Information & advice

On 23rd September 2008‚ Advocate General Mazák delivered his opinion to the European Court of Justice (ECJ) on the questions referred to the ECJ in the Heyday case. The Advocate General’s opinion is guidance to the ECJ‚ not a legally binding decision. It is followed in most‚ but not all‚ cases.

Five questions were referred to the ECJ. The three questions specifically on mandatory retirement concerned whether the UK law setting the national default retirement age was within the scope of the EU Directive. The UK Government argued that it was not‚ and that therefore the lawfulness of the default retirement age could not be challenged under EU law.  After the case had already been referred to the ECJ‚ these questions were in fact answered by the ECJ in the Spanish case of Palacios. The ECJ ruled in Palacios that national rules on mandatory retirement did fall within the scope of the Directive‚ and would be unlawful unless they could be objectively justified.

The Advocate General confirmed that these questions had been answered in the Palacios case.  His opinion also stated that it was not for the ECJ to look into the question of whether the UK law itself was justified. This was for the High Court to decide‚ on the detailed evidence that has been put before it.

If the ECJ agrees with the AG on this point‚ the case will be referred back to the High Court‚ where the Government will have to show that the default retirement age is justified. The Government argues that it is justified in order to meet the aims of workforce planning and avoiding an adverse impact on the provision of occupational pensions and other work-related benefits. The High Court will have to decide whether the evidence supports this.

The other two questions referred to the ECJ concerned the scope given to employers to justify direct discrimination and the precise meaning of the objective justification test in the EU Equal Treatment Directive. The Advocate General’s opinion was that the UK law was compatible with the Directive – in his view the age regulations do not give employers too much scope to justify direct discrimination. If the ECJ follows this part of the AG’s opinion‚ the status quo on justification of direct discrimination on grounds of age will remain. The decision of the High Court on whether mandatory retirement is justified will be made in the light of the ECJ’s guidance on the justification test in the Directive.

The ECJ’s decision is expected in December 2008‚ or January 2009.