Dental flaws

Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe

The Equal Treatment Directive has come in for more scrutiny by the European Court of Justice (ECJ) in Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe. It decided that setting a retirement age of 68 for state dentists could not be justified, given that private dentists were not subject to the same rule.

Basic facts

Under the German statutory health insurance system covering 90 per cent of patients, panel doctors and dentists were not allowed to practise beyond the age of 68. Non-panel dentists (practising privately) were not, however, subject to any age restriction.

Ms Petersen, who was born on 24 April 1939, started practising as a panel dentist on 1 April 1974. When she reached 68 she was told that her authorisation would expire in June 2007. She complained that the decision was contrary to the Equal Treatment Directive.

The German government relied on an exemptions in article 2(5) and the provisions of article 6(1) of the directive, claiming three legitimate aims:

• protecting patients against the risks presented by older panel dentists whose performance was thought to decline after 68 
• preserving the financial balance of the statutory health insurance scheme and 
• ensuring opportunities for younger people to become dentists.

Relevant legislation

Article 2(5) states that the directive does not cut across measures laid down by national law which are necessary for the protection of health , among other things.

Article 6(1) of the Directive says that member states can allow for differences in treatment on the ground of age if “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”.

ECJ decision

The ECJ said that although the rule meant that panel dentists were treated less favourably than other dentists once they got to 68, the Government had a legitimate aim in protecting patients from dentists whose performance might be declining. However, that aim had been undermined by allowing dentists to practice on a private basis outside the panel system after the age of 68 and so could not be accepted.

If, however, the aim was to ensure the financial stability of the German health system, that could be considered necessary for the protection of heath and could potentially be justified as it provided a means of limiting the pool of dentists employed within the national health system. This, however, was for the national court to decide.

Finally, the ECJ said the age limit could also be justified as an “appropriate and necessary” way of ensuring that younger people got to work as panel dentists. Otherwise member states might end up with far too many of them which would mean younger dentists could be denied access to employment. This, however, was also up to the national court to decide as it would depend on factors in the local labour market such as the numbers of dentists at age 68, the numbers wishing to enter the profession and so forth.