the German government.
The ECJ stated that if the objective pursued is the protection of the health of patients from incompetent dentists, the law would not be necessary and proportionate as it only applied to dentists in the public health care system, not the private sector. This disparity renders the limit disproportionate. If, on the other hand, the aim is to preserve the financial balance of the German health system, the age limit may be necessary as it limits the number of dentists employed within the national health system and so saves money. The case will return to the national court for it to consider what the objective was that was being pursued by the law.
In the alternative, the German government submitted that the law was justified under Article 6(1) as an “appropriate and necessary” measure that had the objective of ensuring a fair distribution of employment opportunities among the generations. If there were a situation in which there were an excessive number of dentists in the national health system, the age limit might be necessary and proportionate to give younger generations a chance of employment. The national court will also consider whether such a situation exists.
Despite the decision of this case, the German government are bringing in reforms that will soon result in the abolition of the maximum age limit of 68 for dentists.
The judgment is available here.
Petersen -v- Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe C-341/08