The ECJ held that a collective agreement which fails to take into account professional experience acquired with another airline company in the same group does not constitute age discrimination.

The facts

Tyrolean Airways (“Tyrolean”) and Lauda Air were wholly owned subsidiaries of Austrian Airlines. All three entities had collective agreements governing the terms and conditions of cabin crew. In 2003, Austrian Airlines and Lauda Air merged and a single collective agreement was agreed which covered both of their cabin crew employment terms. Neither this collective agreement nor the Tyrolean collective agreement recognised service with any other group company.

The Tyrolean collective agreement graded cabin crew into categories A or B. Advancement from category A to category B occurred when cabin crew had over three years’ service with Tyrolean. Category B cabin crew received additional benefits.

Tyrolean’s Works Council (“the Betreibsrat”) argued that those who had over three years’ service with any group company should be entitled to advance to category B and Tyrolean’s collective agreement was indirectly age discriminatory.

The Betreibsrat argued that Tyrolean’s collective agreement was indirectly discriminatory against older workers by only taking into account skills and knowledge acquired as a cabin crew member with one specific airline, and discounting the substantively identical skills and knowledge acquired with another airline within the same group of companies.

The ECJ decision

The ECJ dismissed the Betreibsrat’s case.

The ECJ said that although the clause in Tyrolean’s collective agreement is likely to entail a difference in treatment according to the date of recruitment by the employer concerned, such a difference is not directly or indirectly based on age, nor on any event linked to age.

The ECJ said that therefore it cannot be considered that the clause at issue in Tyrolean’s collective agreement establishes a difference of treatment on the grounds of age in terms of the provisions of Directive 2000/78/EC.

A further question was referred to the ECJ in relation to horizontal direct effect and whether or not a national provision that infringes EU law can be applied in a dispute between two private parties. However, having already found that the clause in Tyrolean’s collective agreement was not age discriminatory, the ECJ declined to answer this.

For a copy of the judgment, click here.

Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH v Betriebsrat Bord der Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH, C-132/11