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The EU Ban on Age-Discrimination and Older Workers: Potentials and Pitfalls

An ageing population is a general demographic trend challenging economic sustainability in terms of employment and pensions as well as overall social cohesion in terms of intergenerational solidarity. The prohibition of discrimination on the grounds of age is potentially an important legal mechanism to promote active ageing. However, equal treatment may well turn out to be a less successful strategy than expected. After presenting recent developments in non-discrimination law more generally (section 2), this article turns to age discrimination in particular (section 3) and the Court of Justice of the European Union (CJEU) case law on compulsory retirement in relation to the Hörnfeldt case. The 'double bind' in non-discrimination law, with on the one hand, individual interests relating to fundamental rights and, on the other, more collective interests in line with active ageing, but also age as a traditional social stratifier, has led to a situation in which also direct age discrimination is justifiable (Article 6.1, Equality Employment Directive) and compulsory retirement is widely accepted by the CJEU. This scope for justified age discrimination is mainly to the detriment of EU active ageing strategies. However, it is important to consider the implications of a ban on compulsory retirement. This article argues that setting aside these provisions may well undermine employment protection as we know it, and also general developments in terms of 'good quality' work. Finally, the economic crisis and rising youth unemployment have made active ageing policies increasingly difficult.