Abstract
This chapter aims to capture this moment in time for seemingly distinct bodies of law namely, elder rights, age discrimination and human rights, in the European Union (EU). In some jurisdictions, perhaps these fields would not seem so alien to one another but in the English speaking Member States of the European Union, the United Kingdom and Ireland, they do. Standing back and appraising these fields of law, reveals that discrimination and human rights sometimes inhabit the same human rights instrument and, discrimination, human rights and elder rights sometimes inhabit the same fundamental rights instruments and social charters. Standing back also enables comparisons to be made between avenues to justice for age discrimination victims and those seeking to assert human rights for older persons. In the EU, age discrimination, human rights and elder rights are often separate and sometimes together, depending on their source and function. This need not be such a daunting idea. There is also change afoot that may close some normative and implementation gaps and build more bridges between these fields of law. Once adopted, EU age discrimination law beyond employment can help build an extra bridge between discrimination law on the one hand and elder rights on the other. Indirectly, it promises to make a serious contribution to elder law (as distinct from elder rights) which strictly speaking falls within the remit of the individual EU Member States at this point in time.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Morgan (2009) (hereafter, Theories on Law and Ageing) at p. 153.
- 2.
Morgan is not alone, M.B.Kapp identifies age discrimination as a legal field affecting elders, for future attention, “Those areas most ripe for future TJ analyses of effectiveness for intended beneficiaries include: regulations prohibiting age-based discrimination in employment, housing, insurance, and other matters…” in Theories on Law and Ageing, supra at pp. 42–43. Note TJ stands for therapeutic jurisprudence.
- 3.
Morgan (2009), supra at p. 145.
- 4.
Governments too may need elders to work to postpone paying their state pensions. The English Government has recently proposed increasing the retirement age to 66 years by 2020.
- 5.
Dagmar Schiek explores reasons for banning age discrimination in employment in Schiek (2011), pp. 777–799 at pp. 780–784.
- 6.
European Commission, Non-Discrimination and Equal Opportunities for All—a framework Strategy, COM(2005) 244 final, p. 1.
- 7.
European Commission, “Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation”, COM(2008) 426 final.
- 8.
They are Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, and the United Kingdom.
- 9.
This was made possible by the Lisbon Treaty which came into force in 2009.
- 10.
Article 6.1, Treaty of the European Union.
- 11.
- 12.
Article 6.2 TEU provides that the EU shall accede to the ECHR and Protocol 14 to the ECHR, which entered into force on 1 June 2010, provides for accession by the EU. The Council of Europe and the EU are now in the process of drafting an accession agreement.
- 13.
See for example, case no. 24833/94, Matthews v UK, judgment of the European Court of Human Rights, 18 February 1999.
- 14.
Here elder law refers to domestic elder law and is distinguished from private international law, for example the Convention on the International Protection of Adults. EU Member States are generally free to sign and ratify international conventions in their own right.
- 15.
Parliamentary and Health Service Ombudsman (2011).
- 16.
- 17.
- 18.
This refers to elder law, elder rights, age discrimination and human rights.
- 19.
From Statement by the UN High Commissioner for human Rights, Navi Pillay, to mark the International Day of Older Persons, 1 October 2010, available at http://www.globalaging.org/agingwatch/Articles/unhumanright.htm
- 20.
On a very rare occasion, elders may benefit from human rights that fall under the category of civil or political rights, see for example, Farbtuhs v Latvia, no. 4672/02, ECtHR Judgment 2 December 2004. A violation of Article 3 ECHR was found where an 86-year-old applicant in poor health had been sentenced for his part in detentions ordered by Stalin in 1940–1941. Mr Farbtuhs claimed his imprisonment would amount to inhuman and degrading treatment on grounds of his age and health.
- 21.
See, Fundamental Rights Agency of the European Union and European Court of Human Rights (2011) at p. 102, where ECtHR, Schwizgebel v. Switzerland (No. 25762/07), 10 June 2010 is discussed. No violation of Article 14 ECHR was ultimately found in that case.
