The European Court of Justice found that the exclusion of retired employees from a recruitment exercise was indirect age discrimination but would be permissible if it was justified.
Facts
An Italian court asked the European Court of Justice (ECJ) to give a preliminary ruling on the conditions for participation in a recruitment exercise.
The Municipality of Gesturi published a call for expressions of interest for an analysis and consultancy role for the municipal recycling centre. The call set out various criteria, including “Not a retired private-sector or public-sector employee”. CO satisfied all of the professional requirements, but was not allowed to take part because he was a retired public sector employee. He brought a challenge saying that this was indirect discrimination.
The referring court asked the ECJ whether a provision that prevented such consultancy roles from being awarded to employees who were already retired was prohibited by the principle of non-discrimination in the Equal Treatment Framework Directive.
Decision
The ECJ held that this was not direct discrimination because the provision did not make direct reference to a particular age. However, it was indirect discrimination because a retirement pension depended on a reaching a particular number of years of employment and a certain age.
In relation to whether this discrimination could be justifed, the ECJ said the provision had a legitimate aim, but it was necessary to look at whether the exclusion of everyone who had retired was an appropriate and necessary way to achieve this aim.
Examples of possible justification in the Directive include the setting of special conditions on access to employment for young people or the fixing of a maximum age for recruitment. One of the aims of the provision is to ensure the rejuvenation of the personnel of public administrative authorities, by promoting the access of younger people to the civil service. This is a legitimate aim of social policy, and the promotion of a high level of employment is one of the ends pursued by the European Union. This means that the employment policy objectives of the provision must, in principle, be regarded as being capable of providing objective and reasonable justification.
Whether the means used to promote this policy are appropriate and necessary involves a balance between the desire to promote the access of young workers to employment and respect for the right of older persons to engage in work. The national court was concerned that older people might actually be better placed to carry out this complex role due to having more experience than younger people. They should also consider whether the provision goes further than necessary, as it does not take account of whether the level of retirement pension at the end of a professional career is reasonable.
The national court should assess whether the provision was actually justified, as it could assess all the facts and interpret the national law.
The judgment is available here
CA v Comune di Gesturi, Case C‑670/18 (2 April 2020)