Is price discrimination based on age legal in the EU?

Question

Article 21(1) of the EU Charter of Fundamental Rights states that:

Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

Recently while travelling in an EU country, I used a swimming pool. The pool had a discounted rate for students. One party in my group tried to obtain the student discount but was refused as it was only available for students aged 25 or younger.

This seems to me to be a clear case of discrimination based on age. Effectively, students who are 26+ are charged a different rate to students who are up to 25.

Are there any other EU laws or cases which would suggest that such a pricing structure is legal?

Answer 1

The Charter applies to EU Member States when they are implementing EU law. If for example there is an EU directive that the member state is to give effect to in domestic law, the member state must take into account the EU Charter when making the new legislation. Outside that, there is no obligation on the member state to act consistently with the EU Charter.

When the UK Government drafted the Equality Bill (that would become the Equality Act 2010), they primarily consolidated UK domestic law relating to discrimination. There were some EU anti-discrimination directives to implement but no adopted directives that pertained to age discrimination. See background to the Act in its Explanatory Notes.

At the time of making the legislation there was a draft directive relating to age discrimination. At the time of writing this is still a draft directive.

The Equality Act 2010 does have a general prohibition of discriminating on the basis of age. Age is one of its "protected characteristics". However, the intent of the ban is to prohibit "only harmful treatment that results in genuinely unfair discrimination because of age. It should not outlaw the many instances of different treatment that are justifiable or beneficial." (see the consultation document or the government guidance.)

They consulted on (among other things) whether there should be exceptions and what they might be.

The Act gives a Minister the power to make an order to create an exception.

It is unlawful to discrimate by age unless:

• the practice is covered by an exception from the ban
• good reason can be shown for the differential treatment ('objective justification', 'positive action')

The age discrimination explicit exceptions are headed:

• Immigration
• Financial services
• Concessionary services
• Holidays
• Age restricted services
• Residential mobile homes
• Associations
• Sport

And the Concessionary services section says:

4.—(1) In Part 7 of Schedule 3 to the Act (the title to which becomes “Separate, single and concessionary services, etc”), after paragraph 30 insert— “Concessions

30A.—(1) A person does not contravene section 29, so far as relating to age discrimination, by giving a concession in respect of a service to persons of a particular age group.

(2) The reference to a concession in respect of a service is a reference to a benefit, right or privilege having the effect that the manner in which the service is provided is, or the terms on which it is provided are, more favourable than the manner in which, or the terms on which, it is usually provided to the public (or, where it is provided to a section of the public, that section).”.

I imagine other EU member states have gone through similar exercises.

Answer 2

"Explanations relating to the Charter of Fundamental Rights" on the website you linked to is very clear that the Charter of Fundamental Rights only means the EU institutions can't discriminate based on age, and that EU law is not allowed to be age discriminatory. It doesn't mean that individual acts of age discrimination are illegal:

In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law.

The practice of youth and senior discounts is older than the charter of fundamental rights. The charter will be interpreted in the light of continuity, it definitely wasn't the intention to outlaw price discrimination. There are specific laws that make price discrimination based on certain principles legal, e.g. UK equality act: Age discrimination - when discrimination is allowed in the provision of goods or services