- 22.
Dr Robert Butler coined the term “ageism” in 1968, to describe the prejudices and stereotypes encountered by older people, long after the ECHR was drafted.
- 23.
- 24.
Wintemute (2004)at pp. 370, 372, 373.
- 25.
de Schutter (2005b) at p.21.
- 26.
Article 34 ECHR.
- 27.
Article 35.1. However, the ECtHR does not act as a court of appeal from national courts. See European Court of Human Rights, The ECHR in 50 Questions FAQ (Provisional Edition, December 2010) Available at www.ECHR.coe.int Point, 20, p. 7 and point 26, p. 9.
- 28.
Article 38, ECHR.
- 29.
The ECHR in 50 Questions op cit., point 38, p. 10.
- 30.
Article 41, ECHR.
- 31.
It is worth noting that the State parties to the ECHR undertake “to abide by the final judgment of the Court in any case to which they are parties”, Article 46.1.
- 32.
The Court also has power to grant interim measures where the applicant is at serious risk of physical danger, see The ECHR in 50 Questions op cit point 33, p.10 and finally, the Court can also give an advisory opinion on a question of interpretation of the ECHR, Article 32.2 ECHR and Article 47, Protocol 11 to the ECHR.
- 33.
Point 41, p. 11.
- 34.
[2007] UKHL 27, [2008] 1 A.C. 95. For a discussion of this case see, among others, Palmer (2008) pp. 141–152.
- 35.
S. 6(3)(b).
- 36.
See para. 47 of Baroness Hale’s dissenting judgment, in the YL Case supra. The human right in view was Article 8 the right to respect for private and family life.
- 37.
Those of Baronness Hale and Lord Bingham.
- 38.
See for example, Robins (2007). See also Joint Committee on Human Rights—Eighth Report, Session 2007–2008, Legislative Scrutiny: Health and Social Care Bill, House of Lords Publications on the Internet, House of Commons Publications on the Internet, at paras. 1.6–1.18.
- 39.
Eighteenth Report of Session 2006–2007, HL 156-I/HC 378-I at para. 84.
- 40.
S. 149 (1) and (3)-(6).
- 41.
S. 149(2).
- 42.
S.150(5).
- 43.
Para. 59.
- 44.
Para. 64.
- 45.
Idem.
- 46.
By virtue of the Equality Act 2010, this also introduced a provision to deal with combined discrimination on dual characteristics in S. 14, the British government has decided not to take this provision forword.
- 47.
- 48.
See for example, Parliamentary and Health Service Ombudsman (2011).
- 49.
BBC News, Human rights law ‘fails elderly’, 2/08/2005.
- 50.
Referring to plans to extend the HRA to cover publicly funded users of private care homes, see, Thomson and Sylvester (2007).
- 51.
Human Rights Inquiry, Report of the Equality and Human Rights Commission, June 2009, see Chap. 3, ‘The Impact of Human Rights on Public Services’, in particular, available at http://www.equalityhumanrights.com/uploaded_files/hri_report.pdf.
- 52.
Ibid and at p. 142.
- 53.
Ibid at p. 143 and p. 145.
- 54.
At p. 149.
- 55.
A previous report delivered not long before this Inquiry found that a culture of respect for human rights had mostly failed to take root in public authorities in England, Scotland and Wales, see Donald et al. (2008).
- 56.
Article 6(1).
- 57.
Para. 33.
- 58.
See para. 29. The report is available at, www.humanrights.coe.int/Prot12/Protocol%2012%20and%20Exp%20Rep.htm#EXPLANATORYREPORT. Note also the discussion by Khaliq (2001) at p. 458.
- 59.
Opinion of the European Court of Human Rights on draft Protocol 12 to the European Convention on Human Rights, parliamentary Assembly Doc. 8608, 5 January 2000, paras. 3 and 4, available at http://www.assembly.coe.int/Mainf.asp?link=/Documents/WorkingDocs/Doc00/EDOC8608.htm.
