Case C‑190/16

Werner Fries

v

Lufthansa CityLine GmbH

(Request for a preliminary ruling from the Bundesarbeitsgericht)

(Reference for a preliminary ruling — Air transport — Regulation (EU) No 1178/2011 — Annex I, point FCL.065(b) — Holders of a pilot’s licence who have attained the age of 65 prohibited from acting as pilots of aircraft engaged in commercial air transport — Validity — Charter of Fundamental Rights of the European Union — Article 15 — Freedom of occupation — Article 21 — Equal treatment — Discrimination on grounds of age — Commercial air transport — Concept)

Summary — Judgment of the Court (First Chamber), 5 July 2017

1. Transport—Air transport—Technical requirements and administrative procedures related to civil aviation aircrew—Regulation No 1178/2011—Holders of a pilot’s licence who have attained the age of 65 prohibited from acting as pilots of aircraft engaged in commercial air transport—Validity in the light of the prohibition of discrimination on grounds of age and the right to freedom of occupation

   (Charter of Fundamental Rights of the European Union, Arts 15(1) and 21(1); Commission Regulation No 1178/2011, Annex I, point FCL.065)

2. Transport—Air transport—Technical requirements and administrative procedures related to civil aviation aircrew—Regulation No 1178/2011—Holders of a pilot’s licence who have attained the age of 65 prohibited from acting as pilots of aircraft engaged in commercial air transport—Scope—Those licence holders not prohibited from acting as pilots in ferry flight or from working as instructors and/or examiners on board an aircraft, without being part of the flight crew

   (Commission Regulation No 1178/2011, Annex I, point FCL.065)

1.  Consideration of the first and second questions has revealed nothing that might affect the validity of point FCL.065(b) in Annex I to Commission Regulation (EU) No 1178/2011 of 3 November 2011 laying down technical requirements and administrative procedures related to civil aviation aircrew pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council, in the light of Article 15(1) and Article 21(1) of the Charter of Fundamental Rights of the European Union.

   Under that provision, holders of a pilot’s licence are prohibited from acting as pilots of an aircraft engaged in commercial air transport upon reaching the age of 65. Point FCL.065(b) in Annex I to Regulation No 1178/2011 thus gives holders of a pilot’s licence who have attained the age of 65 less favourable treatment than those under the age of 65. Consequently, it must be held that that provision establishes a difference in treatment based on age.

   Furthermore, as the Advocate General observed in point 33 of his Opinion, that limitation respects the essential contents of the principle of non-discrimination. That limitation does not call into question the principle as such, as it concerns only the question, limited in scope, of restrictions on performing pilot duties in order to ensure the safety of aviation (see, by analogy, judgment of 29 April 2015, Léger, C‑528/13, EU:C:2015:288, paragraph 54).

   However, it should be recalled that, as regards aviation safety, when interpreting Article 2(5) and Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16), the Court has held that the objective of guaranteeing air traffic safety constitutes a legitimate objective within the meaning of those provisions (see, to that effect, judgment of 13 September 2011, Prigge and Others, C‑447/09, EU:C:2011:573, paragraphs 58 and 69). In those circumstances, it must be held that the objective of establishing and maintaining a high uniform level of civil aviation safety in Europe constitutes an objective of general interest.

   Furthermore, it should be noted that, after stating that it is essential that airline pilots possess sufficient physical capabilities, in so far as physical defects may have significant consequences for that profession, the Court held that it is undeniable that those capabilities diminish with age (see, to that effect, judgment of 13 September 2011, Prigge and Others, C‑447/09, EU:C:2011:573, paragraph 67). Consequently, as they make it possible to prevent a reduction of those physical capabilities after the age of 65 causing accidents, the provisions of point FCL.065(b) in Annex I to Regulation No 1178/2011 are appropriate for achieving the objective of general interest pursued. Accordingly, prohibiting holders of a pilot’s licence who have attained the age of 65 from acting as pilots of aircraft engaged in commercial air transport is an appropriate means of maintaining an adequate level of civil aviation safety in Europe.

   In such circumstances, it does not appear unreasonable for the EU legislature, by taking into consideration the importance of human factors in the field of civil aviation and the progressive reduction of the physical capabilities necessary for acting as an airline pilot over the years, to find it necessary to fix an age limit for acting as a pilot in the commercial air transport sector, in order to maintain an adequate level of civil aviation safety in Europe. In those circumstances, it must be held that prohibiting holders of a pilot’s licence who have attained the age of 65 from acting as pilots of aircraft engaged in commercial air transport does not go beyond what is necessary for achieving the objective of general interest pursued. It follows from the foregoing that difference in treatment on grounds of age established by point FCL.065(b) in Annex I to Regulation No 1178/2011 is compatible with Article 21(1) of the Charter.

   Furthermore, all of the considerations set out in paragraphs 53 to 68 of the present judgment support the conclusion that the EU legislature, by laying down the provision whose validity is challenged, has weighed the requirements of aviation safety against the individual right of holders of a pilot’s licence aged over 65 to engage in work and to pursue a chosen occupation, in a way that cannot be regarded as disproportionate in relation to the objective pursued. Accordingly, prohibiting holders of a pilot’s licence who have attained the age of 65 from acting as pilots of aircraft engaged in commercial air transport, referred to in point FCL.065(b) in Annex I to Regulation No 1178/2011, is compatible with Article 15(1) of the Charter.

   (see paras 32-34, 38, 42, 43, 46, 47, 52, 56, 68, 69, 78-80, operative part 1)

2.  Point FCL.065(b) in Annex I to Regulation No 1178/2011 must be interpreted as prohibiting the holder of a pilot’s licence who has attained the age of 65 neither from acting as a pilot in ferry flights, operated by an air carrier carrying no passengers, cargo or mail, nor from working as an instructor and/or examiner on board an aircraft, without being part of the flight crew.

   It is thus apparent from the very wording of that provision that only those situations cumulatively meeting three conditions, namely, that the holder of a pilot’s licence concerned has attained the age of 65, that he acts as a pilot of an aircraft and that that aircraft is engaged in commercial air transport, fall under the restriction laid down by that provision.

   In that context, it is important to note that point FCL.010 in Annex I to Regulation No 1178/2011 explicitly defines the concept of ‘commercial air transport’ as the transport of passengers, cargo or mail for remuneration or hire. As far as ferry flights are concerned, as is apparent from the order for reference and the wording of the third question, they are not used for the transport of passengers, cargo, or mail.

   Furthermore, as regards activities associated with the training and examination of pilots, it is common ground that, even though he remains in the cockpit of the aircraft, the holder of a pilot’s licence acting as an instructor and/or examiner does not pilot the aircraft.

   It must therefore be held that neither ferry flights nor activities associated with the training and examination of pilots fall within the scope of the measure referred to in point FCL.065(b) in Annex I to Regulation No 1178/2011.

   (see paras 83-88, operative part 2)