ECJ decides age limit of 65 on EU commercial pilots is not discriminatory

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Tuesday 29 August 2017

The ECJ has decided that the age limit of 65 for commercial air transport pilots in the EU Regulation on Civil Aviation Aircrew (1178/2011) did not breach the prohibition on age discrimination, or the right to engage in work and pursue a chosen occupation, set out in articles 21 and 15 of the EU Charter of Fundamental Rights.

The ECJ considered that the limitations placed on pilots over 65 met an objective of general interest within the meaning of the Charter and were proportionate in the circumstances. Agreeing with the Advocate General's Opinion, the ECJ held that the EU legislature has a wide margin of appreciation in relation to air safety, and the age-based criterion in this case was a proportionate means of achieving this aim. For broadly the same reasons, any interference with the pilot's right to engage in work or pursue an occupation was proportionate. (Fries v Lufthansa CityLine GmbH [2017] EUECJ-190 ).)



EU Regulation on Civil Aviation Aircrew

Commission Regulation (EU) 1178/2011 lays down technical requirements and administrative procedures related to civil aviation aircrew (see Legal update, Aviation safety: European Commission Regulation harmonising qualification and medical requirements for pilots published in Official Journal). It provides that a pilot who has attained the age of 65 years may not pilot an aircraft engaged in commercial air transport. A pilot between 60 and 65 may only pilot such an aircraft as part of a multi-pilot crew in which no other pilot has reached the age of 60. (Point FCL-065 of Annex 1 to the Regulation).

EU Charter of Fundamental Rights

  • Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation (article 15).
  • Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited (article 21).
Limitations on Charter rights are permitted if they are provided for by law, respect the essence of the rights concerned, are necessary and genuinely meet the objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others, and subject to the principle of proportionality (article 52(1)).
The Charter, being primary EU legislation equivalent to a treaty, can be prayed in aid when challenging secondary EU legislation (as in this case) and provisions of national law (as in Kücükdeveci v Swedex (Case C-555/07) [2010] IRLR 346 and Benkharbouche v Embassy of the Republic of Sudan [2015] EWCA Civ 33; see Practice note, The Charter of Fundamental Rights of the European Union: Is the Charter directly enforceable by individuals?).
The case reported below concerns whether the age bar on commercial pilots in the Regulation on Civil Aviation Aircrew was compatible with the rights in articles 15 and 21 of the Charter.


Mr Fries worked as a pilot for Lufthansa in Germany. His role also included training other pilots. Under the relevant collective agreement his employment was due to terminate on reaching retirement age under the pension scheme, two months after his 65th birthday. However, as soon as he turned 65 Lufthansa dismissed him, citing the EU Regulation on Civil Aviation Aircrew (see Background). Mr Fries argued that the age restriction in the Regulation was invalid as it was contrary to the EU Charter of Fundamental Rights (see Background). In any event, he argued that he could have continued in employment as an instructor, examiner and piloting "ferry flights" (flights where the aircraft has no passengers or cargo), since none of those activities fell within the definition of "commercial air transport" in the Regulation. He therefore sought remuneration for the two additional months in which he should have remained employed before retiring under the terms of the collective agreement.
The German Labour Court made a reference to the ECJ asking:
  • Whether the restriction on pilots aged 65 and over in the Regulation on Civil Aviation Aircrew is compatible with the prohibition on age discrimination in article 21 of the EU Charter of Fundamental Rights
  • Whether it is compatible with the right to engage in work and to pursue a freely chosen or accepted occupation in article 15 of the Charter.
  • Whether instructing or examining pilots, or piloting ferry flights, fall within the restricted activity of "commercial air transport" in the Regulation on Civil Aviation Aircrew.
Advocate General Bobek gave an opinion on 21 March 2017 that the age limit of 65 was both appropriate and necessary to the aim of achieving air traffic safety. The choice of age as the sole criterion, rather than a more individualised assessment, reflected a legitimate regulatory choice. The interference with article 15 was also proportionate, having regard to air safety, and also the fact that pilots were free to work in non-commercial fields. See Legal update, Age limit of 65 on EU commercial pilots is not discriminatory (Advocate General).
The ECJ held that the Regulation on Civil Aviation Aircrew was compatible with articles 15 and 21 of the Charter.
While the age limit of 65 did place limitations on articles 15 and 21, the limitations were provided for by law and genuinely met objectives of general interest recognised by the EU. In its judgment, the ECJ focused on the proportionality of the measures and concluded that they went no further than was reasonably necessary.
Furthermore, it was clear from the definitions section of the Regulation on Civil Aviation Aircrew that "commercial air transport" did not include the activities of training and examining pilots, or acting as a pilot in flights not carrying passengers, cargo or mail. Pilots over 65 were therefore free to pursue these activities.

