From this point of view we can analyze the age limitation concerning the profession of pharmacy manager. The condition of practice as a pharmacy manager is not to complete 65 years old and appropriate experience. Pharmaceutical Inspector can agree for practice as a pharmacy manager till the age of 70 (there is no possibility to practice after this boarder).
Directive 2000/78/EC indicates, that there are possible limitations of the equality in employment, especially in accordance to independent occupations and professions. They have to justified by the a genuine and determining occupational requirement (genuine occupational requirements, GOR). In the doctrine there are discussions if a man can be a salesman in a store with female lingerie.
The second limitation results from article 6 of the directive 2000/78/EC and from article 31 para 3 of the Polish Constitution and is based on rule of proportionality. Different treatment could be acceptable if it is objectively and reasonably justified by a legitimate aim (such as employment policy, labour market and vocational training objectives) and if the means of achieving that aim are appropriate and necessary.
In the light of the above mentioned rules it could be seemed, that the aim/target of the age limitation of pharmacy manager is to care about the interest of the potential clients. One of the pharmacy manager is to prepare prescribed medicines. It could happen that health condition of such person could be obstruction/hurdle in correct carrying out /bringing off their duties. Polish law doesn’t make provision for such age limitation in regulation in doctor or attorney professions. Possibility of practicing those professions depends on their overall health condition. It seems that the analogous regulations could rule the profession of pharmacy manager as well. Annual health medical would secure the value (public health) and it wouldn’t limit the possibility of practicing as a pharmacy manager – they would measure up the rule of proportionality.
The European Ombudsman is also against analogous age limitations. It expressed it in accordance with the case of Auxiliary Conference Interpreters (ACIs). This case relate to discrimination on the grounds of age, and more specifically, the decision to stop hiring Auxiliary Conference Interpreters (ACis), that is, freelance interpreters hired for specific conferences and meetings, who are older than 65 years of age. The Ombudsman took the view that the Commission had not adequately justified why it treated ACis over 65 differently. Since the case raised an important issue of principle, the Ombudsman submitted a special report to Parliament. This was the only special report issued by the Ombudsman in 2008.
Since the present case raises an important issue of principle, the Ombudsman has now submitted a Special Report to Parliament. In the Special Report the Ombudsman notes that he has already recommended to the Commission to change its current policy of imposing a ban on the recruitment of ACIs over 65 years of age. He also recommended that the Commission compensate the complainant.
Article 21 of the Charter of Fundamental Rights prohibits age discrimination. The Ombudsman accepts that a difference in treatment on grounds of age can, in exceptional circumstances, be justified in order to achieve ‘legitimate aims’. In the present case, the Ombudsman did not exclude the possibility that the Commission’s stated aim – the recruitment and training of new interpreters – could be a ‘legitimate aim’. However, he doubted that a complete ban on the recruitment of ACIs over 65 years of age was appropriate and necessary to achieve that aim. In his Special Report the Ombudsman urges Parliament to support the recommendation he made to the Commission.
It seems that analysis of Polish law is necessary, especially to find out if it is compatible with constitutionals rights and freedoms and general rules of community law (Mangold judgement, C-144/04). This necessity was recently confirmed by the opinion of that ECJ’s general advocacy Yves Bot in the case Petersen (C-341/09) concerning age limitations (68 years) in practicing dentist profession under German law. He assessed that such a limitation is rational and objectively justified in the light of the aims – protection of system of health care insurance and creating a chance of practicing as a dentist for young people. It’s a question if regulation of pharmacy manager binding in polish law are the manifestation of such clearly assigned rational and coherent aims as german regulation.
Barbara Grabowska
