11.10.2008

Official Journal of the European Union

C 260/8

(Case C-341/08)

(2008/C 260/14)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Dr Domnica Petersen

Defendant: Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe

Questions referred

1.May the statutory regulation of a maximum age limit for admission to practice a profession (here: to work as a panel dentist) be an objective and reasonable measure to protect a legitimate aim (here: the health of patients insured under the statutory health insurance scheme) and an appropriate and necessary means of achieving that aim within the meaning of Article 6 of Directive 2000/78/EC if it is derived solely from an assumption (1), based on ‘general experience’, that a general drop in performance occurs from a certain age, without any account being taken of the individual performance of the person in question?

2.If Question 1 is to be answered in the affirmative, may a legitimate (legislative) aim within the meaning of Article 6 of Directive 2000/78/EC (here: the protection of the health of patients insured under the statutory health insurance scheme) be taken to exist even where that aim was entirely irrelevant to the national legislature in the exercise of its legislative discretion?

3.If Questions 1 and 2 are to be answered in the negative, may a law enacted prior to the adoption of Directive 2000/78/EC which is incompatible with that directive be disapplied, by virtue of the primacy of European law, even where the national law transposing the directive (here: Allgemeines Gleichbehandlungsgesetz — General Law on equal treatment) makes no provision for such a legal consequence in the event of a breach of the prohibition of discrimination?

(1) OJ 2000 L 303, p. 16.