In Fuchs and another v Land Hessen the European Court of Justice held that German legislation requiring civil servants to retire at 65 was an appropriate and necessary means of encouraging the recruitment and promotion of young people and avoiding performance disputes with older workers.

Two German civil servants complained that German law requiring them to retire at 65 was discriminatory. Upon referral to the ECJ, the Court ruled that there was no breach of the EU Equal Treatment Framework Directive if, as the German Government had argued, the rule was an appropriate and necessary means of achieving the legitimate aims of efficient HR planning, encouraging the recruitment and promotion of young people and avoiding disputes relating to employees’ ability to perform their duties beyond the age of 65.

The ECJ’s acceptance that a wish not to go through, what can be, the uncomfortable process of evaluating employees’ fitness to work on a case-by-case basis could, in itself, provide justification for a fixed retirement age for everyone, is surprising. This seems to run counter to the whole ethos of anti-discrimination legislation, which is to ensure that judgments are made about employees as individuals and not based on stereotypical assumptions that performance decreases at a fixed age. However, to pass the test of ‘proportionality’ it is still up to the employer to demonstrate that there are reasonable grounds that show that the policy actually does actually avoid disputes about performance at age 65 and over.