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Compulsory Retirement Age: ECJ Judgment

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'Confusing' is the word that comes to mind when reading today's ECJ decision in Fuchs v Land Hessen. If you want three words, 'verging on incomprehensible' work quite well.

The ECJ was asked to decide a number of questions on when a compulsory retirement age is justified. It seems to hold (para 50) that a retirement age is potentially justified to encourage the promotion of a younger workforce. Even more controversially, it suggested it is legitimate to retire older workers to prevent possible disputes concerning employees' fitness to work beyond a certain age.

The ECJ also seems to adopt a test of whether it is "reasonable" to adopt a retirement age (paras 60 and 83), rather than whether it is proportionate to do so. Reasonable and proportionate, whilst similar, are not quite the same thing.

On the facts, the ECJ held that a German law requiring state prosecutors to retire at 65 (albeit subject to some exceptions) on a generous pension was justified.

A question which was referred to the ECJ was whether cost alone can justify discrimination (in the UK, we currently have the controversial 'costs plus' justification). Unfortunately, the ECJ did not deal with this point.