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ECJ Update - November 2010

November 12th 2010
The Court of Justice of the European Union (CJEU) has recently passed two judgments related to age discrimination (C-45/09 and C-499/08).
The Court of Justice of the European Union (CJEU) has recently passed two judgments related to age discrimination.

1. In the first case (Gisela Rosenbladt v Oellerking Gebäudereinigungsges. mbH; C-45/09) the Court examined whether the automatic termination of an employment contract on reaching retirement age is lawful as in Germany, the Law on equal treatment (Allgemeines Gleichbehandlungsgesetz) provides that clauses on automatic termination of employment contracts on the ground that an employee has reached retirement age may escape the prohibition on discrimination on grounds of age. Under the German legislation, the power to adopt such clauses may be entrusted to the social partners and implemented by a collective agreement.

The Court in its decision held that Directive 2000/78 does not preclude clauses on automatic termination of employment contracts on the ground that the employee has reached the age of retirement such as that laid down in Germany by the collective agreement for employees in the commercial cleaning sector.

- Press release

- Judgment

2. In the second case (Ingeniørforeningen i Danmark acting on behalf of Ole Andersen v Region Syddanmark; C-499/08) the Court examined a Danish law granting a severance allowance to workers who have been employed in the same undertaking for at least 12 years and the fact, that this allowance is not paid to workers who, on termination of the employment relationship, may draw an old-age pension under an occupational pension scheme even if the person concerned intends to continue working.

The Court in its decision held that the law does pursue a legitimate aim (to facilitate the move to a new employment and to ensure that employees do not claim both the severance allowance and an old-age pension) and as such, in principle, it can be objectively justified. However, by precluding payment of the severance allowance to workers who, although eligible for an old-age pension from their employer, none the less intend to waive their right to such a pension temporarily in order to continue to work, the legislation goes beyond what is necessary to achieve the social policy objectives pursued by that provision, and is not justified.

Press release

Judgment