An EU Perspective on Age as a Distinguishing Criterion for Collective Dismissal: The Case of Belgium and The Netherlands

Abstract

As a result of the economic crisis in the European Union, many companies have been forced to reorganize their activities in an attempt to cope with the substantial difficulties they face. Collective dismissals may be the ultimum remedium for the company to survive. This article considers whether an employer can dismiss an employee, merely based on age and, more specifically, pursuant to national legislation containing an age-pyramid principle (Belgium) or mirror-principle (the Netherlands). EU legislation and case law on discrimination on the basis of age are analysed to establish whether age can be used as a criterion to distinguish among employees within the framework of collective dismissals. Since the Court of Justice of the EU (CJEU) judgment in Odar, age-based measures taken by the social partners to ensure the survival of the undertaking would appear to be acceptable, in line with a more substantive approach to equality. However, a number of critical points need to be examined in this respect,such as whether the social partners can act as institutions promoting equality of all kinds.