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2 June 2020

Academic Board Insight: Can retired people be excluded from job offers?

Case C-670/18, 2 April 2020, CO v. Comune di Gesturi

Author: Jean-Philippe Lhernould (University of Poitiers, France)

According to well-established case-law dealing with alleged age discrimination, Member States enjoy broad discretion in their choice to pursue a particular aim in the field of social and employment policy and in the definition of measures capable of achieving the aim (eg. case C-143/16, Abercombie & Fitch). However, that discretion cannot have the effect of frustrating the implementation of the principle of non-discrimination on grounds of age (Case C-388/07, Age Concern England).

The mix of different generations and the establishment of an age structure that balances young and older employees can sustain measures in favour of the recruitment of younger employees (Case C-159/10, Palacios de la Villa). Does it mean, like in the present case, that a consultancy job offer process may expressly exclude persons being retired for the purpose of encouraging the recruitment of junior workers? The answer provided by the CJEU in the reported case is clear at first glance: It is understandable to refuse to recruit retired workers who left the job market and who receive a pension in order to facilitate access jobs by young people. However, the answer of the CJEU is more balanced than it seems. The referring court will indeed be able to come to that conclusion only after testing the regulation at stake: Is the age-related measure really based on a legitimate aim? If so, is it proportionate and necessary? If the national court considers after further investigation that the domestic regulation is exclusively justified by budgetary measures, the aim will not be classified as legitimate. This said, it is usually easy to demonstrate that the aim of the age-related measure is (also) to encourage the recruitment of younger people, which is seen as a legitimate aim.  The stage of the proportionality test will be more difficult to pass though. In the reported case, the Italian Court will have to answer two questions: 1° Will the exclusion of retirees really lead to stable jobs for junior workers considering the fact that, as the CJEU holds, senior workers are more fitted for analysis and consultancy activities? 2° Should their exclusion be limited to those actually receiving an adequate pension amount and not extended to all people who are entitled to a pension? 

Combatting age discriminations implies to fight against stereotypes. By trying to protect young people through what could be ill-adapted age-related measures, the risk of discriminating older people is real. The latter ones should therefore not be excluded from the job market for the sole reason that they have reached the pensionable age or because the age-related measure should facilitate access to the job market of younger people, especially if there is no evidence of such recruitments. All in all, the Court of justice wishes to preserve a fair balance between the different interests at stake. This is the condition for avoiding age discrimination. National courts must therefore ascertain that the interest of maintaining the active employment of older people has been taken into account, respecting opposite interests. A balance must be found between the right of young people to have access to employment and the right of older people to stay or to come back on the job market.

If the guidelines are clear, their implementation at national level is uneasy and leaves room for subjective interpretation. There is a thin line between a discriminatory age-based distinction and a non-discriminatory one, especially when there are opposite interests between various age categories. Let us recall that mere generalisations are not sufficient to justify a difference of treatment based on age. A high standard of proof is required. National courts should keep this methodology well in mind.