Legal background

EU law sets an age limit of 65 for commercial pilots: the Regulation on Civil Aviation Aircrew. Between the ages of 60 and 65, an individual may only pilot a commercial plane as part of a multi-pilot crew, providing every other member of the crew is under 60.

Facts

Mr Fries was employed as a pilot for Lufthansa CityLine GmbH (“Lufthansa”). As part of his role, he also trained other pilots. His employment was subject to a collective agreement, under which he was entitled to two months further employment upon reaching 65 years old, before his employment automatically terminated upon his receipt of his pension.

Lufthansa terminated his employment immediately upon reaching 65 years of age, citing the Regulation. Mr Fries therefore brought a claim in the German Labour Court in respect of the two additional months’ pay he would have received had he continued to be employed under the collective agreement.

Mr Fries argued that the age restriction in the Regulation was invalid as it was contrary to the EU Charter of Fundamental Rights (“the Charter”). Article 15 of the Charter provides that everyone has a right to pursue a free chosen occupation, whilst article 21 prohibits age discrimination. Article 52(1) sets out the limits on those rights; limitations are permitted if they are provided for by law, respect the essence of the rights concerned, are necessary and genuinely meet the objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others, and subject to the principle of proportionality.

Mr Fries also argued that that he could have continued in employment in a different capacity. He could have been an instructor to other pilots, an examiner of pilots, or a pilot of flights where the aircraft has no passengers or cargo (known as “ferry flights”). Mr Fries said that these activities were outside of the scope of the Regulation.

The German Labour Court referred the case to the ECJ to decide whether the Regulation was compatible with articles 15 and 21 of the Charter.

Advocate General opinion

The opinion of Advocate General Bobek was that the age limit of 65 was both appropriate and necessary to the aim of achieving air traffic safety.

The fact that the age restriction at issue only applies to pilots of aircraft engaged in commercial air transport (and not other aircraft) reinforces the proportionate nature of the measure, since different rules apply to different fields of operation according to the hierarchy of risks involved.

The choice of age as the sole criterion, rather than a more individualised assessment, therefore reflected a legitimate regulatory choice. The interference with article 15 was also proportionate, having regard to air safety.

The cut off at 65 years of age was proportionate. A sole criterion of a simple age limit, rather than a more personal assessment of an individual’s physical capabilities, reflected a choice that the EU was legitimately able to make. Proportionality was embedded into the rule because the restrictions increased progressively with age, beginning at 60 and becoming more severe at 65 when the prohibition would take effect.

Advocate General Bobek said that there could “hardly be any question that physical capability declined with age”. Given the nature of the case before the Advocate General, it is surprising that such a sweeping statement should be made about an age group. Although evidence suggests that it is true in general, it is not true at the individual level; there exist plenty of 65 year olds in better physical fitness than 40 year olds. Employment law commentator Michael Rubenstein has commented that this opinion reinforces age-related stereotypes, rather than challenging it.

The Advocate General’s opinion is available here.

The ECJ’s decision

The ECJ agreed with the Advocate General’s opinion.

Legitimate aim

The ECJ noted that the objective of the Regulation is laid out within its wording. It aims to establish and maintain a high level of civil aviation safety in the EU. The ECJ noted the decision of Prigge where it had previously held that the objective of guaranteeing air traffic safety could be a legitimate aim in the context of the Framework Direct 2000/78/EC.

Proportionality

This was the crux of the case before the ECJ.

The ECJ agreed with the Advocate General’s opinion. The ECJ again referenced the Prigge case where it had held that it was “undeniable that [physical] capabilities diminish with age”.

The ECJ rejected Mr Fries’s arguments that that no increased danger linked to the use of pilots aged 65 or over in commercial air transport has been shown by any scientifically proven medical data and that the deterioration of physical and mental capabilities does not begin at a specified age, but depends on factors unique to each individual. The ECJ held that EU legislation enjoys a broad discretion. It need not wait until the reality of risks becomes fully apparent.

The ECJ said that it should be noted that the age limit of 65 can be regarded as sufficiently high to serve as the natural endpoint for the ability to work as a commercial pilot. The ECJ referred, by analogy, to the Petersen case (see paragraph 52). The ECJ also noted that there were many international rules on commercial pilots which set 65 as the age limit.

The ECJ said that the EU chose to combine an individualised approach for the 60 to 64 age group with the age limit of 65. This represents a choice firmly rooted in the relevant international rules, which are themselves based on the current state of medical expertise in that field.

For these reasons, the ECJ held that the Regulation is compatible with the Charter.

The judgment is available here.