Ousted Lufthansa Pilot Loses Challenge to EU Age Limit

(CN) – A pilot whose job Lufthansa terminated when he turned 65 failed Wednesday to sway the European Court of Justice that the airline discriminated against him. 

Werner Fries brought the underlying case in Germany, where Lufthansa CityLine is based, after the airline deemed him unable to work after Oct. 31, 2013. A 27-year employee of the airline, Fries had turned 65 years old earlier that month.

Though his contract with Lufthansa was not set to expire until Dec. 31 that year — when Fries reached the ordinary age of retirement and could start collecting his pension — Lufthansa determined that he was no longer to work as a commercial pilot for those two months under EU law.

Even at 65, however, Fries still possessed his license to operate commercial aircraft, as well as various certifications to train pilots, conduct licensing examinations in aircraft, and conduct examinations of fellow examiners. 

With the airline denying that it should have paid Fries for the months of November and December 2013, Germany’s federal labor court stayed the case to get clarification on EU law from the Court of Justice.

The Luxembourg-based court sided Wednesday with Lufthansa.

“Prohibiting holders of a pilot’s license who have attained the age of 65 from acting as pilots of aircraft engaged in commercial air transport is an appropriate means of maintaining an adequate level of civil aviation safety in Europe,” the opinion states.

The EU’s age limit of 65 is not applicable to noncommercial pilots, but the court did not deem this distinction notable.

“By imposing such an age limit in the sole context of commercial air transport, the EU legislature took into consideration the differences between that type of transport and non-commercial air transport, namely, inter alia, the greater technical complexity of aircraft used in commercial air transport and the higher number of persons concerned in that field, with such differences justifying different rules being imposed in order to ensure air traffic safety for both types of transport,” the ruling states.

Fries likewise failed to sway the court that no medical data documents an increased danger linked to employing pilots older than 65 in commercial air transport.

Citing the the EU legislature’s broad discretion when it comes to complex medical questions, the court said lawmakers are entitled to “take protective measures without having to wait until the reality and the seriousness of those risks become fully apparent.”

“Given the close link between civil aviation safety and the protection of crew members, passengers and the residents of areas under flight paths, when the EU legislature decides to fix an age limit such as that at issue in the present case, it is open to it, faced with scientific uncertainties, to give priority to measures of which it is certain that they guarantee a high level of safety, provided that they are based on objective data,” the opinion states.

The court also balked at the argument that, in lieu of an age limit, the EU legislature should individually examine “the physical and mental capacity of every holder of a pilot’s license over the age of 65.”

As for the limit of 65, the court deemed this age “sufficiently high.”

Noting that the age limit does not make these workers unemployable, the court pointed out that there is nothing in the regulation that excludes holders of a pilot’s license “from all activity in the field of air transport” once they turn 65.

The law merely prohibits those license holders from acting as pilots in the commercial air transport sector.

Nothing about the law prohibits license air pilots older than 65 from acting as a pilot in ferry flights, operated by an air carrier that does not carry passengers, cargo or mail, nor from working as an instructor or examiner on board an aircraft, without being part of the flight crew.

It is worth noting as well, the court found, that “the freedom to pursue a trade or profession, like the right to property, is not an absolute right.”

“Consequently, restrictions may be imposed on the exercise of those freedoms, provided that those restrictions in fact correspond to objectives of general interest pursued by the European Union and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights,” the ruling continues.

A spokeswoman for Lufthansa has not returned an email seeking comment.

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