Compulsory Retirement and Age Discrimination: A New Deference to Derogation?

Abstract

This article examines a recent decision of the ECJ on state derogation from the age discrimination principle contained in the Employment Equality (‘Framework’) Directive 2000/78/EC. The case, Palacios de la Villa v. Cortefiel Servicios SA, originating from Spain, involved a challenge to legislation permitting for compulsory retirement in collective agreements. It also examines a similar British challenge, due in the ECJ sometime in 2009, and comparative case law from the United States, where federal age discrimination law has been in place since 1967. It concludes that the decision in Palacios de la Villa, rejecting the challenge: (1) departed from established ECJ jurisprudence and signalled a new deference to derogation in the field of age discrimination; (2) is out of line with US law; and (3) in any case should not threaten the British challenge. However, it also concludes that lawmakers in Europe and the US generally consider age discrimination to be a lesser wrong than discrimination on other grounds.