The facts

Mr Hörnfeldt began working for the Swedish postal services agency in 1989. For most of his employment, he worked just one day a week (although he wished to do more), but eventually he worked 75% of full time hours. He reached 67 on 15 May 2009 and, in accordance with the Swedish mandatory retirement “67-year rule”, was retired at the end of that month.

Because Swedish pensions are calculated according to income earned over a whole career, Mr Hörnfeldt’s pension entitlement was low and did not afford him enough money to live on.

Mr Hörnfeldt brought a claim arguing that his retirement was direct age discrimination and that his dismissal should be annulled. He argued that, because the 67-year rule did not take into account other factors such as his low pension entitlement, it could not be justified.

The key question for the ECJ was whether or not the 67-year rule was justified.

The ECJ decision

The Swedish Government argued that the legitimate aims behind the 67-year rule were:

• to avoid termination of employment contracts in situations that are humiliating for workers by reason of their advanced age;
• to enable pension regimes to be adjusted on the basis of the principle that income received over the full course of a career must be taken into account;
• to reduce obstacles for those who wish to work beyond their 65th birthday; 
• to adapt to demographic developments and anticipate the risk of labour shortages;
• to establish a right, and not an obligation, to work until the age of 67, in the sense that an employment relationship may continue beyond the age of 65; and
• to make it easier for young people to enter the labour market. 

The ECJ accepted that these aims are, in principle, legitimate. It then went on to consider whether the 67-year rule was an appropriate and necessary way of achieving these aims.

When considering this, the ECJ said that a compulsory retirement age was a commonly used tool by Member States to strike a balance between political, economic, social, demographic and/or budgetary considerations, and those Member States needed the discretion to find the right balance. This is perhaps why the ECJ did not consider whether 67 was the appropriate age to achieve these aims and why it did not assess whether another, less discriminatory, age (such as 70) might still allow the Swedish government’s aims to be fulfilled.

The ECJ also referred to certain state benefits that an individual will be able to receive where their pension entitlement is low, as well as alternative employment arrangements that those aged 67 or above can enter into when their employment terminates (such as fixed term contracts). The 67-year rule does not force individuals to withdraw definitively from the labour market, but simply lays down the conditions under which an employer may derogate from the prohibition of age discrimination.

After having considered these factors, the ECJ concluded that the 67-year rule was justified.

The judgment is available here.

Torsten Hörnfeldt v Posten Meddelande AB , C‑141/11