Advocate General's Opinion in Heyday—Compulsory Retirement Age Can Be Justified

The Advocate General has delivered his Opinion in The Incorporated Trustees of the National Council for Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform, Case C-388/07, more commonly known as the Heyday Challenge. The key issue in this case is whether the UK Government can justify a compulsory retirement age of 65.

The Advocate General's view in relation to the interpretation of the Framework Directive and the level of specificity with which it should be transposed into national law is that:

• National rules on retirement are subject to age discrimination law.
• There is no need for national law to list the types of treatment which may amount to justification.
• No significant difference exists between the test for justification in respect of direct and indirect discrimination.

Taking into account the above, the Advocate General is of the view that having a national rule enabling employers to dismiss employees aged 65 or over for retirement can in principle be justified. The European Court of Justice is due to give judgment in early 2009 and if it follows the Advocate General's Opinion, it is likely that the High Court in the United Kingdom will find that the compulsory retirement provision is objectively justified.