“Guillotine pension clauses” are discriminatory in public companies (2011)

Cour de cassation 16 February 2011 n°10-10.465 and n°09-72.061
Two cases have held illegal automatic pensions provisions applied inEDF (national electricity company) and SNCF (national railway company). Per their internal statutes, those companies have a system by which employees are automatically pensioned at the age of 60 years (“clauses couperet” so called “blade clauses” or “guillotine clauses”).
Several jurisdictions have until now held that those automatic pension clauses were not illegal in public companies and did not constitute discrimination forbidden by article L.1132-1 of the Labour Code.
In the 2011 cases, judges have held that those provisions breached article 6(1) of the 2000/78 Directive (“Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary”).
In the EDF case, judges held that the Court of Appeal did not review whether the discrepancy in the treatment based on age was objectively and reasonably justified by a legitimate objective and that means were appropriate and necessary. In the SNCF case, the Court rejected the company’s appeal indicating that its sweeping statement could not enable to justify the pensioning of the employee and was therefore discrimination based on age and was thus null and void. Carelessly, the SNCF limited itself to revert to the Conseil d’Etat decision in the same case (CE 19 mai 2006, n°274692
In practice, this does not mean that all guillotine clauses are null and void in public companies as it still possible to justify them according to article 6(1) of the EC Directive.