March 28, 2023
By Elaine Dewhurst
There is currently a gender pension gap of approximately 26% in the EU27 caused by a variety of inequalities but certainly compounded by the fragmented life course of many women. This raises distinct questions around discrimination on grounds of gender and age, and the intersectional burden of both of these grounds in the context of older women. The UN Advocacy Brief on Older Women affirms that ‘[g]ender stereotypes and sexist attitudes do not vanish with age but rather are compounded with assumptions about later life, such as frailty, dependence, lack of ability, and passivity’. Despite protections at a regional level, both from the EU and the ECHR, there are still many national policies which are perpetuating discrimination against older women which only exacerbates these inequalities and their associated social and economic disadvantages. One of these national policies, the mandatory retirement of female civil servants in Romania almost 4 years before their male counterparts, was challenged in the case of Moraru and Marin v. Romania. The European Court of Human Rights (ECtHR), in its recent decision in December 2022, held that this policy amounted sex discrimination under Article 1 of Protocol 12 of the Convention. The decision is not in itself surprising. However, the decision does expose gaps in the anti-discrimination framework within the European Union namely a recognition gap with respect to age discrimination and a legislative gap with respect to intersectional discrimination.
The case involved two female Romanian nationals, Ms Liliana Moraru and Ms Doina Marin, who were both employed as civil servants in Romania. Their contracts of employment contained mandatory retirement provisions which required them to retire at 60.5/61 years respectively, at which point they would have acquired the minimum contributions required for their pension. Men working in the civil service did not have to retire until 65 years. Despite requesting various extensions to their contracts, both applicants were required to retire when they reached their respective retirement ages. At a national level, their claims with respect to sex discrimination were dismissed. The applicants sought relief before the European Court of Human Rights arguing a breach of the general prohibition of discrimination in Article 1 of Protocol 12 of the Convention. The women argued that males in their position would have been able to work without any hindrance for a further 4 years and that this constituted direct discrimination on the basis of sex which was not justifiable.
In a unanimous decision, the Court held that the automatic termination of the employment contract did constitute sex discrimination which was not objectively justifiable or necessary in the circumstances.
Basing its analysis solely on Article 1 of Protocol 12, the Court first turned to consideration of the question as to whether there was a difference in treatment on grounds of sex in this case. The court reiterated previously determined principles to the effect that a difference in retirement age between men and women constitutes a difference in treatment on grounds of sex (Stec and Others v. United Kingdom). In this case, there was a clear distinction between men and women with respect to retirement age and therefore a difference in treatment on grounds of sex was easily established.
Secondly, the Court moved to analyse whether this difference in treatment could be objectively justified. The Court once again drew on existing principles with respect to the margin of appreciation granted to states in such circumstances in assessing whether, and to what extent, a difference in treatment might be justified. The Romanian government had argued that they had the benefit of a margin of appreciation as regards setting the rhythm for unifying the retirement age for men and women and for different categories of workers, public servants included. Previous decisions indicated that the Court grants a wide margin of appreciation to a Member State when it comes to general measures of economic or social strategy because national authorities are more suitably placed to determine what is in the public interest on questions of a social and economic nature. Such policy choices are generally respected unless they are manifestly without reasonable foundation.
However, even a wide margin of appreciation could not justify the adoption of laws or practices that might violate the prohibition of discrimination (Savickis and Others v. Latvia). Where these principles come into conflict, the Court must carry out a balancing exercise between the protection against discrimination and the Member State’s broad discretion in matters of social and economic policy. In determining where the scales might fall, the Court reiterated the importance of the advancement of gender equality and the fact that the Court has previously determined that differences based exclusively on sex require ‘very weighty reasons’ (para. 106) by way of justification. The Court noted that references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex. Applying these principles to the case before it, the Court distinguished between reaching a pension age (which could be set at different ages as a measure designed to correct factual inequalities) and the automatic termination of employment on reaching pension age, to which different considerations applied. The institution and maintenance of a blanket rule on mandatory retirement at a lower age for women perpetuated ‘a stereotypical view of gender roles and treats women as a homogenous group deprived of agency, one whose personal situations or desires in terms of professional life and career development as well as their alignment with those of men are completely disregarded’ (para. 118). The lack of consistency in the law was also a determining factor. The Court noted that the situation had now been remedied in Romania after the Constitutional Court had found that such automatic termination constituted unjustifiable sex discrimination (although too late for the applicants in this case).
In light of this, the Court concluded that the automatic termination of their employment on reaching retirement age with no option to continue to work constituted discrimination based on sex which was not objectively justifiable or necessary in the circumstances.
At first glance this is a simple case of direct sex discrimination and, with this in mind, the decision of the ECtHR is entirely predictable: there is a clear difference of treatment on grounds of sex (mandatorily retiring women earlier than men), there is no legitimate justification, and the Court reiterated that in cases of sex discrimination very strict scrutiny will be applied with a very narrow margin of appreciation granted to Member States. It would have been unusual if the case had been decided in any other way. However, this does not mean it is not an important decision in the gender equality context. It is noteworthy for its strong reinforcement of agency and the rejection of stereotypes which threaten to undo or remove such agency. The case is certainly a powerful reminder of the important place of gender equality in the case law of the ECtHR and in the Council of Europe more generally.
