Information & advice

The Advocate General has given his opinion in the Spanish case of Félix Palacios de la Villa v Cortefiel Servicios SA.  The case addresses the issue of mandatory retirement ages‚ in the context of the Spanish law on collective agreements.  Mandatory retirement ages contained in collective agreements are lawful in Spain provided the employee has reached the normal retirement age stipulated in social security legislation and meets all the requirements for entitlement to a state pension.  The case was referred to the European Court of Justice to answer questions on the compatibility of the Spanish law with the European Directive 2000/78 which prohibits age discrimination in employment.

The Advocate General’s opinion is not a decision of the Court.  The Advocate General is an adviser to the European Court of Justice‚ and is there to provide guidance to the court‚ before it reaches its decision. It is unusual for the Court to disagree with the Advocate General’s opinion.

The Advocate General’s opinion was that the Spanish law allowing mandatory retirement ages was not unlawful‚ as it was outside of the scope of the Directive.  Advocate General Mazák said that ‘a national provision providing for the setting of a compulsory retirement age … does not for the purposes of Directive 2000/78 relate to ‘employment and working conditions‚ including dismissals and pay’‚ and does not therefore fall within the scope of that Directive.’  He went on to give his opinion that even if such a law was found to be within the scope of the Directive‚ the Spanish law in issue would not be unlawful as it could be objectively justified.  He stated that ‘Member States enjoy broad discretion in their choice of the measure capable of attaining their objectives in the field of social and employment policy’.

The opinion has potential implications for the Heyday case challenging mandatory retirement ages in the UK.  However there are important distinctions between the two cases.  The Advocate General’s opinion was that compulsory retirement under the Spanish law at issue in the Palacios case did not amount to a dismissal.  This opinion appears to be informed by the fact that compulsory retirement in the Spanish context is closely tied to entitlement to the state pension.  This is distinct from UK law‚ under which retirement at the default retirement age (provided by Regulation 30) is clearly stated to amount to a dismissal‚ and which is unrelated to the state pension.

We still recommend that cases where employees have been dismissed at or above age 65‚ by employers relying on the default retirement age‚ can be lodged at the employment tribunal to be stayed pending the decision in the Heyday case (see previous news item).

For the text of the Advocate General’s opinion go to http://eur-lex.europa.eu