- 60.
Paras. 32 and 33, Explanatory Report op cit.
- 61.
Explanatory Report Protocol No.12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, at paras. 24–26.
- 62.
Idem at paras. 27–28, note, it is understood that purely private matters would not be affected.
- 63.
At para. 22.
- 64.
At para. 19.
- 65.
Note Article 49 Treaty on European Union requires an applicant state to respect and promote a range of values set out in Article 2 thereof, including human rights.
- 66.
Not least that ‘"Rights set forth by law" may extend to obligations under other international human rights instruments to which the UK is a party”, Joint Committee on Human Rights Seventeenth Report, Session 2004/05, prepared 31/3/05 see at, www.publications.parliament.uk/pa/jt200405/jtselect/jtrights/99/9906.htm. This is curious given that it is referring to instruments which it has already signed. Presumably the UK was referring to clauses that it had not accepted within such instruments.
- 67.
When two people of Jewish and Roma origin complained that they could not stand for election, [GC] (Nos. 27996/06 and 34836/06), 22 December 2009.
- 68.
This contained two limbs: the first deals with equal pay between women and men in employment, the second guaranteed all nationals and foreigners legally resident or working in the territory that rights in the Charter shall apply regardless of seven named grounds of discrimination.
- 69.
Note as stated in the Preamble to the RESC.
- 70.
With a view to ensuring the effective exercise of the right of elderly persons to social protection, the Parties undertake to adopt or encourage, either directly or in co-operation with public or private organisations, appropriate measures designed in particular:
-
to enable elderly persons to remain full members of society for as long as possible, by means of:
-
a
adequate resources enabling them to lead a decent life and play an active part in public, social and cultural life;
-
b
provision of information about services and facilities available for elderly persons and their opportunities to make use of them;
-
a
-
to enable elderly persons to choose their life-style freely and to lead independent lives in their familiar surroundings for as long as they wish and are able, by means of:
-
a
provision of housing suited to their needs and their state of health or of adequate support for adapting their housing;
-
b
the health care and the services necessitated by their state;
-
a
-
to guarantee elderly persons living in institutions appropriate support, while respecting their privacy, and participation in decisions concerning living conditions in the institution.
-
- 71.
However, it seems clear from the text of Article 23 that it mainly refers to post-retirement elders.
- 72.
This is examined under Article 1(2) concerning non-discrimination in employment, see for example Council of Europe, European Committee of Social Rights European Social Charter (revised) Conclusions 2009, at p. 70.
- 73.
See Frequently Asked Questions, 2, available at http://www.coe.int/T/F/Droits_de_l’Homme/Cse/FAQ_eng.asp.
- 74.
On 10 May 2010, Montenegro’s ratification took effect and it became the thirtieth state to ratify the RESC.
- 75.
See paras. 122–123 Explanatory Report, available at http://conventions.coe.int/Treaty/en/Reports/Html/163.htm.
- 76.
This committee assesses the conformity of State parties with the ESC.
- 77.
See, EU Network of Independent Experts on Fundamental Rights, Report of the Situation of Fundamental Rights in the European Union and its Member States in 2005, at p. 205, available at http://cridho.cpdr.ucl.ac.be/documents/Download.Rep/Reports2005/CFR-CDFConclusions2006EN.pdf.
- 78.
Additional Protocol to the European Social Charter Providing for a System of Collective Complaints Strasbourg, 9.XI.1995.
- 79.
Idem, at Article 2 but only if the Member State recognises them for this purpose.
- 80.
Although the ECHR allows for both.
- 81.
Note remarks on the importance of the RESC, of Terry Davis, Secretary General Council of Europe, Address to the seminar, ‘The European Social Charter: the next 10 years’, Strasbourg, 3 May 2006. Seminar to mark the tenth anniversary of the European Social Charter (revised) remarks.
- 82.
