This case concerned Bulgarian mandatory retirement legislation. The Bulgarian Labour Code permits universities to retire lecturers and professors when they reach the age of 65. Employment can be extended beyond 65, but only by means of a series of fixed term contracts and only until the age of 68.

Facts

Mr Georgiev brought claims in the Bulgarian courts, claiming that the legislation was age discriminatory and his fixed term contract should be reclassified as an indefinite contract instead. The Bulgarian court referred the case to the ECJ. The main issue in this case was whether the legislation was capable of being justified under Article 6(1) of the Framework Directive 2000/78/EC and whether it could be shown to be a proportionate means of achieving a legitimate aim.

Decision

The ECJ first sought to identify the aims of the legislation.

The University and the Bulgarian government both argued that the legislation was justified, but agreed that the legislation did not state the aim it was enacted to meet. It was suggested that the aim may have been to allocate posts for professors in the best possible way between the generations (this concept of “intergenerational fairness” was approved as a legitimate aim in the Petersen case).

Reference was also had to the Advocate General’s opinion in Mr Georgiev’s case where he suggested that a mix of different generations of teaching staff would promote an exchange of experience and innovation thereby helping the development of teaching and research at the university.

The ECJ followed Petersen and held that in principle, it is reasonable for a Member State to set an age limit to achieve the promotion of younger professors and maintain quality teaching. The ECJ also agreed with the AG’s opinion, but held that it would be for the national courts to determine the actual aim of the legislation.

The ECJ then looked at proportionality.

The maximum age limit of 68 was noted by the ECJ as being five years higher than the state pension age in Bulgaria and the age at which other workers can be compulsorily retired. On this basis, university professors are able to pursue their career for a relatively long period compared to the rest of the workforce. It was also significant that the age limit was not chosen purely by reference to a specific age but took account of the age at which persons are entitled to receive pensions.

In relation to the use of fixed term contracts after the age of 65, the ECJ referred to the case of Mangold. In Mangold the ECJ found that a law allowing employers to retire employees at 52 and offer fixed term contracts for an indefinite period thereafter was not proportionate. The result was that employees could be denied stable employment for a substantial period of their working life.

The ECJ held that the Bulgarian legislation was different to that that examined in Mangold. It could be a proportionate means of achieving the aims pursued and was capable of being justified, providing the legislation pursued a legitimate aim (which would be for the national court to decide). The ECJ was persuaded by the fact that the age at which fixed term contracts had to be used was much higher than in Mangold (65 in this case, compared to 52 in Mangold). The ECJ ruled that the use of fixed term contracts appears to balance the needs of the universities and the needs of professors. It could potentially achieve the aims and was done in a way which was not solely connected to the age of the person concerned because it was also connected with that person’s entitlement to receive a pension.

Consequently, the ECJ ruled that legislation such as that in the Bulgarian Labour Code could be justified provided it follows a legitimate aim (such as the delivery of quality teaching and ensuring the best possible allocation of posts for professors between the generations), and provided that it makes it possible to achieve that aim by appropriate and necessary means.

The judgment is available here.

Georgiev v Tehnicheski universitet - Sofia, filial Plovdiv (C-250/09; C-268/09), 18 November 2010