Germany: courts disagree on default retirement

General interest vs. equal treatment.  It was the first instance ruling at the Hamburg labor court (case No. 7 AZR 116/07) on the case of an employee at the Hamburger Hochbahn company (running bus and metro lines in Hamburg) that revived the controversy on the relation between default retirement age and equal treatment.  Employed by the company since 1981 for the maintenance of bus stops, the plaintiff turned 65 last May.  On May 31, 2010, Hamburger Hochbahn notified him that he had to retire, in accordance with the framework agreement signed between Verdi and the union of public transport companies of the city.  The agreement provides that labor contracts are automatically terminated when employees turn 65, unless the employer and the employee expressly agreed otherwise… which wasn’t the case.  The plaintiff wanted and was physically able to keep on working and brought the case to the Hamburg labor court, considering that he was the victim of age-related discrimination.  Taking into consideration, notably, a ruling by the ECJ of 2009 (Case C – 388/07, see our dispatch No. 090248), the judges finally considered that, in this case, “the definition of an inflexible provision of default retirement in a collective agreement” represented a form of discrimination that could nevertheless be tolerated if the employer justified his decision within the framework of a policy of struggle against unemployment and job creation.  Since the plaintiff didn’t have any health problems preventing him from continuing his activity, and since the company didn’t plan on filling his position with a younger employee, the judges considered that there was, in fact, discrimination.  The plaintiff went back to work on September 1, 2010 but the company is probably going to appeal.