The claimant, who was born on 26 April 1936, opposes the refusal of a further public appointment as a sworn expert.

Due to a one-time limited extension until reaching the age of 71 in 2007, he was a publically appointed and sworn expert for the areas of "application of data processing in accounting and data protection", as well as "data processing in the hotel business". His application of 12 January 2007 for an extension of the application by five, or, alternatively, by four years was denied by the defendant Chamber of Industry and Commerce with notice of 1 March 2007 with the reasoning that pursuant to their expert regulations (SVO, Sachverständigenordnung), an appointment expires when the expert reaches the age of 68; it could only be extended once, at the longest until reaching the age of 71.

After unsuccessful objection, the claimant filed an action.

The action was neither successful before the Administrative Court nor the Higher Administrative Court. In the Higher Administrative Court's opinion, the age limited set forth in the expert regulations is compatible with article 12 (1) of the Basic Law (GG, Grundgesetz). Even if one considered the General Equal Treatment Act (AGG, Allgemeines Gleichbehandlungsgesetz) to be applicable, there would be direct unequal treatment based on age in the denial of a further appointment. However, this would be justified pursuant to section 10 first and second sentences AGG. To ensure orderly legal relations, the legislator, by way of the institution of the publically appointed and sworn experts, wanted to ensure the always reliable performance capability of the experts and, to this end, by determining a maximum age limit wanted to grant the possibility to exclude experts who no longer are as capable to perform.

The claimant's appeal on points of law was denied by the Senate of decision with its judgment of 26 January 2011 Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) 8 C 46.09 - (Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 139, 1). Though the General Equal Treatment Act was applicable to the public appointment of experts and the denial of the desired re-appointment due to exceeding the maximum age limit also constitutes unequal treatment on grounds of age. However, this is justified. The aim pursued by the legislator to ensure orderly legal relations is legitimate within the meaning of section 10 first sentence AGG, also if it is not a socio-political aim within the meaning of Directive 2000/78/EC. The socio-political aim listed as examples in the Directive (employment policy, labour market, vocational training) only represented one of several categories of legitimate aims.

This judgment was set aside by the Federal Constitutional Court in its decision of 24 October 2011 (1 BvR 1103/11) with the reasoning that it was issued while violating the obligation to initiate a preliminary ruling procedure before the Court of Justice of the European Union (ECJ).

10 The appeal on points of law is well-founded. The judgment of the Higher Administrative Court violates federal law (1.) and also does not prove correct based on other reasons (2.). Pursuant to section 113 (5) second sentence of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung), the defendant shall be obligated to decide again on the claimant's application of 12 January 2007 for an extension by five years of his public appointment as expert - as of reaching the age of 71 - while taking the Court's legal opinion into consideration (3.).

11 1. The denial of the extension request, which is based on section 22 (2) in conjunction with (1) (d) of the defendant's SVO 2002/2008, constitutes a discrimination on grounds of age within the meaning of the General Equal Treatment Act of 14 August 2006 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1897, last amended by the Act of 5 February 2009 (BGBl. I p. 160)), which - contrary to the Higher Administrative Court - is not justified by section 10 AGG.

12 a) The General Equal Treatment Act is applicable to the public appointment of experts. The maximum age limit in question is a condition for access to self-employment within the meaning of section 2 (1) no. 1 AGG. This is not contradicted by the fact that the claimant could exercise his self-employment as an expert for the areas selected by him without the desired public appointment. Thus, in regards to the basic right of freedom of occupation (article 12 (1) GG), this is not a regulation of choice of profession but rather of the practice of a profession. The General Equal Treatment Act serves the purpose of implementing the Directive 2000/78/EC by the European Council of 27 November 2000 (OJ L 303 p. 16) (hereinafter: Directive) and shall thus be interpreted in light of this Directive. Pursuant to this, access to self-employment is already limited if the maximum age limit is suitable to truly limit the demand for the services offered by the claimant (ECJ, judgment of 12 January 2010 - C-341/08, Domnica Petersen - para. 33). This requirement is fulfilled here, as the Senate had already decided (judgment of 26 January 2011 - 8 C 46.09 - BVerwGE 139, 1 <para. 22 ff.> (…)).

13 The defendant's and the party no. 2's objections do not give cause for a different assessment of the facts and law of the case. Though in the case of Petersen, the Court of Justice of the European Union confirmed demand controls in a case in which the professional - a dentist - was no longer permitted to offer his services as a contractual dentist of the statutory health insurance fund vis-à-vis ca. 90 % of his customers as a result of the age limit. In this respect, the defendant correctly notes that in contrast to the case at hand, the denial of a public appointment does not establish a legal barrier to continue an expert from offering services. However, as a result of the maximum age limit discussed there is an actual reduction in demand. This already applies if - as the defendant alleged - in the case of a denial of a public appointment of an expert the demand actually is reduced by no more than 10 %. The jurisprudence of the Court of Justice of the European Union cannot be understood in such a manner that a substantial interference can only be assumed in the case of a reduction in demand by 90 %.

