Local rule setting maximum age for recruitment of police officers at 30 years contrary to EU law
>> The Employment Equality Directive (The EE Directive, Directive 2000/78/EC) prohibits any form of discrimination in employment based directly or indirectly on age. Mr Vital Pérez criticised the municipality of Oviedo (pictured) for having approved the specific requirements laid down in a notice of competition to fill 15 posts as local police officers, since one of the requirements was that applicants must not be over 30 years of age. According to Mr Vital Pérez’s submission, this requirement infringed his fundamental right of access on equal terms to public office. The referring Court asked whether the EE-Directive allowed a maximum age of 30 years to be set for access to the post of local police officer in a notice of competition issued by a municipality applying a regional law of a Member State.
The Court first of all reiterated that Directive 2000/78 laid down a general framework in order to guarantee equal treatment ‘in employment and occupation’ to all persons, by offering them effective protection against discrimination on one of the grounds covered by Article 1, which include age (Hütter, C‑88/08, EU:C:2009:381, para. 33, and Georgiev, C‑250/09 and C‑268/09, EU:C:2010:699, para. 26). The Court stressed that the directive applied to a situation such as the one which gave rise to the dispute before the referring court.It was obvious that such the rule concerned introduced a difference of treatment based directly on age as referred to in Articles 1 and 2(2)(a) of Directive 2000/78, read together.
It remained to be ascertained whether such a difference of treatment might be upheld under Articles 4(1) and 6(1) of Directive 2000/78, since Article 4(1) of Directive 2000/78 provides that, ‘Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 [of that directive] shall 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, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate’.
The Court has held previously that it is clear from Article 4(1) of Directive 2000/78 that it is not the ground on which the difference of treatment is based but a characteristic related to that ground which must constitute a genuine and determining occupational requirement. According to settled case-law, the possession of particular physical capacities is one characteristic relating to age (see Wolf, C‑229/08, EU:C:2010:3 and Prigge and Others, C‑447/09, EU:C:2011:573).
In the present case, the Court stressed that although it was true that some of those duties, such as providing assistance to citizens or traffic control, were not likely to require the use of physical force, the fact remained that tasks relating to the protection of persons and property, the arrest and custody of offenders and the conduct of crime prevention patrols might require the use of physical force. The nature of the latter duties did require a particular physical capability in so far as physical defected in the exercise of those duties might have significant consequences not only for the police officers themselves but also for the maintenance of public order (see, to that effect, judgment in Prigge and Others, EU:C:2011:573, para. 67). It followed that the possession of particular physical capacities might
The Court held that it therefore had to determine whether the particular physical capacities required for the post of local police officer were inevitably related to a particular age and were not found in persons over a certain age.
According to the findings of the referring court, given the tasks assigned to local police officers not all of the capacities those officers must possess in order to be able to perform some of their duties were comparable to the ‘exceptionally high’ physical capacities which were regularly required of officials in the fire service, most notably in fighting fires.
It should be noted that, as indicated in paragraph 17 of this judgment, Point 3.5 of the notice of competition intended to fill local police officer posts for the Ayuntamiento requires applicants to possess ‘the appropriate level of physical and mental fitness to perform the duties involved in the post in question and to perform the physical tests’ specified in that notice. This involves stringent; eliminatory physical tests which, according to the referring court, would make it possible to attain the objective of ensuring that local police officers possessed the particular level of physical fitness required for the performance of their professional duties in a less binding manner than the fixing of a maximum age limit.
There is, moreover, nothing in the case-file or in the written observations submitted to the Court to indicate that the objective of safeguarding the operational capacity and proper functioning of the local police service made it necessary to maintain a particular age structure, which in turn required the recruitment exclusively of officials under 30 years of age. It followed from those considerations that, in fixing such an age limit, Law 2/2007 imposed a disproportionate requirement.
Consequently, Article 4(1) of Directive 2000/78 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which set the maximum age for recruitment of local police officers at 30 years. Nor was such requirement justified by a legitimate aim within the meaning of Article 6(1) of Directive 2000/78 .
The Court held that it could not be inferred from Article 6(1) of Directive 2000/78 that a lack of precision in the national legislation at issue in the main proceedings as regards the aim pursued automatically excluded the possibility that it might be justified under that provision. In the absence of such precision, it was important that other elements, derived from the general context of the measure concerned, should make it possible to identify the underlying aim of that measure for the purposes of review by the courts as to its legitimacy and as to whether the means put in place to achieve that aim were appropriate and necessary (see Commission v Hungary, C‑286/12, EU:C:2012:687, on which I wrote this post).
The national legislation could however not be be considered necessary in order to ensure that those officers had a reasonable period of employment before retirement for the purposes of point (c) of the second subparagraph of Article 6(1) of Directive 2000/78.