However, this case also raises another issue outside of the gender equality context: whether this was, in fact, also an age discrimination case. There is clearly an age discrimination element in the case which appears to have escaped consideration at both a national and regional level (although this author is not privy to the pleadings at a national level). The singular treatment of discrimination grounds by both the CJEU and the ECtHR has lead in recent cases to a demotion of age discrimination claims in favour of more traditional grounds of discrimination, such as sex or race (see, for example, Carvalho v. Portugal). The exceptional treatment granted to age by EU legislation (Directive 2000/78) and by the ECtHR (where age is not treated as a suspect category) means that age has become legally differentiated from other grounds of discrimination and is potentially viewed as a less serious and yet more complicated claim. Thus, faced with a claim involving both sex discrimination and age discrimination, it is more likely (and understandable) that the affected parties, their representatives and the courts will rely on the more certain claim. The impact of this on the applicants, however, is that certain aspects of their claim are ignored and go uncompensated. The discrimination on grounds of age may also remain.
If the applicants had chosen the age route for their claim, is it likely that it would have been successful? If an age claim had been made, it would have brought Directive 2000/78, the equal treatment directive, which prohibits discrimination on grounds of age, into the discussion at a national level. Mandatory retirement has, in a series of cases beginning with Palacios de la Villa, been held to fall within the scope of the Directive. Mandatory retirement is also considered to constitute a difference in treatment based on age, in this case at the age of 60.5 or 61 years. The legal treatment of the age ground differs in the Directive with respect to direct discrimination as this can be justified in the context of age (Article 6) as long as there is a legitimate objective and the measure is proportionate in the sense of being suitable and necessary to achieve that objective. Similar considerations are taken by the ECtHR. The main objective justification which might be raised by the Government in this case may be a social one and relate to the fragmented working lives of women and the introduction of an earlier pension so as to compensate them for this fragmentation. This justification was used in the litigation before the Romanian Constitutional Court where challenges to these laws were also made. There is some doubt whether this would be accepted as a legitimate objective given that this objective is mainly for the purpose of setting a pension age which should be distinguishable from the mandatory retirement age. However, even if it were to be considered legitimate, the question then arises as to whether terminating the employment of these women at this particular age is suitable and necessary to achieve this objective.
In assessing proportionality, the CJEU has been known to examine four main factors: (a) the situation in the specific economic sector under analysis, (b) the availability of a reasonable pension, (c) the impact of the measure on the right to work and earn a livelihood and (d) whether there has been some form of consent or agreement to the mandatory retirement measure in individual employment contracts. It is arguable that there is no real need for such a measure in the specific economic sector here (civil service) especially as men are not subjected to the same age limit but are expected to stay in employment for at least a further 4 years. While the retirement age marries with the availability of a pension, given the fragmented working lives of women, the question which may then arise is whether this pension is reasonable or sufficient. The right to work is effectively extinguished by the mandatory retirement but courts at a national and regional level have also considered other factors such as whether this will constitute a permanent withdrawal from the labour market, whether the termination of employment has removed the possibility of achieving the highest rank of the profession and whether there is a transferability of skills. Where the withdrawal from the labour market is permanent, where the possibility of reaching the highest rank of the profession is cut short or where skills are not transferable outside of this sector, the courts have been keen to uphold the right to work and find that the mandatory retirement policies are disproportionate as a result. In this case it is unclear whether the applicants could have transferred their skills into the private sector, however the earlier retirement date could have impacted their ability to reach the highest rank of their profession. In terms of consent to the arrangement, it is clear that the applicants were aware of this retirement age during their employment although there is an inequality in bargaining power here given the nature of their employment in the civil service. Other factors which might point to a lack of proportionality include the lack of flexibility here portrayed by the refusal to consider any extension to the employment contracts, imposing a blanket policy and the lack of consistency in approach to other areas of the public service where differences in retirement age have been eliminated. Arguably given the combination of these factors, the measure would be considered to be disproportionate.
Similar reasoning would possibly also be applied by the ECtHR. The margin of appreciation, however, would be wider in the context of an age discrimination claim. Age is not considered to be a suspect ground and general measures of economic or social policy (as this measure may be considered to be) would possibly fall within this wider margin of appreciation. (Khamtokhu v. Russia). However, the ECtHR has also indicated that ‘traditions, general assumptions[,] or prevailing social attitudes‘ (Khamtokhu v. Russia) would not in themselves be sufficient to justify a difference in treatment, which given the rationale for the introduction of such measures in Romania may be particularly relevant here.
The possibility of a successful age discrimination claim here was high. However, more significantly, it would also have forced the national courts to engage more meaningfully with EU law, given that the application of Directive 2000/78 could not be sensibly denied. The ECtHR here appeared to rebuke the national courts for failing to explain how the decisions on the sex discrimination claim were compatible with EU or ECHR law or to ‘engage meaningfully with those judgments of the CJEU and to examine their ramifications highlighted by the applicants’ (para. 119). An age discrimination claim may have forced more serious engagement.
There is also the distinct possibility that this is a case of intersectional discrimination on the basis of sex and age. The applicants in this case were facing termination of employment as a result of a combination of their age and sex because the pension age (linked to their retirement age) was set to reflect the social situation of their particular sex. However, there is limited national and no regional protection against intersectional discrimination and the CJEU has confirmed that intersectional discrimination would not be recognised unless, and until, there was a specific legislative mandate (Parris). However, a failure to address this intersectional element means that essentially discrimination law is not reflecting the reality of real life where discrimination arises as a result of compounding factors and not necessarily on singular grounds. This can lead to precariousness and disadvantage for groups who cannot sufficiently hang their discrimination claim on one particular ground and allows certain forms of discrimination to flourish unchallenged.
This is a case which arguably should never have reached the ECtHR. More meaningful engagement with EU legislation and case law by the Romanian national courts and a move away from singularity in arguing discrimination law cases may have ensured swifter access to justice for the applicants at a national level. The sex discrimination route was clearly the strongest argument in this case but the added age and intersectional elements should not have been overlooked given that the failure to recognise these forms of discrimination can compound the disadvantage of older women. It is not until these forms of discrimination are adequately recognised that they can be effectively tackled.