14 b) The maximum age limit in section 22 (1) (d), (2) both in the version of the defendant's applicable regulations of 22 March 2010, as well as in the previous versions poses a direct unfavourable treatment on grounds of age within the meaning of section 3 (1) first sentence AGG. Pursuant to section 6 (3), section 7 (1) AGG, this unfavourable treatment is generally unlawful. Contrary to the Higher Administrative Court's opinion, it is also not permissible as an exception pursuant to section 10 AGG.

15 Pursuant to section 10 first sentence AGG, a different treatment on grounds of age is permissible if it is justified by a legitimate aim and the further requirements of section 10 AGG are fulfilled. In the interest of smooth legal relations and a functioning administration of justice, the maximum age limit in question pursues the goal of offering all authorities, courts and interested private persons competent and credible experts for complicated determinations of facts and assessments; difficult and time-intensive research regarding the reputation and aptitude of the expert shall be unnecessary with the public appointment (judgment of 26 January 2011 - 8 C 46.09 - see above, para. 30, with reference to BVerfG, decision of 25 March 1992 - 1 BvR 298/86 - BVerfGE 86, 28 < para. 52>). That is not a legitimate aim within the meaning of section 10 first sentence AGG.

16 Which aims are legitimate is determined - according to the necessary interpretation in accordance with the Directive - pursuant to article 6 (1) first sentence of Directive 2000/78/EC. This states legitimate aims to be in particular "legitimate employment policy, labour market and vocational training objectives". Pursuant to the case law of the Court of Justice of the European Union, it follows from this that only socio-political aims are legitimate in this sense (ECJ, judgment of 13 September 2011 - C-447/09, Prigge - para. 81). The Senate no longer adheres to its deviating opinion which it stated in the judgment of 26 January 2011 (para. 31 et seqq.).

17 Ensuring orderly legal relations does not constitute a socio-political aim within the described meaning. The Senate already decided that in its decision of 26 January 2011 (para. 31). The defendant's statement and that of the party no. 2 does not offer the opportunity to deviate herefrom. Though the legislator's intent to grant better chances of access to younger applicants by way of setting a maximum age limit is a socio-political aim. However, the age limit discussed does not pursue such a goal. The public appointment and swearing in as an expert is rather independent of a specific review of the demand; section 36 (1) first sentence of the Trade Regulation Code (GewO, Gewerbeordnung) shall be thus interpreted restrictively (BVerfG, decision of 25 March 1992, see above, para. 55 ff.). The retirement of older experts is thus not a requirement for the advancement of younger experts.

18 2. The results of the disputed judgments of the lower instances are also not correct within the meaning of section 144 (4) VwGO for other reasons.

19 a) Section 8 (1) AGG is not capable of justifying the general maximum age limit. The provision implements article 4 (1) of Directive 2000/78/EC (as well as article 4 (1) of Directive 2000/43/EC and article 2 (6) of Directive 76/207/EEC) into German law. It clarifies under which circumstances certain occupational requirements can justify different treatment on grounds of a characteristic listed in section 1 AGG (c.f. Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 16/1780 p. 35; BT-Drs. 16/2022 p. 6, 12). A difference of treatment does not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, the characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

20 The case at hand already lacks the requirement that the practice of a publically appointed and sworn expert has - special - requirements which in their type are genuine and determining for this practice and are linked to age (c.f. ECJ, judgments of 12 January 2010 - C-229/08, Wolf - para. 35 and of 13 September 2011, see above, para. 66). In this it should be considered that according to established case law of the Court of Justice, the exceptional provision of article 4 (1) of Directive 2000/78/EC must be interpreted in a restrictive manner (ECJ, judgment of 13 September 2011, see above, para. 72; c.f. Directive 2000/78/EC recital no. 23).

21 The determining requirement is the special expertise and technical qualification. The activity of an expert does, in any case, in the areas of "data processing in accounting and data protection" and "data processing in the hotel business", for which the claimant desires his appointment, not pose any specific requirements, which only younger persons could fulfil with the respective education and experience. Whether these personal requirements for appointment are fulfilled, in particular, in regards to the special expertise and technical qualification, as well as the physical and mental capability, must be reviewed and decided by the appointing authority in accordance with the measures of the applicable legal provisions in the specific case (cf. here section 3 of the defendant's statute).

