Compulsory retiring age/the Danish Discriminatory Practices Act

Case no. 183/2011
Judgment delivered on 27 August 2013.

FTF/TDC management association (LTD) acting for A
vs.
The Confederation of Danish Industry (DI) acting for TDC A/S

The collective agreement between the TDC management association (LTD) and TDC A/S contains a provision that stipulates that unless otherwise agreed, the individual employee retires at the end of the month in which the said employee turns 67. A is covered by this compulsory retirement age provision.

The main issue during the case was whether the compulsory retiring age provision is invalid under s. 2(1), cf. s. 5 a(1) of the Danish Discriminatory Practices Act (forskelsbehandlingsloven) or whether this age limit can be upheld under s. 5 a(3) of the said act.

The Supreme Court stated that the main purpose of imposing a compulsory retirement age of 67 years must be deemed to be to obtain a lower average age and, hence, a more expedient age distribution and to the extent possible to obtain the required workforce reduction through age-related retirement instead of dismissals.

In accordance with the European Court of Justice's interpretation of Article 6(1) of Directive 2000/78/EC, the Supreme Court agreed that such a condition must be deemed to be objectively and reasonably justified by a legitimate aim. The Supreme Court also agreed that a retirement age of 67 years must be deemed to be an appropriate and necessary means to fulfil the stated purposes. Accordingly, the Supreme Court held that the age limit may be upheld pursuant to s. 5 a(3) of the Danish Discriminatory Practices Act.

Consequently, A's claim for compensation and allowance for unemployment after he turns 67 could not be upheld.

The High Court had reached the same conclusion.