EUROPE - The European Court of Justice has unveiled two key judgment developments today which suggest pensioners cannot argue they have a right to work beyond the state retirement age if the employer does not allow it while companies can also refuse to pay benefits on the grounds of age.

UK pensioners currently in tribunals about their right to work beyond the age of 65 may be won step closer to losing their cases, as the Heyday case received opinion from the ECJ's Advocate General Mazák - one of legal advisers on pending cases - suggesting there is nothing in UK law which is discriminatory to pensioners.

Under current legislation, individuals are required to retire from the company they work act the employer once they hit the state retirement age, if the employer is unwilling to keep them on for longer.

Age Concern and Heyday are currently fighting Article 6 of the Treaty of the European Union 2000, claiming this is age discrimination and is therefore in contravention of Article 6 - which provides for justification of differences of treatment on grounds of age - because the UK government has not provided sufficient information about the right to access employment.

Today's opinion is only one part of that process so is not binding but can often be usually considered as a strong indicator of the judgment the ECJ may eventually make.

It appears to reaffirm the opinions of government officials in the UK and Italy that the provision of a default retirement age can "in principle" be objectively justified as a matter of national law and employers may "dismiss employees aged 65 or over by reason of retirement", and further states Article 6 "does not, however, require Member States to define the kinds of differences of treatment which may be justified…by means of a list or other measure…"

If the campaigners were to eventually win their case there could be serious implications for pensions funding as employers would also be required to continue provisions beyond retirement age.

Gordon Lishman, director general of Age Concern, said this was not a set back for the UK pensioners as he believes this now forces the UK government to argue their policy is right.

"The Advocate General's opinion confirms that the EU Directive requires age discrimination to be justified. It's now up to the UK government to prove to the High Court that their social and employment policies are important enough to justify kicking people out of work at 65.

"Millions of older workers in the EU will be fuming that the Advocate General thinks ageism counts for less than other forms of discrimination. This is not a minority issue," added Lishman.

This latest ECJ opinion is just one of a series of cases concerning age discrimination and pensions, as was announced at the same time as a judgment on the Bartsch case against Bosch and Siemens Hausergerbote (BSH), which in turn was mentioned in the Heyday case.

Birgit Bartsch filed her case concerning Article 13 of the same directive, which created a general framework for equal treatment in employment and occupation some years ago, after the company refused to pay her a surviving spouse pension because she was over 15 years younger than her partner.

The ECJ heard evidence from the firm, as well as the German, Netherlands, and UK governments, the European Communities Commission and heard the opinion of the Advocate General revealed in May 2005 concerning community law.

Terms of the BSH pension plan first set out in 1984 and then in 1992 stated "payments will not be made if the widow/widower is more than 15 years younger than the former employee".

Mr Bartsch was 60 when he died, and had worked with Bosch from 1988 until his death while Mrs Bartsch was born in 1965 and had married Bartsch in 1986.

The ECJ ruled it cannot find there was age discrimination because a prohibition against discrimination on the grounds of age "is not mandatory where the allegedly discriminatory treatment contains no link with Community law".

If you have any comments you would like to add to this or any other story, contact Julie Henderson on + 44 (0)20 7261 4602 or email julie.henderson@ipe.com

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