Germany / Hessian Higher Administrative Court / 7 C 897/13.N Man v State regulation on authorised inspectors and official experts

Key facts of the case:

The plaintiff brought an action against the state regulation on authorized inspectors and official experts, which provides an absolute age limit of 70 years. The claimant, an accredited inspection engineer for technical installations in buildings, was concerned by the provision for the first time, due to extinction of his licence by exceeding the age limit at the end of October 2013. He raised a judicial review against the act on April 2nd 2013, stating that it particularly violates the Charter right to protection against age discrimination. Especially the “security reserve” in article 2 paragraph 5 2000/78/EC (Employment Equality Framework Directive) provides no sufficient vindication, according to the claimant’s view, as the measure of a strict age limit is not necessary to achieve the purposed public security, which can also be reached by the more mildly measure of frequent medical examinations of mental and physical capability and survey on the current expertise knowledge. However, the Court ultimately ruled that there was no breech of the Charter by the Hessian building code: although a fixed age limit indeed constitutes an age discrimination according to article 21 paragraph 1 of the Charter, but this infringement was considered justified, referred to article 51 paragraph 1 CFREU, and no violation of the command of non-discrimination.

Paragraphs referring to EU Charter: 


Margin number 40 et. seq.: “[…] The authorization of the legislature to determinate a fixed age limit […] ultimately is no violation of the ban on age discrimination set by art. 21 (I) CFREU. The scope of the Charter is disclosed by art. 51 (I) 1 CFREU, because the use of the security reservation established by art. 2 (V) 2000/78/EC by the member state Germany at sub-national level constitutes the implementation of Union law as defined by art. 51 (I) 1 CFREU. The delegated power at state law legislature level to set fix age limits is an age discrimination referred to art. 21 (I) CFREU. Yet the discrimination is justified by art. 52 (I) CFREU and therefore no breech of the discrimination ban. According to art. 52 (I) 1 CFREU, each constraint of the execution of charter-based and acknowledged rights and freedoms must be statutorily provided, with respect to the essence of these rights. Referred to art. 52 (I) 2 CFREU, restrictions to these provisions may only be conducted - under ensuring the principle of proportionality – if they are required and effectively correlate with the recognized objectives of the European Union, the purpose of public welfare and protection of the rights and freedoms of the other. These prerequisites are met for the very reasons - as mentioned beforehand – stated in relation to the justified intrusion in Art. 12, 3 of the German Constitution. […]”

Deciding body (original language): 
Hessischer Verwaltungsgerichtshof, 7. Senat