By Israel Doron
Historically, law was not generally considered an important part of gerontological science. As noted by Doron & Hofman in 2005, the law was, at best, considered part of gerontology in that it played a part in the shaping of public policy towards the older population, or was incidental to ethical discussions connected with old age. At worst, gerontology has simply ignored those aspects of the law connected with the old, and kept lawyers out of its province.
Yet in recent years there have been winds of change. Lawyers and gerontologist have started to work together and have slowly but surely developed what is becoming known as “Jurisprudential Gerontology” (or “Geriatric Jurisprudence“): a true inter, multi, and trans-disciplinary project that looks into the fascinating interactions between law, society, and aging, in all its different aspects. These changes have become much more relevant as the UN has started to engage in the process to establish a new convention for the rights of older persons.
As part of this attempt to “connect” law, human rights, and gerontology, I have recently conducted a study on the European Court of Justice. The European Court of Justice (ECJ) is considered by many to be the most important judicial institution of the European Union today. Nevertheless, despite the potential importance and relevance of the ECJ rulings to the lives and rights of older Europeans, no research has attempted to analyze or study the ECJ rulings in a gerontological context.
Using a mixed, quantitative method (measuring and testing through statistical tools) and qualitative method (understanding the content through textual analysis), a sample of ECJ cases involving older persons were collected and descriptively analyzed. In establishing the sample, an internet-based computerized keyword search was conducted within the ECJ official website. The preliminary search identified 1,325 cases, out of which 123 “direct cases” were found (i.e. cases that included issues directly relevant to rights of older persons).
Analyzing these results found that the 123 cases were spread throughout the period of 1994 to 2009 in the following way:
As seen above, there is no clear pattern of either increase of decrease in the number of cases throughout the years, and on average, in most of the time period, each year between 5–10 cases were filed. This equals to 1%-2% of the general annual new case load of the ECJ.
From a legal issue perspective, almost half the cases (58/47.2%) were categorized by the ECJ as “Social Policy” issues, while the two other major legal issues were Free Movement of Persons (29/23.6%) and Social Security for Migrant Workers (26/21.1%). Only very few elder rights cases involved issues like Competition (3 cases), or Principles of Community Law (1 case). Attempting to move beyond the ECJ’s own categorization, and analyzing the actual legal issues, it was found that the vast majority of the cases involved issues of pensions: either state funded pensions (61/49.6%) or employer-based occupational pensions (36/29.3%). The rest of the cases were mostly age discrimination, mandatory retirement, or attendance/home care (all of them 6 cases each).
In conclusion, it could be said on the one hand that the number of elder rights cases brought before the ECJ is very low, and their overall quantitative weight is minor at best. Yet on the other hand, within these limited numbers of cases and narrow scope of legal decisions, the outcomes are encouraging. In the majority of the cases the court rules in favor of the elderly. Overall then, the findings of this study suggest that the ECJ can potentially serve as an important protector of rights of older Europeans, if, and to the extent that, these cases reach its jurisdiction.
Prof. Israel (Issi) Doron is the Head of the Department of Gerontology at the University of Haifa, Israel, and the Past President of the Israeli Gerontological Society. His research focuses on the relationships between law, aging and human rights, with specific interest in international human rights of older persons. His paper ‘Older Europeans and the European Courts of Justice’ appears in the journal Age and Ageing and can be read in full and for free for a limited time.
Age and Ageing is an international journal publishing refereed original articles and commissioned reviews on geriatric medicine and gerontology. Its range includes research on ageing and clinical, epidemiological, and psychological aspects of later life.
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Image credit: Symbol of law and justice in the empty courtroom, law and justice concept. Photo by VladimirCetinski, iStockphoto.