Fine-tuning non-discrimination law: exceptions and justifications allowing for differential treatment on the ground of age in EU law

This article explores the outer and inner boundaries of the prohibition of discrimination on grounds of age as established by European Union (EU) law and implemented in a selected number of member states. The case law of the Court of Justice of the European Union (CJEU) on the matter is marked by a broad interpretation of the material scope of the prohibition of age discrimination. A large range of situations thereby fall within the scope of EU law; yet the European Court has overall adopted a rather flexible approach to acknowledging the legitimacy of justifications as well as the adequacy and necessity of measures having a discriminatory effect. Some of the key substantive challenges faced by courts relate to the delicate link between age and capabilities as well as to the interaction between the prohibition of age discrimination and retirement ages. It will be argued that the complexity of the CJEU's case law on the matter is regrettable