Colm O’Cinneide, General Rapporteur, Strasbourg 3 May 2006 www.coe.int/t/dghl/monitoring/socialcharter/Presentation/10Anniversary/OCinneadeGeneralReport10Anniv_en.asp.
- 83.
Formally known as, the Treaty on the Functioning of the European Union, signed at Lisbon on 13 December 2007 and entered into force on 1 December 2009, OJ [2007] C 306 Vol. 50 17 December 2007, also available at http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2007:306:SOM:EN:HTML.
- 84.
The new version of the Charter was proclaimed at Strasbourg on 12 December 2007, the most recent version is published in [2010] OJ C 83/389 and is also available at, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:EN:PDF.
- 85.
The legal status of the Charter is now confirmed in Article 6(1) of the Treaty on European Union as amended by the Lisbon Treaty, “The Union recognises the rights, freedoms and principles set out in the Charter … which shall have the same legal value as the Treaties”. For a brief history of the Charter and the Lisbon Treaty, see Piris (2010), pp. 147–154 and pp. 158–160.
- 86.
She is also the European Commissioner for Justice, Fundamental Rights and Citizenship.
- 87.
Viviane Reding continues, “The Charter entrenches all the rights found in the European Convention on Human Rights… The Charter, however, goes further and also enshrines other rights and principles, including economic and social rights resulting from the common constitutional traditions of the EU Member States, the case law of the European Court of Justice and other international instruments. In the Charter, we also find the so-called ‘third generation’ fundamental rights, such as data protection, guarantees on bioethics and on good and transparent administration. And Article 53 of the Charter makes it clear that the level of protection provided by the Charter must be at least as high as that of the Convention. Often it will go beyond…” speaking at, ‘Towards a European Area of Fundamental Rights: The EU’s Charter of Fundamental Rights and Accession to the European Convention on Human Rights’, High Level Conference on the Future of the European Court of Human Rights, Interlaken, 18 February 2010.
- 88.
Article 51.
- 89.
However, signing the ECHR is enough to enable individuals to bring actions before the ECtHR. Ratification of the ECHR enables the matter to commence and potentially be disposed of in national courts.
- 90.
European Commission, 2010 Report on the Application of the EU Charter of Fundamental Rights, COM(2011) 160 final, at p. 2.
- 91.
The European Commission has committed itself to producing an annual report on its enforcement see, Communication from the Commission Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union, COM(2010) 573 final, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0573:FIN:EN:PDF.
- 92.
See for example, Case C-173/99 The Queen v Secretary of State for Trade and Industry, ex parte: Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU), (2001) ECR I-4881.
- 93.
See for example Article 263 Lisbon Treaty concerning the review of legality of acts of EU institutions; an individual must first prove that he has legal standing.
- 94.
Article 267 Lisbon Treaty.
- 95.
Where an interpretation is essential to resolve the national case.
- 96.
For the EU’s competence to enter into agreements with international organisations, see Articles 216–218, Lisbon Treaty.
- 97.
See among others, Commission Communication of 12 October 2006 “The demographic future of Europe – From challenge to opportunity” [COM(2006) 571 final available at, http://europa.eu/legislation_summaries/employment_and_social_policy/situation_in_europe/c10160_en.htm
- 98.
The RESC, for instance.
- 99.
However, we shall see that some of the EU non-discrimination Directives give opportunities to Member States not to apply a small number of provisions e.g. not to apply age provisions to armed forces.
- 100.
See Article 3(2) of the Employment Equality Directive and the Race Equality Directive, respectively and see the Preamble to these Directives.
- 101.
The rights and freedoms in the ECHR apply to everyone within the jurisdiction of the state party, see Article 1 ECHR. Similarly, Protocol 12 also applies to everyone.
- 102.
The Explanations that accompany the Charter are invaluable.
- 103.
See the Charter’s Explanations on Article 52(5) which state, “In some cases, an article of the Charter may contain both elements of a right and a principle, e.g. Articles 23, 33 and 34”, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:303:0017:0035:en:PDF.
