P’s contract of employment stipulated that he could be dismissed upon reaching the retirement age of 65. A British piece of legislation authorised this. P argued that the dismissal should be declared void as it inhibited his right to non-discrimination as provided for by directive 200/78. The English court asked the ECJ whether the prohibition of any discrimination based on age in employment must be interpreted as meaning that it precluded national legislation. ECJ held that the legislation didn’t contradict the relevant directive which allowed a discriminatory policy to stand if objectively justified, as here where the legislation sought to encourage employers to take on elderly staff (contradicting the reasoning of ECJ in Mangold). The ECJ made no reference to the general principal of non-discrimination.
AG Mazak: the international instruments and constitutional traditions referred to in Mangold enshrine the general principle of equal treatment, but that it was a bold proposition and a significant move to infer from that the existence of a specific principle prohibiting age discrimination. A general principle of equality potentially implies a prohibition of discrimination on any ground which may be deemed unacceptable, so that specific prohibitions constitute particular expressions of that general principle. However, it is quite a different matter to infer from the general principle of equality the existence of a prohibition of discrimination on a specific ground and the reasons for doing so are far from compelling. Moreover, neither art.13 EC nor Directive 2000/78 necessarily reflect an already existing prohibition of all the forms of discrimination to which they refer. Rather, the underlying intention was in both cases to leave it to the Community legislature and the Member States to take appropriate action to that effect.