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Age restriction on pilots contained in collective agreement is not compatible with EU law

21 September 2011 #Employment

A recent ECJ case (Prigge and ors v Deutsche Lufthansa AG), on appeal from the German Federal Labour Court, has held that a compulsory retirement age of 60 for Lufthansa airline pilots (set out in a collective agreement) was unlawful.  The ECJ concluded that this provision was a “disproportionate requirement” that went against International and German national measures whereby the mandatory retirement age for pilots is 65.   

It was argued that the aim of the automatic termination at 60 was primarily to protect public safety which was a “legitimate aim” in accordance with Article 4(1) of the Equal Treatment Framework Directive (the “Directive”).  However, the ECJ concluded that a provision of this nature was in fact contrary to the age discrimination provisions set out in the Directive. 

The ECJ also held that international legislation, which has been implemented into German law, does not prohibit pilots aged between 60 and 65 from flying commercial aircrafts – it simply imposes conditions and restrictions on their ability to do so.  To that end, a pilot aged between 60 and 64 is permitted to fly a commercial aircraft provided he/she flies as part of a multi-pilot crew whereby he/she is the only pilot within that crew to have attained the age of 60.  Article 2(5) of the Directive makes it clear that the provisions of the Directive are without prejudice to “measures laid down by national law which, in a democratic society, are necessary for public security”.  

As a result, automatically terminating pilots when they attain the age of 60, was considered to be a disproportionate requirement and therefore unlawful.

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