The ripple effect: A critical analysis of the successful development of the material scope of Directive 2000/78/EC in the context of age

Abstract

This article analyses the material scope of Directive 2000/78 as it has been interpreted by the Court of Justice of the European Union (CJEU). From the outset, a very broad interpretation of the material scope provisions in Article 3 has been promulgated to ensure that the equality purposes of the Directive are met. The article analyses three particular areas of concern which have arisen in the age context, namely: access to employment, occupation and vocational training; employment conditions, including pay; and termination of employment and occupation. The article comes to three main conclusions in this regard. Firstly, when access is restricted, the CJEU will invariably find such a measure to fall within the scope of the Directive. Secondly, where conditions of employment, including in this context pay, are impacted in some way, the CJEU has been willing to stretch the boundaries of the scope of the Directive through the use of a contractual nexus approach. There are some red lines that the CJEU has been unwilling to cross, but these are rare. Finally, in the termination of employment, including dismissal and retirement, the CJEU has applied an access/exercise approach so as to adeptly include such measures within the scope of the Directive, despite textual challenges. The article then goes on to apply these principles set out by the CJEU in the context of some recent preliminary references. This application also provides support for the proposition that the material scope is a very broad one which can encompass a range of measures within its terms, and that the situations in which some measures fall outside the scope of the Directive are very limited.