- 104.
Article 21(2) prohibits discrimination based on nationality in accordance with the EC Treaty, as amended.
- 105.
The six grounds are sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation.
- 106.
Largely, in the context of the right to free movement of people.
- 107.
The third source is Article 11 of the Convention on Human Rights and Biomedicine and pertains to genetic heritage.
- 108.
Article 19 LT also contains some amendments on legislative technique for example, Article 19 improves the role of the European Parliament from a consultative one under Article 13 EC to a consenting role.
- 109.
Note however, Council Directive 2004/113 EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services, OJ L373/37, 21 December 2004, which was adopted under Article 13 EC.
- 110.
Article 52.3, Charter provides “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection”.
- 111.
Meenan (2007), op cit. at pp. 64–65.
- 112.
Idem.
- 113.
As noted above, only a small number of EU Member States have accepted this provision.
- 114.
See Meenan (2007) pp. 39–82 at pp. 53–57 and pp. 65–68, where a number of academic opinions are discussed.
- 115.
The adopted 2007 version of the Charter and the revised Explanations which accompany it see, for example, Article 52 Scope of guaranteed rights, to which Article 52(4)–52(7) have been added. Note Article 52(5) in particular, “The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts in the ruling on their legality”.
- 116.
Article 43 of the Charter however permits EU citizens to petition the European Ombudsman, in limited circumstances “Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the Ombudsman of the Union cases of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role”.
- 117.
Referring to the law of the European Community later referred to as the law of the European Union.
- 118.
European Economic Community.
- 119.
For a discussion of the history and rationale for the Race Directive see Bell (2007) infra at pp. 178–183.
- 120.
For a discussion of the profile of age among the Article 13 grounds see, Meenan (forthcoming).
- 121.
For an early picture of national age discrimination laws across European countries including a much smaller European Union, see Age Discrimination in Europe (1994), pp. 13–16.
- 122.
The Employment Equality Act, 1998, since amended.
- 123.
The Equal Status Act 2000, note this Act and the Employment Equality Act 1998 were amended by the Equality Act 2004 largely in order to comply with the Employment Equality Directive and Race Directive, both adopted in 2000.
- 124.
Council Directive 2000/43 of 29 June 2000 implementing the principle of Equal treatment between persons irrespective of racial or ethnic origin OJ 2000, L 180/22.
- 125.
Council Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000, L 303/16.
- 126.
European Commission (2004), pp. 12–14.
- 127.
Directive 2004/113/EC [2004] OJ L 373/37.
- 128.
As it does not cover the content of media, advertising or education.
- 129.
2.7.2008 COM(2008) 426 final.
- 130.
Including, social security.
- 131.
Barry Fitzpatrick captures the heart of this process when he states, “It is necessary when approaching new equality grounds, to take an integrated but differentiated approach integrated in the sense that many of the legal definitions (and practical implications) of new grounds are common to those of pre-existing grounds, but also differentiated in that each new ground presents issues and controversies which are particular to that ground. The latter perspective is not to endorse a hierarchy of inequality but rather to acknowledge the differences between them”. Barry Fitzpatrick in Meenan (2007), op cit. at p. 313.
- 132.
At Article 5.
- 133.
For example, Member States may keep legislation permitting a difference of treatment on grounds of religion or belief where the ethos of the church or organisation requires it for the nature of the occupation involved, provided any difference in treatment does not justify discrimination on another ground, Article 4(2).
- 134.
Some of the interpretations are referred to in Meenan (2007), at p. 303.
- 135.
Case C-411/05 [2007] ECR I-8531.
- 136.
At para. 44.
- 137.
Para. 45.
- 138.
Case C-144/04 [2005] ECR I-9981. Para. 64.
- 139.
Full title, Ingeniorforeningen i Danmark, acting on behalf of Ole Andersen v Region Syddanmark, Case C-499/08, [2011] ECR not yet reported.
- 140.
Para. 46.
- 141.
