Justifying Age Discrimination in Europe: A Case Law Analysis

The Directive 2000/78/EC regulates age discrimination within the European Union. The challenge posed by this legislation is to define the “how and why” of the age protection and to balance equality with economic interests. The Gordian knot is here represented by Article 6 of the Directive, which allows Member States to justify age discrimination when a legitimate aim is provided, and the means chosen to achieve that aim are proportionate and necessary. The implementation of Article 6 by Member States led to contrasting interpretations that define age equality both as a social priority and an obstacle to the economic growth. Member States have therefore referred to the Court of Justice of the European Union (CJEU) to seek a harmonious interpretation of age protection, but the judgments of the Court eventually reveal how the conflict between equality and economic interests is far from being solved. This article discusses these jurisprudential developments and demonstrates how the principle of proportionality applied by the Court is influenced by market-based tendencies that dissolve that “Aristotelian” idea of equality. Consequently, cases are holistically compared on a cross-case level to contribute to a normative theory able to combine age justifications with the common principles and values that underlie European legislations.