Åldersdiskriminering eller tillåten särbehandling på grund av ålder? En studie av den svenska rättsutvecklingen i ljuset av EU-domstolens rättstillämpning

Sammanfattning: The purpose of this thesis is to examine how the development in Swedish law, as to what is considered to be a permissible difference in treatment on grounds of age, relates to the case law developed by the Court of Justice of the European Union in the view of Directive 2000/78/EU and the general principle of non-discrimination in respect of age. The secondary purpose of this thesis is to apply the theory of normative patterns developed by Anna Christensen on the results of the legal analysis. The patterns focused on are the protection of the established position, the market functional pattern and just distribution. The prohibition of discrimination on grounds of age is well established in various international legal documents but has been developed even further in union law through the adoption of directive 2000/78/EU and the dynamic case law by the Court of Justice. Difference in treatment on grounds of age can be justified under the directive if the difference in treatment is regarded as appropriate and necessary to pursue a legitimate aim concerning employment policies and labour market objectives. The member states enjoy a broad margin of discretion in determining these objectives, as well as to the means used. The Court of Justice has adopted an open approach when assessing the legitimacy of the aims of different provisions, but has taken a more strict approach when assessing the means. Difference in treatment on grounds of age must according to the case law be of public interest and not merely benefit the individual employer. The prohibition of discrimination on grounds of age was implemented into Swedish law through the launch of the Non-discrimination Act. The Act contains an exception allowing for difference in treatment according with the directive. Due to the fact that the member states enjoy a broad margin of discretion in determining the purposes and means for difference in treatment on grounds of age, the Swedish legislator has chosen to keep several provisions in the Swedish Employment Protection Act (lagen om anställningsskydd, LAS). These provisions allow for difference in treatment on grounds of age, particularly section 5 fourth point LAS and sections 32 a– 33 LAS, which also makes it possible to regulate difference in treatment by collective agreements. The main purpose of these provisions is to aid in the participation of the older workers on the labour market. The assessments made by the Swedish legislator regarding the legitimacy of the purposes of the provisions are reasonable with reference to the member states broad margin of discretion. Despite this, the provisions are questionable as regards to their necessity and appropriateness to achieve the aims pursued. The purposes could presumably be achieved through means which are less intervening for the employee concerned. Whether the Swedish provisions are compatible with the case law developed by the Court of Justice is therefore doubtful. In the light of the theory of normative patterns it can be concluded that the protection of the established position is weakened through provisions concerning compulsory retirement ages in national legislation or in collective agreements. The pattern of just distribution appears through the provisions stating compulsory retirement since they aim to aid in the participation of the younger generations in the labour market. The pattern of market functionality and freedom of contracts is perceived through the possibilities to regulate difference in treatment in collective agreements, for example concerning holydays depending on the workers age and provisions on compulsory retirement.