Discrimination on the grounds of age
Age discrimination refers to the less favourable treatment of an individual or group due to conditions or requirements relating to age which cannot be shown to be justifiable.
Council Directive 2000/78 establishes a general framework for equal treatment in employment and occupation. It prohibits both direct and indirect discrimination on the grounds of age. It covers ‘conditions for access to employment’, including ‘selection criteria and recruitment conditions’, as well as ‘employment and working conditions, including dismissals and pay’ (Article 3(1)). However, it ‘does not apply to payments made by state schemes or similar, including state social security or social protection schemes’ (Article 3(3)).
Prohibition of age discrimination is accompanied by extensive possibilities for derogation. For example, Article 6(1) provides that age-based difference of treatment does not constitute discrimination if, within the context of national law, it can be objectively and reasonably justified by a legitimate aim (e.g. legitimate employment policy, labour market and training objectives) and achieved via appropriate and necessary means. For example, based on training requirements, this might include the fixing of a maximum age when recruiting for a particular post. Moreover, for occupational social security schemes, Member States may permit age-related conditions with respect to admission or entitlement to retirement and invalidity benefits, and the use of age criteria in actuarial calculations, so long as this does not result in discrimination on the grounds of sex.
Differential treatment of persons on the grounds of age with respect to social protection schemes is thus not discrimination. In contrast to Article 6(1), there is no requirement for an objective, reasonable and proportionate justification for such.