CJEU - C-159/10 and C-160/10 / Judgment Gerhard Fuchs (C-159/10) and Peter Köhler (C-160/10) v Land Hessen

Key facts of the case:

Two prosecutors within the civil service of a German federal state (“Land”) wished to keep their post beyond the statutory age of retirement of 65, but their application was dismissed, though the law provided for such an opportunity, if in the interest of the public service. The court of first instance seized by the applicants decided to refer to ECJ.

Results (sanctions) and key consequences of the case:

1. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation does not preclude a law, such as the Law on the civil service of the Land Hessen (Hessisches Beamtengesetz), as amended by the Law of 14 December 2009, which provides for the compulsory retirement of permanent civil servants – in this instance prosecutors – at the age of 65, while allowing them to continue to work, if it is in the interests of the service that they should do so, until the maximum age of 68, provided that that law has the aim of establishing a balanced age structure in order to encourage the recruitment and promotion of young people, to improve personnel management and thereby to prevent possible disputes concerning employees’ fitness to work beyond a certain age, and that it allows that aim to be achieved by appropriate and necessary means.
2. In order for it to be demonstrated that the measure concerned is appropriate and necessary, the measure must not appear unreasonable in the light of the aim pursued and must be supported by evidence the probative value of which it is for the national court to assess.
3. A law such as the Law on the civil service of the Land Hessen, as amended by the Law of 14 December 2009, which provides for the compulsory retirement of prosecutors when they reach the age of 65, does not lack coherence merely because it allows them to work until the age of 68 in certain cases or also contains provisions intended to restrict retirement before the age of 65, and other legislation of the Member State concerned provides for certain – particularly elected – civil servants to remain in post beyond that age and also the gradual raising of the retirement age from 65 to 67 years.

EU Charter of Fundamental Rights - Article: 15 (1)