European Court of Justice: The age limit for union chairpersons is age-discriminatory

For decades, Danish trade unions have decided that chairpersons and deputy chairpersons must resign when they reach a certain age. The rules are i.e., to prevent chairpersons from sitting on the post for too long and to ensure an ongoing generational change.

The case in short

The case concerned a then 63-year-old former HK chairman who could not run for chairman again and had to resign after 18 years in the post because she was more than 60 years old. This happened in accordance with HK’s regulations, which set the age limit for chairpersons of the association.

Consequently, the former chairman then initiated a case before the Board of Equal Treatment which was treated as a matter of principle. The Board of Equal Treatment found that the former chairman was covered by Council Directive 2000/78 (the Employment Directive), which pursuant to article 3, applies in both the public and private sectors to all individuals in connection with access to employment, self-employment, private employment, including selection criteria and conditions of employment, regardless of industry and regardless of level in the business hierarchy, including regarding promotion.

As the Danish rules must be interpreted in accordance with the broad scope of the directive, the Board of Equal Treatment determined that the Discrimination Law’s rules on age discrimination, which i.e., implements the Employment Directive, must be applied accordingly.

It was the Board’s opinion that the former chairman’s post was in fact a professional occupation within the meaning of the directive, although the post contained elements that are characteristic of both self-employed and wage earners.

In the ruling, the Board of Equal Treatment extended the scope of application of the Discrimination Law, as union representatives fall outside the labour law legislation as a starting point.

When HK did not comply with the Board of Equal Treatment’s decision, the Board of Equal Treatment initiated a lawsuit against HK. During the trial, the Eastern High Court requested a prejudicial submission from the European Court of Justice.

The decision of the European Court of Justice

The European Court of Justice ruled that the terms “paid employment”, “self-employment” and “private employment” in the Directive include all rules that set conditions for access to any professional activity, regardless of its nature and content, and that the terms must be understood in a broad sense.

The Court also referred to the Directive’s wording of Article 3 (1) point A, where it i.e., states that the Directive applies in “both the public and private sectors, including public bodies, to all persons regardless of the business hierarchy”.

The European Court of Justice also determined that the fact that the role as chairman is a political position has no bearing on whether one is covered by the Directive.

In addition, the Court held that there was “participation in” an employees’ association covered by Article 3(1) point D.

Significance of the decision

The Danish labour market has several special characteristics, including unclear definitions of employees vs self-employed, as well as a number of items of occupational activity that cannot be classified as terms of employment in its true sense. 

In many of these areas, the perception so far has been that EU directives have limited application as they relate to regulating conditions in the classic employer-employee relationship.

The EU Courts decision is a significant change from previous practice

The decision means, among other things, that a number of trade unions must now change their internal rules and remove the age limit for chairpersons/deputy chairpersons.

With the decision, the European Court of Justice states that the Employment Directive has a  scope and is not limited to workers alone, but covers any professional activity, including presidents and politically elected officials.

As the Employment Directive has a wide scope and applies to both the public and private sectors regardless of industry, the ruling may, in addition to trade unions and employers’ associations, also have an impact on private companies’ rules for board positions and the like.

Read the Board of Equal Treatment’s ruling here and the entire European Court of Justice judgment C-587/20 here.

If you have questions about the decision or the rights and obligations that apply to your workplace, please do not hesitate to contact our employment law specialists Partner, Attorney Michael Møller Nielsen or Assistant Attorney Mina Faiz.