Equal treatment in employment and occupation

That provision must be regarded as going beyond what is necessary to achieve the intended aims. Why? Because said provision does not allow any derogation from the upper age limit laid down therein, even where it is impossible to fill several positions with younger candidates. This evaluation forms part of the broader legal framework EU governing equal treatment.

DIFFERENCES OF TREATMENT

CJEU stated that Article 6(1) of Directive 2000/78 provides that differences of treatment on grounds of age are not to constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives.
German legislation aims to ensure the continued exercise of the profession of notary for a sufficiently long period before retirement in order to:

• have an efficient and independent judicial administration;
• ensure a high-quality notarial profession;
• ensure a balanced age structure in order to facilitate natural turnover in the profession of notary.

THE FINAL VERDICT

In light of the above, the Court has already held, in essence, that such aims may be regarded as a legitimate aim within the meaning of Article 6(1) of Directive 2000/78 [see, to that effect, judgment of 3 June 2021, Ministero della Giustizia (Notaries), C 914/19, EU:C:2021:430, paragraph 33, 34, 40, 36 and 37].
The Court further held that the encouragement of recruitment and access to a profession undoubtedly constitutes a legitimate aim of Member States’ social or employment policy, in particular where the promotion of access of young people to that profession is involved.

Specifically, it concerns a lawyer, but the law also applies to those who wish to apply for a profession in the shipping industry, where equal treatment employment principles are equally relevant.

The European Court of Justice, with the ruling dated 17 October 2024, in Case C-408/2023, recently stated that: “Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, read in the light of Article 21 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which lays down an upper age limit of 60 years for the first appointment to a position of lawyer commissioned as notary, provided that that legislation pursues a legitimate employment and labour market policy objective and that, in the relevant legislative context and in the light of all the situations to which it applies, that legislation is appropriate and necessary for the achievement of that objective”.

This ruling represents an important age discrimination case in the EU.

THE LAWYER’S APPLICATION

The aforementioned pronunciation has its origins in the request for a preliminary ruling that has been made in proceedings between Rechtsanwältin und Notarin and the Präsidentin des Oberlandesgerichts Hamm (President of the Higher Regional Court of Hamm, Germany).
The reason was that the latter rejected the application of a lawyer in the main proceedings for the position of lawyer commissioned as notary.

First of all, it should be noted that the purpose of Directive 2000/78/CE is combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, forming a central part of antidiscrimination law, with a view to putting into effect in the Member States the principle of equal treatment and avoiding direct or indirect discrimination, as regards both the public and private sectors.

THE BEGINNING OF THE LEGAL AFFAIR

Based on the above, the legal affair begins from the appeal filed by a lawyer who applied for the position of lawyer commissioned as notary in the district of the Amtsgericht (Local Court, Germany) (‘local court district’) in which she had been practising as a lawyer for more than 3 years.

That application was rejected because she was over 60 years of age on the expiry of the deadline for applications.
Paragraph 5 of the Bundesnotarordnung (Federal Code for Notaries), in fact, provides: “(1) Only individuals who are personally and professionally capable of exercising the functions of notary may be appointed. (4) Whoever has reached the age of 60 years on the expiry of the deadline for applications for a notarial position cannot be appointed as notary for the first time”.

THE COURT

The applicant in the main proceedings brought an action against that rejection decision before the Oberlandesgericht Köln (Higher Regional Court, Cologne, Germany), which is the referring court.

This Court decided to stay the proceedings and to refer the question to the Court of Justice for a preliminary ruling, asking if – while taking the view that the national provision at issue in the main proceedings [namely Paragraph 5(4) of the BNotO, pursues legitimate aims within the meaning of Article 6 of Directive 2000/78] – that provision must be regarded as going beyond what is necessary to achieve the intended aims.

Why? Because said proviosion does not allow any derogation from the upper age limit laid down therein, even where it is impossible to fill several positions with younger candidates.

DIFFERENCES OF TREATMENT

CJEU stated that Article 6(1) of Directive 2000/78 provides that differences of treatment on grounds of age are not to constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives.German legislation aims to ensure the continued exercise of the profession of notary for a sufficiently long period before retirement in order to:

•have an efficient and independent judicial administration;

•ensure a high-quality notarial profession;

•ensure a balanced age structure in order to facilitate natural turnover in the profession of notary.

THE FINAL VERDICT

In light of the above, the Court has already held, in essence, that such aims may be regarded as a legitimate aim within the meaning of Article 6(1) of Directive 2000/78 [see, to that effect, judgment of 3 June 2021, Ministero della Giustizia (Notaries), C‑914/19, EU:C:2021:430, paragraph 33, 34, 40, 36 and 37].

The Court further held that the encouragement of recruitment and access to a profession undoubtedly constitutes a legitimate aim of Member States’ social or employment policy, in particular where the promotion of access of young people to that profession is involved.