Paras. 74 and 75.
- 142.
See for example Eriksson (2009) at pp. 734–735 and at footnotes 30 and 31.
- 143.
See for instance Opinion of Mazak AG in Palacios de la Villa, op. Cit., at paras. 83–97.
- 144.
Case 555/07 [2010] ECR I-365. Paras. 20–21.
- 145.
Critical review of academic literature, op cit. at p. 20.
- 146.
Case C-229/08 [2010] ECR I-1.
- 147.
Paras. 38 and 39.
- 148.
Para. 41.
- 149.
Idem.
- 150.
Case C-388/07 [2009] ECR I-1569.
- 151.
Para. 51, see also Mangold, Palacios de la Villa op cit. and Rosenbladt, Case C-45/09 [2011] IRLR 51 [2011] ECR not yet reported.
- 152.
This Recital was inserted at the request of the United Kingdom.
- 153.
European Commission, (2011) at pp. 55–56.
- 154.
Idem.
- 155.
Bell and Waddington (2003), pp. 349–369.
- 156.
Bell and Waddington (2003), op cit. At footnote 62 they clarify that access is being used in this context to signify access to goods and services.
- 157.
“Such differences of treatment may include, among others: (a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection; (b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment; (c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement”.
- 158.
The Proposal for the Directive referring to Article 5 (now Article 6), states “… This Article provides a non-exhaustive list of differences of treatment on grounds of age which shall not constitute direct discrimination, provided they are objectively justified…” European Commission, COM(1999) 565 final, Brussels, 25.11.1999 at p. 10.
- 159.
- 160.
Article 2(b)(i). Note also Article 2(b)(ii) in relation to appropriate measures to be taken by employers in relation to persons with a particular disability.
- 161.
Numhauser-Henning at pp. 173–174.
- 162.
Vasil Ivanov Georgiev v Tehnichesi universitet – Sofia, filial Plovdiv Joined Cases C-250/09 and C-268/09 ECR not yet reported.
- 163.
Referring to three decided cases under Article 6, Palacios de la Villa, Age Concern England op cit. and Case C-341/08 Petersen.
- 164.
Or from the case file in this case.
- 165.
Para. 43.
- 166.
Para. 68.
- 167.
Case C-159/10, C-160/10, Judgment 21 July 2011.
- 168.
Para. 24.
- 169.
Para. 32.
- 170.
Note budgetary savings is absent.
- 171.
Para. 50.
- 172.
The ECJ pointed out in para. 52 that in Age Concern England op cit. at para. 46 that It had already clarified that aims are ‘legitimate’ if they have a public interest distinguishable from purely individual reasons particular to the employer’s situation but it could not be ruled out that a national rule may, in pursuing that aim recognise a certain flexibility for employers.
- 173.
Para. 55.
- 174.
Paras. 61–63.
- 175.
Para. 66, the ECJ also referred to the Rosenbladt case op cit. in support of this point.
- 176.
Paras. 67–68.
- 177.
Para 74.
- 178.
Paras. 78–82. In the end it is for the national court to assess under the rules of national law, the probative value of the evidence which could also include statistical evidence.
- 179.
Paras. 92–98.
- 180.
Cases C-297/10 and C-298/10, Judgment 8 September 2011, not yet reported.
- 181.
Paras. 69–70.
- 182.
Para. 70.
- 183.
Para. 78.
- 184.
95–99.
- 185.
Case C-447/09, Judgment 13 September 2011, not yet reported.
- 186.
These rules even applied to other companies in the Deutsche Lufthansa group, see para. 30 of the Judgment.
- 187.
Para. 63.
- 188.
Para. 67.
- 189.
Para. 82.
- 190.
This follows the preliminary ruling procedure, a well worn path in European law whereby a national court refers a question for interpretation of European law to the ECJ. The interpretation is then sent back to the national court which applies it to the case before it, Article 267 (TFEU) (ex Article 234 EC).
- 191.