Air safety constitutes objective of general interest

The ECJ held that the objective of establishing and maintaining a high uniform level of civil aviation safety in the EU is expressly laid down in the recitals to the Regulation on Civil Aviation Aircrew and maintaining it is an objective of general interest recognised by the EU. The court had regard to the fact that the objective of guaranteeing air traffic safety has been held to constitute a legitimate aim in the context of the Equal Treatment Framework Directive (2000/78/ECJ). This finding was made in relation to both Article 15 and Article 21.
Difference of treatment based on age proportionate
There was no doubt that the Regulation on Civil Aviation Aircrew established a difference of treatment based on age (paragraph 34).
The 65 year age limit, in the court's view, was a proportionate requirement which went no further than was reasonably necessary to achieve the objective of general interest. The Court cited Prigge and Others, C-447/09, in which it held that it was essential (to ensure safety) for pilots to possess certain physical capabilities; and that case that capabilities diminish with age. The measure of imposing a 65 year age limit made it possible to prevent a reduction of those physical capabilities and so was appropriate for achieving the objective.
On the question of whether the measure went further than was reasonably necessary, namely by prejudicing the interests of holders of a pilot's licence over the age of 65, the court had to have regard to the interests of wider society as well as the hardship to the individual concerned and here the correct balance had been struck. It was not unreasonable for the EU legislature to adopt an age limit in order to maintain adequate aviation safety in Europe.
The age limit did not have the automatic effect of forcing the persons concerned to withdraw definitively from the labour market; it did not necessarily entail termination of the employment contract or automatic retirement. Furthermore, they could practise their skills in air transport, just not in the commercial sector.
Part of assessing the appropriateness of the measure involves asking whether the objective was pursued in a consistent and systematic manner. This was called into question by Mr Fries since the age limit of 65 was not applicable in the field of non-commercial air transport. By making this distinction however, the EU legislature took into account the greater technical complexity of aircraft used in commercial air transport, which strengthened rather than weakened the proportionate nature of the measure concerned.

Assessing fitness on case-by-case basis not reasonable

As to the cut-off point of age 65 in particular, this too was reasonable. Mr Fries had argued that there was no scientific data to prove risk of greater accidents from this age group. Neither could it be assumed that a person's abilities necessarily declined from that age; factors indicating deterioration were unique to each individual and should therefore be assessed individually. But the court firmly rejected that approach on the basis that:
  • EU legislature enjoys broad discretion to complex medical questions such as whether physical capabilities decline with age. Where there is uncertainty as to the extent of risks to the health of individuals, the EU may take protective measures without having to wait until the reality and seriousness of those risks becomes fully apparent (Glatzel, C-356/12, EU: C:2014:350). It is open to the EU, faced with scientific uncertainties, to give priority to matters which it is certain that they guarantee a high level of safety, provided that they are based on objective data. The age of 65 may be regarded as a sufficiently high endpoint to practise as a pilot. It also reflected international rules on the subject of international commercial air transport, which in turn were based on extensive professional debate and expertise.
  • The EU legislature could not be required to provide for an individual examination of the physical and mental capacity of every holder of a pilot's licence over the age of 65.

Limitations on right to engage in work proportionate

EU case law has established that the freedom to choose an occupation and engage in work is not an absolute right but must be considered in relation to its social function. The prohibition in this case did not affect the actual substance of the freedom to choose an occupation since it merely imposed restrictions on those pilots who had attained the age of 65.
It was not disproportionate of the EU legislature to limit the individual rights of pilots to work beyond the age of 65, having regard to the requirements of aviation safety. The court referred to the proportionality arguments already set out in the judgment (in paragraphs 53 to 68) in relation to article 21, and effectively reaffirmed them in this context.
The ECJ has followed the AG's Opinion, although the reasoning is less developed. The AG explicitly adopted the approach that the Charter should be interpreted in the same manner as the Framework Directive, in particular that the circumstances of the case should be viewed through the lens of "genuine occupational requirement". Here, the ECJ refers to case law concerning the interpretation of the Directive, on legitimate aim and proportionality while at the same time keeping its focus firmly on the language of Article 52 of the Charter. Although the outcome is broadly the same, the ECJ appears to have adopted a less creative interpretative approach.
Given the broad discretion enjoyed by the EU legislature in matters to do with air safety, as well as to do with complex medical questions such as whether capabilities decline with age, it is not surprising that the ECJ reached the conclusion it did. For now, the status of the generalisation that physical capabilities tend to decline with age has been preserved.




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