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Newsflash 28.07.2017

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Case law

The age limit of 65 for commercial passenger, cargo and mail air transport pilots is valid

On 5 July 2017, the Court of Justice of the European Union (hereinafter “the CJEU”) ruled on the validity of the age limit of 65 stipulated by Commission regulation no. 1178/2011 of 3 November 2011, defining the technical requirements and administrative procedures applicable to civil aviation aircrew (hereinafter “the Regulation”) for commercial passenger, cargo and mail air transport pilots.

The case related to a pilot working for the airline Lufthansaemployed as a captain since 1986. As he had reached the age of 65 in October 2013, the airline stopped employing him as he no longer had the right to work as a pilot in commercial air transport in accordance with the Regulation. However, his contract only expired on 31 December 2013, when the pilot had reached the age at which he could retire.

The pilot submitted the case to German jurisdiction, and asked for his salary to be paid for the months of November and December 2013, as for these two months, he still had his pilot’s licence as well as his qualifications as an instructor and examiner, roles which he could continue to work in beyond the age of 65.

The German courts referred the case to the CJEU, asking the following question: does the age limit of 65 for commercial airline pilots comply with the principle of non-discrimination based on age, as well as the right to work and carry out a freely chosen or accepted profession, stipulated by the European Union Charter of Fundamental Rights? If so, does this age limit also apply to empty flights or ferry flights, as well as the roles of instructor and/or examiner on an aircraft?

The CJEU answered in the affirmative to the first question and declared that the age limit in question does comply with the principle of non-discrimination based on age as well as the right to work and carry out a freely chosen or accepted profession.

According to the CJEU, while there is a difference in treatment based on age, it is nevertheless justified by the aim, in the general interest, of ensuring the safety of civil aviation in Europe. It constitutes an appropriate way of achieving this aim, as the Regulation takes “taking into consideration the importance of human factors in the field of civil aviation and the progressive reduction of the physical capabilities necessary for acting as an airline pilot over the years”, thus ensuring that a reduction in these physical capabilities after the age of 65 does not cause accidents.

However, the CJEU answered in the negative to the second question. It began by finding that the age limit stipulated by the Regulation is strictly restricted to the following three cumulative conditions: that the holder of a pilot’s licence concerned has reached the age of 65, that he acts as a pilot of an aircraft and that the aircraft is engaged in commercial air transport.

The CJEU highlighted the fact that empty flights or ferry flights are not used to transport passengers, cargo or mail. Furthermore, the activities associated with training and examining pilots involves acting exclusively as an instructor and/or examiner, and does not involve piloting an aircraft. As a result, the age limit of 65 stipulated by the Regulation for commercial airline pilots does not prevent the latter from flying empty flights or ferry flights after the age of 65, or from working as an instructor or examiner on board aircraft.

CJEU decree of 5 July 2017, Case C-190/16, Werner Fries/Lufthansa Cityline GmbH