The other case, Susanne Bulicke v Deutsche Buro Service GmbH, Case C-246/09, concerned Articles 8 and 9 of Dir. 2000/78.
- 192.
Article 2(5) provides “This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others”.
- 193.
Depending on the ground.
- 194.
Article 19, Directive 2000/78.
- 195.
European Commission (2011), pp. 93–96.
- 196.
Article 16 requires Member States to take measures to ensure that, “(a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished; (b) any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers’ and employers’ organisations are, or may be declared null and void or are amended”.
- 197.
Article 3.
- 198.
Article 12, such a body must provide independent assistance to victims of discrimination, conduct independent surveys on discrimination and publish independent reports and make recommendations on any issue relating to such discrimination.
- 199.
“to promote equality, to promote and monitor human rights; and to protect, enforce and promote equality across the nine ‘protected’ grounds – age, disability, gender, race, religion and belief, pregnancy and maternity, marriage and civil partnership, sexual orientation and gender reassignment”, see the EHRC website at, www.equalityhumanrights.com/about-us/.
- 200.
At p. 8.
- 201.
P. 8.
- 202.
Case C-236/09, Judgment 1 March 2011.
- 203.
Directive 2004/113 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, OJ [2004] L373/37.
- 204.
The derogation allowed Member States to charge different premiums to men and women, if calculations are based on reliable, regularly updated data available to the public. It must now cease from 21 December 2012, on the basis that otherwise there was a risk that EU law would allow the derogation from the principle of equal treatment between men and women, to persist indefinitely, see para. 31 of the judgment.
- 205.
Article 5(2).
- 206.
The derogation pulled against another provision in the Directive which required Member States to abolish such practices by 21 December 2007, see Article 5(1).
- 207.
Article 10.
- 208.
Discussing the draft predecessor to Article 10.
- 209.
This kind of home is not uncommon in Ireland, for example.
- 210.
Note however, Article 1, EU Charter of Fundamental Rights, Human Dignity, “Human dignity is inviolable. It must be respected and protected”. The Explanations op cit., explain inter alia that the dignity of the human person is part of the substance of the rights laid down in this Charter. It must therefore be respected even where a right is restricted”. Note the reference to dignity in Article 25 Rights of the elderly.
References
(1994) Age discrimination in Europe. Eur Ind Relat Rev 247:13–16
Bell M (2007) EU anti-racism policy: the leader of the pack? In: Meenan H (ed) Equality law in an enlarged European Union – understanding the Article 13 Directives. Cambridge University Press, Cambridge
Bell M, Waddington L (2003) Reflecting on inequalities in European equality law. Eur Law Rev:349–369
Bosely S (2010) Care homes forcing elderly to have feeding tubes fitted. The Guardian, Wednesday, 6 January 2010
Brooks C (2009) Despair of couple forced apart by the NHS. Daily Mail, Friday, 3 July 2009, p 43
Care Quality Commission (2011) News stories, New excellence scheme for adult social care, 28 February 2011. http://www.cqc.org.uk//newsandevents/newsstories.cfm?cit_id=37165&FAArea1=customWidgets.content_view_1%26usecache=false
Daily Mail Dignity for the Elderly (2011) Elderly care home patients ‘left starving and abused’. Daily Mail, Tuesday, April 19, 2011
de Schutter O (2005a) The prohibition of discrimination under European Human Rights Law relevance for EU Racial and Employment Equality Directives. European Communities, p 21
de Schutter O (2005b) Report, The prohibition of discrimination under European Human Rights Law. European Communities Publications Office, Luxembourg
Donald A, Watson J, McClean N (2008) Human Rights in Britain since the Human Rights Act 1998: a critical review, Research Report 28. Equality and Human Rights Commission, April 2008
Eriksson A (2009) European Court of Justice: broadening the scope of European non discrimination law. Int J Constitut Law:731
