This article addresses the development of age discrimination law in the Court of Justice and concludes that there is a marked difference in the level of discretion given to Member States in cases relating to mandatory retirement policies. The article will critique the approach of the Court of Justice to the legitimate objective test and the proportionality test in retirement cases. It will also argue that the decisions of the Court of Justice to date have all involved cases with very similar factual scenarios, and the article hypothesises how a different conclusion might be reached in cases with different factors. It also considers the impact of the Charter of Fundamental Rights on such cases. The article concludes by arguing that mandatory retirement policies may no longer be compatible with EU law and that there is a need to move towards more flexible retirement policies. © 2013 John Wiley & Sons Ltd.