20/04/2021

Italian Supreme Court confirms that certain age restrictions are lawful for pilots in aviation companies engaged in national intelligence activities

Cafaro v DQ, Case C-396/18, Court of Justice of the European Union

Cafaro v DQ, Case 9662/2021, Italian Supreme Court

 

On 13 April 2021 the Italian Supreme Court rendered a much-awaited decision (Cassation, 9662/2021, not yet published) in a case concerning the lawfulness of a national measure setting special age restrictions for pilots flying planes involved in national intelligence operations.

The claimant was a pilot employed by DQ, an aviation company operating in the field of national intelligence, albeit formally registered as a civil aviation company. The claimant’s contract of employment as a pilot with DQ was automatically terminated, pursuant to Italian law, when the pilot reached age 60. National legislation set this comparatively low age limit in consideration of the fact that pilots’ skills reduce with age, and DQ’s flights present particularly high technical challenges, given their modalities and operative scenarios.

The claimant sued DQ before various Italian courts, to seek reinstatement into his job. The pilot argued that the age limit set for DQ pilots constituted an age-based discrimination incompatible with EU law, considering that in EU law the compulsory age of retirement for pilots in commercial civil aviation is not 60, but instead 65.

The Italian Supreme Court made a request for a preliminary ruling to the Court of Justice of the European Union, pursuant to Article 267 of the Treaty on the Functioning of the European Union, seeking guidance as to whether the national measure was compatible with the Charter of Fundamental Rights and anti-discrimination Directive 2000/78/CE, or rather constituted a prohibited form of discrimination based on age.

The Court of Justice found (case C-396/18) that the measure could in principle be justified both under Article 5(2) of the Directive, as a measure laid down by national law which, in a democratic society, is necessary for public security; and under Article 4(1), as a measure based on a characteristic (in this case, age) that constitutes a genuine and determining occupational requirement, provided that the objective is legitimate, and the requirement is proportionate.

In its analysis, the Court of Justice found first of all that the measure at issue was laid down by “national law” for purposes of Directive 2000/78/CE, despite not being set out in a law in the formal sense, but rather in a Decree by the Italian Prime Minister. It further found that the age restriction pursued two aims – aviation safety and protection of national security – both of which were considered by the court to be legitimate.

In assessing the question of proportionality and necessity of the measure under Articles 5(2) and 4(1) of the Directive, the court indicated that the limit of age 65, which generally applies to civil aviation, should not be used as the parameter to assess the lawfulness of a measure meant to apply to national intelligence flights, given that these are technically more complex and physically more challenging than commercial flights. It was irrelevant, for the court, that DQ formally operated as a civil aviation company. The court also did not accept that certain mechanisms for risk mitigation adopted in the context of civil aviation – for instance that pilots above the age of 60 can continue to fly as long as they do so as part of a crew of younger pilots – indicated lack of proportionality of the automatic termination of a DQ pilot’s contract, upon turning 60.

The court concluded that the national measure could not have been considerate disproportionate solely because it set a different age limit than was applicable in the context of civil aviation.

The Court of Justice then left it to the Italian Supreme Court to assess, in concrete terms and taking into account all circumstances, whether the measure was necessary and proportionate. The Supreme Court, presided by a former President of the European Court of Human Rights, Judge Guido Raimondi, found last week that the measure meets these requirements, given the nature of DQ’s flights, and the circumstance that the age limit of 60 was not set arbitrarily, but rather because it marks a general “watershed” in national and international legislation on flight safety (for example, as explained above, because above the age of 60, commercial aviation pilots are allowed to fly only as part of a flight crew of younger pilots).

Paolo Busco acted for DQ before the Court of Justice of the European Union as lead counsel and advised DQ before the Italian Supreme Court.