22 The objection that experts past the general retirement age are no longer regularly permanently employed and, thus, their practical work experience and their willingness to continue education and thus important bases of their expertise and technical qualifications are no longer up-to-date cannot be made. This objection is not based on facts which are directly linked to age. Age does not hinder an expert to continue in his occupation after reaching the general retirement age, to continue the necessary further education and, thus, to maintain the specific expertise and technical qualifications. The further argument presented by the defendant that with the help of a general maximum age limit one could save individual reviews and the thus connected additional administrative work also does not justify a different treatment on grounds of age.

23 b) The disputed general maximum age limit is also not justified by article 2 (5) of Directive 2000/78/EC. According to this, the Directive does not affect the measures prescribed in the individual laws of the Member States, which are necessary in a democratic society to ensure public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others. With the issuance of this reservation regarding security, the Union's legislator wanted - in the area of employment and occupation - to prevent the emergence of tensions between the principle of equality on the one hand and the necessary guarantee of public order, security and health, the prevention of violations of the law, as well as the protection of individual rights and freedoms, which are indispensable for a functioning democratic society on the other hand and have a mediating effect (ECJ, judgment of 13 September 2011, see above, para. 55). Also article 2 (5) of Directive 2000/78/EC shall be interpreted in a restrictive manner, as it justifies a deviation from the principle of the prohibition of discrimination (ECJ, judgments of 12 January 2010 - C-341/08, Domnica Petersen - para. 60 and of 13 September 2011, see above, para. 56).

24 An explicit provision which implements this reservation regarding security into national law was not included into the General Equal Treatment Act. Though section 20 (1) no. 1 AGG stipulates that there is no differing treatment - inter alia on grounds of age - if this serves to avoid threats, prevent damage or other comparable purposes. However, this provision solely includes the protection of disadvantages in civil law matters - as is evident from its systematic position in section 3 of the Act. It is not applicable to sovereign acts by a public body or authority, and, thus, the public appointment of an expert. Also, recourse to section 10 first sentence AGG is not possible. Though the wording would permit the interpretation of the reservations regarding security discussed in article 2 (5) of the Directive as legitimate aims within the meaning of this provision. With section 10 AGG the legislator, however, merely wanted to implement articles 6 and 7 of Directive 2000/78/EC into German law (…) and not the general reservation regarding security of article 2(5) of the Directive.

25 Conversely, the federal legislator also did not knowingly waive the reservation regarding security. Indications to this end are lacking in the wording of the law and in the preamble. Thus, the silence of the General Equal Treatment Act is not contrary to other provisions of national law beyond this act (…). Such a barrier effect of the General Equal Treatment Act is not lastly contradicted by competency law reasons. Essential areas of police and regulatory law are part of the legislative competence of the federal states (…).

26 Also the federal legislator can make use of the reservation regarding security of article 2 (5) of Directive 2000/78/EC in the scope of his legislative competence. It can delegate this power. Thus, section 36 (3) no. 1, section 4 GewO can be considered as a competency provision for the federal state governments to issue an ordinance or the competent chamber of industry and commerce to issue a statute, which sets forth age-related requirements for publically appointed and sworn experts, insofar as this serves the maintenance of the protected properties listed in article 2 (5) of Directive 2000/78/EC and the further requirements of this provision are fulfilled.

27 However, such a case is not at hand here. The disputed general maximum age limit for publically appointed and sworn experts of any area does not serve a security concern in such a general form within the meaning of article 2 (5) of Directive 2000/78/EC. The purpose of this maximum age limit as shown rather aims for ensuring orderly legal relations. It is not restricted to concerns of the judiciary (see on this also ECJ, judgment of 13 September 2011, see above, para. 55), but rather also covers the extra-forensic legal relations. It shall be ensured that for courts and authorities, but also for private persons, who commission an expert opinion, the special expertise and technical qualifications of the expert are unrestrictedly available without this requiring a special review in the individual case. In any case, for the areas for which the claimant desires his public appointment, the purpose is neither aimed at ensuring public security and order, nor the protection of individual rights and freedoms which are indispensable for a functioning democratic society, nor the other protected purposes of article 2 (5) of the Directive.

28 3. The matter is ripe for adjudication. If the intended general maximum age limit in section 22 (1) (d), section 2 of the defendant's statutes violates section 7 (1) in conjunction with section 6 (3) and section 3 (1) AGG and is also not justifiable in its universality in accordance with article 2 (5) of the Directive 2000/78/EC, then it is null and void. The claimant's petition for re-appointment can thus not be denied for that reason. The defendant shall be obligated to issue a new decision (section 113 (5) second sentence VwGO). (…)