A recent decision of the ECJ illustrates that in exceptional circumstances, a compulsory retirement age, may remain lawful under EC equality legislation.

We previously reported the Advocate-General’s opinion, in the case of Mr Fries, who was a commercial pilot with Lufthansa whose employment was terminated when he reached the retirement age of 65. This was in accordance with an EU Aviation Safety Regulation, which he challenged as being discriminatory on grounds of age contrary to the Charter of Fundamental Rights.

Upholding the opinion of the Advocate-General, the ECJ held the age limit of 65 for commercial pilots to be compatible with EU Law. The court accepted the limitation involved differential treatment based on age. That difference was however justified here on the grounds of maintaining a high uniform level of aviation safety. It was undeniable that physical capabilities decreased with age.

Although the pilot argued there was no scientifically proven data establishing increased danger at age 65 and that this would depend on factors unique to each individual, the ECJ held that faced with scientific uncertainties, it was open to the EU legislature to take measures certain to guarantee a high level of safety and the age limit of 65 could be regarded as sufficiently high.

The court also considered it important that the pilot could still engage in activities such as training pilots or piloting flights not carrying passengers, cargo, or mail. The policy only restricted the pilot from engaging in commercial air transport.

The case serves as a rare example of a retirement age being capable of objective justification, albeit on very specific facts.