The Labour Court Siegburg has referred to the ECJ for a preliminary ruling the question whether the formation of age groups in social selection to ensure a balanced age structure with Article 6 of Directive 2000/78/EC is compatible. It keeps this in view of the "Age Concern" decision of the ECJ is doubtful, given that discrimination based on age thereafter only by social policy objectives and not by reasons that are subject only to the employers' interests, could be justified.
The case: The plaintiff is
since 2000 employed by the defendant as a machine operator. In the spring of 2000 decided the defendant, rather than be in a three-shift operation in the future only work in two-shift operation and to delete the previous weekend shifts. This accounted for many jobs.
The defendant agreed with the works with a balance of interests to list. The selection of terminating employees was based on a selection policy, which involved a point system and the formation of age groups for the preservation of the existing age structure. The job cuts should be followed in the various age groups each made proportional to the percentage of each age group in the total workforce.
The plaintiff was one of the employees to be made redundant. Without the age group training, however he would not have been affected by a cancellation. In his declaration against the dismissal action was the Labour Court from the decision and asked the ECJ the question to decide whether § 1, Paragraph 3, sentence 2 Consumer Protection Act, which under the settled law of the BAG, the formation of age groups for the preservation of the existing age structure in operating permits, with the Equal Treatment Directive is compatible.
The reasons for the order for reference:
It is questionable whether the formation of age groups to maintain the age structure of a gem. Article 6 of Directive 2000/78/EC is permissible exception to the prohibition of age discrimination.
The aim of preserving the age structure is a business and business-related purpose. In contrast, the ECJ has on 03.05.2009 (Rs. C-388/07 - "Age Concern"), that derogations from the principle of age discrimination only by social policy objectives such as can be legitimate employment policy, employment or training. These objectives differ according to the ECJ because of purely personal motives of the employer (Eg improvement of competitiveness) that they are in the public interest.
This chamber then has doubts that the aim of preserving the age structure can justify an age group training, since it serves primarily the interests of the employer.
For compatibility with European law, however, could speak, that point c) of the non-exhaustive list in Article 6 paragraph 1 sentence 2 of Directive 2000/78/EC only employers' interests into account by setting a maximum age for recruitment for declared admissible. Moreover, the ECJ in its ruling of 03.05.2009 example only to improve the competitiveness of the employer named as unlawful aim, while preserving the age structure should serve merely to remain competitive.
Link Notes:
The full text of the order is available here.
The "Age Concern" decision of the ECJ is here available