European Commission (2004) Critical review of academic literature relating to the EU Directives to combat discrimination. European Communities, pp 12–14
European Commission (2011) Developing anti-discrimination law in Europe The 27 EU Member States compared November 2010. Publications Office of the European Union, Luxembourg
Fundamental Rights Agency of the European Union and European Court of Human Rights (2011) Handbook on European non-discrimination law, p 102
Grief N (2002) European convention on human rights: a critique of the United Kingdom Government’s refusal to sign and ratify Protocol 12. Eur Law Rev Human Rights Survey HR/3 (2002), HR/3-HR/5
Parliamentary and Health Service Ombudsman (2011) Care and Compassion? Report of the Health Service Ombudsman on ten investigations into NHS care of older people. Fourth report of the Health Service Commissioner for England. The Stationery Office, London, February 2011
Judge L (2009) Background briefing paper, “The Rights of Older People: International law, Human Rights Mechanisms and the Case for New Normative Standards”. International symposium on the rights of older people hosted by age concern England in collaboration with HelpAge International and the International Federation on Ageing, January 2009 at pp 10–13
Khaliq U (2001) Protocol 12 to the ECHR: a step forward or a step too far? Public Law 457:458
Martin D (2011a) Political Correspondent, 600 Die of Thirst in Care Homes. Daily Mail, Monday, January 31, 2011, front page and p 4
Martin D (2011b) A third of care homes are failing the elderly. Daily Mail, Tuesday, March 1, 2011, p 30
Meenan H (2003) Age equality after the Employment Directive. Maastricht J Eur Comp Law:9–38
Meenan H (2007) Reflecting on age discrimination and rights of the elderly in the European Union and the Council of Europe. Maastricht J 14:39–82
Meenan H (2011) Age discrimination in the European Union: a work in progress? In: Ellis E, Mendez-Pinedo ME (eds) Equality into reality. University of Iceland Press. ISBN 978-9979-54-919-2
Morgan R (2009) The future of elder law. In: Doron I (ed) Theories on law and ageing. The jurisprudence of elder law. Springer, New York
Numhauser-Henning A (2007) EU sex equality law post Amsterdam. In: Meenan H (ed) Equality law in an enlarged European Union – understanding the Article 13 Directives. Cambridge University Press, Cambridge, pp 145–177
Palmer E (2008) Case comment ‘The liability of “functional public authorities” for breach of ECHR rights: the House of Lords endorses a palpable gap in human rights protection’. Medical Law Rev:141–152
Piris J-C (2010) The Lisbon Treaty. A legal and political analysis. Cambridge University Press, Cambridge
Robins J (2007) Law Lords leave elderly out in cold. The Observer, Sunday, 24 June 2007
Rose D (2007) Elderly people suffering abuse and neglect in residential care homes. The Times, August 15, 2007
Schiek D (2011) Age discrimination before the ECJ-conceptual and theoretical issues. Common Market Law Rev 48:777–799
Thomson A, Sylvester R (2007) Human Rights Act to protect elderly. Daily Telegraph, 29 September 2007
United Nations Department of Economic and Social Affairs Division for Social Policy and Development Programme on Ageing (2009) Report of the Expert Group Meeting “Rights of Older Persons”, 5–7 May 2009, Bonn, Germany, pp 13–16
Wintemute R (2004) “Within the ambit”: how big is the “Gap” in Article 14 European Convention on Human Rights? Eur Human Rights Law Rev 4:366
Womack S (2006) News, Care home separations “may breach human rights”. Daily Telegraph, Saturday, 4 February 2006, p 8
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2012 Springer-Verlag Berlin Heidelberg
About this chapter
Cite this chapter
Meenan, H. (2012). Age Discrimination and the Future Development of Elder Rights in the European Union: Walking Side by Side or Hand in Hand?. In: Doron, I., Soden, A. (eds) Beyond Elder Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-25972-2_4
Download citation
DOI: https://doi.org/10.1007/978-3-642-25972-2_4
Published:
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-642-25971-5
Online ISBN: 978-3-642-25972-2
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)