Document Type

Article

Publication Title

Columbia Journal of European Law

Publication Date

2016

Abstract

On October 2, 1997, the Member States of the European Union signed the Treaty of Amsterdam which amended the European Community Treaty (ECT). Among the Amsterdam Treaty's most important new provisions was ECT Article 13, which authorized the Council of Ministers, acting unanimously, to "take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief disability, age or sexual orientation." The Council acted with surprising rapidity to adopt Directive 2000/78, which prohibits discrimination in employment on all the listed bases (except for "racial or ethnic origin, " which is covered by Directive 2000/43). Since December 2, 2003, the end of the period for Member State implementation of Directive 2000/78, the Court of Justice has issued numerous judgments interpreting and applying the Directives provisions. By far the largest number have concerned the Directives prohibition of discrimination in employment based on age. To date there has been relatively little American (or indeed EU) academic commentary upon the Court's judgments. This article is accordingly timely in its presentation of the terms of Directive 2000/78, and its critical examination of the Court judgments concerning the prohibition of discrimination in employment based on age. Moreover the article compares the impact of the Directive and the Court judgments with the prohibition of discrimination in employment based on age through the U.S. Age Discrimination in Employment Act (ADEA), initially adopted in 1969. As amended in 1984, the ADEA totally prohibits employers from setting a compulsory retirement date, except where advanced age tends to impair an employee s occupational qualifications essential for performance in a particular profession or job. In Part I, the article describes the operational provisions of Directive 2000/78 relevant to the prohibition of age-based discrimination. The principal focus of the article, in Part II, is a description and critical examination of the four Court judgments reviewing national rules that authorize employers to set an age (usually sixty-five) for the compulsory retirement of employees. Part III supplements this with a description and critical examination of national compulsory retirement rules for certain specific professions or occupations (e.g., airline pilots, policemen, firemen, judges, prosecutors). Because the Court of Justice's judgments have held that national rules authorizing employers to set a compulsory retirement age do not violate Directive 2000/78, a natural question is whether this judicial conclusion can be considered to be appropriate, as compared to the total prohibition of compulsory retirement in the U.S. After considering the significant difference between the limited social impact of the prohibition of compulsory retirement in the U.S., as contrasted with the significant adverse social impact of prohibiting compulsory retirement in many EU Member States, the article concludes that substantially higher unemployment rates among young people under thirty in some EU States justify their governments' rules that authorize employers to set a compulsory retirement age. Accordingly, the Court's judgments that permit national rules to authorize compulsory retirement in order to open employment opportunities for younger workers can be evaluated as appropriate and justified.

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