C-416/13 Mario Vital Pérez: Age discrimination, police officers and physical fitness

The judgment of the Court of Justice of 13 November 2014 in Mario Vital Pérez v Ayuntamiento de Oviedo, C-416/13, EU:C:2014:2371, concerns a sensitive subject for me: age discrimination !

The Court held that Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) precludes national legislation which sets at 30 years the maximum age for recruitment of local police officers.

Here’s what happened.The Ayuntamiento de Oviedo in Spain (municipality of Oviedo) advertised a competition to fill 15 posts as local police officers. One of the requirements of that notice of competition was that applicants must not be over 30 years of age. Mr Vital Pérez (whose age is not disclosed in the judgment) complained that the age limit  infringes his fundamental right of access on equal terms to public office. The municipality for its part claimed that the notice of competition complies with national law and that the Court of Justice has already ruled in Wolf, C-229/08, EU:C:2010:3 in favour of such an age limit in a similar case concerning access to an intermediate career post in the fire service in Germany. The matter was litigated in a Spanish court which asked for an interpretation of both Article 21 of the Charter and provisions of Directive 2000/78.

The Court of Justice held in its judgment firstly that the existence of a prohibition of discrimination on grounds of age which must be regarded as a general principle of EU law and which was given specific expression by Directive 2000/78 in the field of employment and occupation (judgments in Kücükdeveci, C‑555/07, EU:C:2010:21, paragraph 21, and Prigge and Others, C‑447/09, EU:C:2011:573, paragraph 38). Accordingly, when it rules on a request for a preliminary ruling concerning the interpretation of the general principle of non-discrimination on grounds of age, as enshrined in Article 21 of the Charter, and the provisions of Directive 2000/78, in proceedings involving an individual and a public administrative body, the Court examines the question solely in the light of that directive (judgment in Tyrolean Airways Tiroler Luftfahrt, C‑132/11, EU:C:2012:329, paragraphs 21 to 23).

As to whether the age limit in question complies with Directive 2000/78, the Court held that it did access to employment in the public sector within the meaning of its Article 3 (1)(a) and that it introduces a difference of treatment based directly on age as referred to in Articles 1 and 2(2)(a).

The Court then examined whether the difference of treatment could be upheld under Articles 4 (1) and 6 (1) of Directive 2000/78.

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 recalled 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 (see Wolf, EU:C:2010:3, paragraph 35, and Prigge and Others, EU:C:2011:573, paragraph 66).

According to settled case-law, the possession of particular physical capacities is one characteristic relating to age (judgments in Wolf, EU:C:2010:3, paragraph 41, and Prigge and Others, EU:C:2011:573, paragraph 67).

The Court found that the duties of local police officers include providing assistance to citizens, protecting persons and property, the arrest and custody of offenders, conducting crime prevention patrols and traffic control.  While some of those duties, such as providing assistance to citizens or traffic control, are not likely to require the use of physical force, other tasks relating to the protection of persons and property, the arrest and custody of offenders and the conduct of crime prevention patrols may require the use of physical force. The nature of the latter duties does require a particular physical capability in so far as physical defects in the exercise of those duties may have significant consequences not only for the police officers themselves but also for the maintenance of public order (judgment in Prigge and Others, EU:C:2011:573, paragraph 67).

Consequently, the possession of particular physical capacities may be regarded as a ‘genuine and determining occupational requirement’ within the meaning of Article 4(1) of Directive 2000/78 for the purposes of employment as a local police officer.

The Court went on, however, to find that the age limit was disproportionate. In particular, the Court distinguished the present case from that of Wolf, EU:C:2010:3, paragraph 44, in which the Court held that a measure which sets the maximum age for recruitment to intermediate career posts in the fire service at 30 years may be regarded as appropriate to the objective of ensuring the operational capacity and proper functioning of the service concerned.

It points out that it had reached that conclusion only after having found, on the basis of scientific data submitted to it, that some of the tasks of persons in the intermediate career of the fire service, such as fighting fires, required ‘exceptionally high’ physical capacities and that very few officials over 45 years of age have sufficient physical capacity to perform the fire-fighting part of their activities. In the Court’s view, recruitment at an older age would have the consequence that too large a number of officials could not be assigned to the most physically demanding duties. Similarly, such recruitment would not allow the officials thus recruited to be assigned to those duties for a sufficiently long period. Finally, the rational organisation of the professional fire service requires, for the intermediate career, a correlation between the physically demanding posts not suitable for older officials and the less physically demanding posts suitable for those officials (judgment in Wolf, EU:C:2010:3, paragraphs 41 and 43).

In the present case, 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 are comparable to the ‘exceptionally high’ physical capacities which are regularly required of officials in the fire service, most notably in fighting fires. The Court also pointed out that to be selected, a candidate police officer must pass stringent, eliminatory physical tests which, according to the referring court, would make it possible to attain the objective of ensuring that local police officers possess 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.

The Court also held that it was presented with no evidence to indicate that the objective of safeguarding the operational capacity and proper functioning of the local police service makes it necessary to maintain a particular age structure, which in turn requires the recruitment exclusively of officials under 30 years of age.

Finally, the Court held that the age limit in question cannot be considered necessary in order to ensure that those officers recruited have a reasonable period of employment before retirement according to Article 6(1)(c ) of Directive 2000/78.

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