A European Court of Justice (ECJ) ruling has reconciled a general ban on age discrimination with Germany's historic practice of setting age limits on its panel dentists. However, the ruling leaves open the possibility that age limits could one day be imposed on all dentists in Germany.
EU Council Directive 2000/781/EC prohibits employment discrimination based on age, but does not preclude measures considered necessary to protect the public's health. However, it also allows the national legislature to provide, in certain cases, that a difference of treatment, although based on age or a characteristic related to age, is not discrimination and is not therefore prohibited.
Forced to retire
The ruling refers to the case of Domnica Petersen, who was born in 1939 and began practicing as a panel dentist in Germany in 1974. In 2007, Dr. Petersen was told by the Admissions Board for Dentists that she could no longer continue practicing as a panel dentist because the German Social Security Code provides that the statutory health insurance scheme expires when a panel dentist reaches the age of 69 (this requirement was changed in 2008, after Dr. Petersen filed her appeal).
Dentists in private practice, however, have always been able to practice regardless of age. But given that about 90% of patients in Germany are covered by the statutory health insurance scheme, private dentistry is a viable option for only a small minority of dentists. (The latest available figures from the German Association of Private Health Insurance Companies show that 8.6 million of people in Germany -- 10.5% of the population -- are privately insured.)
ECJ ruling
Taking her case before the national Court of Dortmund, Dr. Petersen challenged the decision of the admissions board and the legality of legislation denying public health insurance reimbursement for her patients on the grounds that it was age discrimination. Rather than risk an unlawful ruling, the court asked the ECJ to rule on whether Dr. Petersen's case clashed with the provisions of EU Council Directive 2000/781/EC.
In response to Dr. Petersen's appeal, the ECJ ruled on January 12 that a Member State may legitimately consider it necessary to set an age limit for the practice of a medical profession such as dentistry in order to protect the health of patients. However, while the ECJ agreed with the national court that an age limit is justified by the need to protect patients from declining practitioner performance, the ECJ also ruled that such a limit must apply to both panel-certified dentists within the public sector and private practitioners.
Another legitimate objective of an age limit would be to ensure employment opportunities among the generations. In such a case, the presenting national court's role would be to identify the objective of such a limit. If it were found to be in breach of the directive, the national court should decline to apply it, the ECJ said, even if it had been introduced before the directive and although national law made no provision for not applying it.
No longer mandatory
Although the court did confirm the age discrimination aspect of this case (thus failing Dr. Petersen's appeal), it did not throw out the age limit in principle. But this does not mean that German panel dentists are once again obliged to retire at 68 -- for the time being. Although the age limit was removed in 2008, changing circumstances and provisions in the ECJ ruling leave open the possibility that age limits could one day be imposed on all dentists in Germany.
In addition, private practice dentists are not required to provide proof of continuous dental education -- yet. Unless this is changed, there is a chance that all dentists in Germany could suffer compulsory retirement. Any imbalance that puts young dentists at a disadvantage may also cause a scenario for legislators to change the law accordingly and reintroduce the controversial age limit again.
However, legislators should keep in mind that while Germany has no general shortage of dentists, some rural areas are indeed underserved and would suffer if dentists and physicians alike were forced to retire at the age of 68.
Carlheinz Swaczyna was a general dentist in Krefeld, Germany, for 30 years before retiring in 2007. He writes regularly for the weekly German dental publication DZW - Die Zahnarztwoche.
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