Pilots brought age discrimination claims, which failed in the first instance and were ultimately referred to the ECJ.(TLT LLP)

ECJ holds that forcing pilots to retire at 60 was not objectively justified

In our e-source update in August 2010 we reported on the phasing out of compulsory retirement ages which came into force on 1 April 2011.  As age discrimination legislation in the UK stems from the European Equal Treatment Framework Directive (2000/78/EC) other EU countries have similar provisions regarding the justification of age discrimination.

Accordingly we have reported key ECJ decisions concerning age discrimination.

We now report on a recent case decided under German Law that considered whether forcing airline pilots to retire at age 60 was objectively justified or not.

Facts

Mr Prigge and two colleagues were employed as pilots by Lufthansa. On attaining age 60, their employment was terminated without notice in accordance with the applicable collective agreement, which was recognised by German law. This compulsory retirement provision was included in the collective agreement for the purpose of guaranteeing air safety.

The pilots brought age discrimination claims, which failed in the first instance and were ultimately referred to the ECJ.

Decision

The ECJ held that the compulsory retirement age of 60 was contrary to the age discrimination provisions in the Directive.

The Directive allows discrimination in certain circumstances where there is a legitimate aim achieved in a proportionate manner.

The ECJ considered that the aim of the measure was a legitimate aim, namely, air traffic safety. However the blanket ban on pilots flying after age 60 was a disproportionate means of achieving that aim and accordingly the treatment was discriminatory.

The main reason for the decision was that national and international legislation did not impose a total prohibition on pilots flying between ages 60 and 65, but merely imposed conditions. Accordingly, a complete ban was discriminatory.

Comment

This is an interesting case as, up until now, the ECJ has tended to support retirement ages contained in collective agreements. However, as this particular collective agreement contained more restrictive measures than those already provided for in national and international legislation, it is unsurprising that the ECJ rejected Lufthunsa’s argument that the more restrictive measures were necessary or proportionate.

Prigge and others v Deutsche Lufthansa AG C-447/09

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UK retailers to re-visit advertising campaigns following ECJ ruling (TLT LLP)

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UK retailers to re-visit advertising campaigns following ECJ ruling

Updated June 2011

Following a recent ruling by the European Court of Justice (ECJ) UK retailers and advertising agencies will be required to provide customers with more information regarding their advertised services or products. Failure to do so could result in action being taken by a number of regulatory bodies such as local Trading Standards, the Advertising Standards Agency and even the OFT.

Background

The case involved action by the Swedish consumer ombudsman against Ving Sverige AB, a Swedish travel agency, who offered trips to New York “from SEK 7,820” in a newspaper advertisement. The ombudsman contended that the advertisement was misleading to consumers as it omitted information required to be provided to consumers when making an ‘invitation to purchase’, such as information regarding flight times that would affect the price. Ving Sverige AB argued that the advertisement did not constitute an ‘invitation to purchase’, and therefore was not required to specify the following information.

What information is required?

The Unfair Commercial Practices Directive requires the following information be provided when making an ‘invitation to purchase’ unless it is apparent from the circumstances:

The main characteristics of the product e.g. name, size, material, make, model, colour, what the product is and what it does
The geographical address and identity of the trader
The price inclusive of taxes (including all additional charges that may be payable i.e. freight, delivery or postal charges)
Arrangements for payment, delivery, performance
Any complaints handling policy
The existence of any withdrawal or cancellation rights.

What is an ‘invitation to purchase’?

The ECJ held that an ‘invitation to purchase’ exists as soon as the product information and price advertised is sufficient for a consumer to make a decision whether or not to purchase the product. Notably:

There does not need to be an actual opportunity (e.g. order form), mechanism (e.g. direct reply to a text message) or means to purchase the product/service.
It does not matter if the advert is not made at the same time or in the same place as an opportunity to purchase the product/service (e.g. advertisements outside of retail stores).
Only an entry-level price is required (e.g. ‘From £30’)
A verbal or visual reference to a product/service is sufficient (e.g. photographs and radio advertisement)

What impact will this have upon UK retailers?

The Unfair Commercial Practices Directive is implemented in the UK by the Consumer Protection from Unfair Trading Regulations (CPRs). The UK view had previously been that an ‘invitation to purchase’ would only arise if it gave a consumer an actual means or opportunity to make a purchase. Current guidance on the CPRs gives examples of restaurant menus, newspaper order forms, price tags on products in a shop and interactive TV adverts through which direct orders can be placed. The ECJ’s ruling has now removed this element. As a result, most adverts are likely to fall within the definition of an ‘invitation to purchase’.

What should retailers and advertisers do?

Retailers and advertisers should therefore ensure their adverts contain the information listed above, and any additional information, to avoid misleading consumers. However, where this is not possible, for example due to space constraints, retailers can refer consumers to their website for full details.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2011. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

© TLT LLP 2011. TLT LLP is a limited liability partnership registered in England and Wales number OC 308658.