What Implications for the ‘European Social Model’?
Edited by Marie-Ange Moreau
Chapter 9: The Reasonableness Principle in the European Court of Justice Age Discrimination Cases
Piera Loi INTRODUCTION In this chapter we will analyse the reasonableness principle in age discrimination cases in the light of the principles of the European Directive 2000/78/CE and the ECJ case law, which undoubtedly represent a new era and an innovative step in European discrimination law. As in many European law systems (before the adoption of the Council Directive 2000/78/EC) age, unlike sex or race, was not expressly defined as a discriminating factor. Besides that, the previous anti-discrimination legislation was structured by way of identifying a discriminating factor and the consequent obligation of removing this factor from the decisionmaking process (Swift, 2006, 228), whereas the discriminating factor is also capable of identifying a minority group to be protected. The innovative feature of the anti-discrimination law complying with the Directive 2000/78/EC relies on the fact that some discriminating factors like age, since they represent a quality common to all, do not identify a minority group that should be protected (Fredman and Spencer, 2000, 37), especially in the case of age discrimination at work (Sargeant, 2006, 79) and that the decision-making process which refers to them is apparently objective. What is required by the Directive 2000/78/EC is then to verify if the decision-making criteria that appear objective are in actual fact agerelated and the criteria have to be removed only if they are used for purposes which are illegitimate or if the consequences are disproportionate. The aim of this chapter is to ascertain the role and functions of the reasonableness principle in...
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