European and national legislation often disagree when a legitimate objective is relied upon to justify a situation of direct age discrimination. The Employment Equality Framework Directive 2000/78 prohibits discrimination on grounds of age in the fields of employment, occupation and vocational training. According to art. 2, equal treatment means “that there shall be no direct or indirect discrimination whatsoever on the ground of age”. The legislation sets out minimum requirements, which need to be respected by Member States in their national legislations. However, articles 4 and 6 of the Directive introduce a number of exceptions to the Principle of Equal Treatment. Under articles 4 and 6 Member States can introduce special national provisions that allow differences of treatment on the basis of particular occupational requirements, while article 6 sets out justified differences of treatment when pursuing a legitimate aim. [1] This post examines the interrelation between the exceptions found in art. 4 and 6 of the Directive and the general principle of equal treatment, by critically addressing the interpretation followed by the European Court of Justice in justifying certain cases of age discrimination within the scope of the Directive. The Court’s position on this topic has raised debates as to the effectiveness of a legislative protection against age discrimination.

In the recent case of Mario Vital Pérez v Ayuntamiento de Oviedo (Case C‑416/13), the local Spanish Court, the Juzgado de lo Contencioso-Administrativo No 4 de Oviedo (Spain), requested a preliminary ruling by the European Court of Justice. Mr. Pérez challenged the Spanish law, and in particular the law of the Principality of Asturias, on the coordination of local police forces (BOE No 169 of 16 July 2007). Indeed, he challenged Point 3.2 of the notice of competition (which is the official document in which the details and conditions for the police officers’ recruitment are provided), on the basis that it violates the fundamental right of access, on equal terms, to public office, as affirmed in the Spanish Constitution and in Directive 2000/78. Consequently, he sought annulment of that provision on the ground that an age barrier is not justified, inasmuch as physical fitness is ensured through the physical tests specified in the notice of the competition.  In addition, Mr Pérez observed that the laws enacted by the Autonomous Communities either do not set a maximum age (Andalusia, Aragon, the Balearic Islands, the Canary Islands, Castilla-La Mancha, Catalonia and Extremadura) or set it at 35 years of age (the Basque Country) or 36 (Valencia and Galicia); indicating a lack of consistency, on the part of the Principality of Asturias, when compared to the other Communities. Article 32(b) of the Spanish law specifies that one of the conditions for entry into the local police force is for the person to be at least 18 years of age and no more than 30 years of age.  Relying on Article 6 of Directive 2000/78, such an age limit has been justified by the Spanish law in the light of the objective of ensuring that local police officers possess a particular level of physical fitness for the performance of their professional duties. Art. 6(1)(c) provides that “the fixing of a maximum age for recruitment…is based on the training requirements of the post in question…or the need for a reasonable period of employment before retirement”. According to this provision, the rationale of the Principality of Asturias is that the maximum age of 30 could be justified on the basis of a physical requirement for the police officer position. On this point, prohibiting age discrimination oscillates between employment policies considerations on the one hand and the general principles of anti-discrimination law on the other.[2]

Two main questions arise when one examines the Pérez case; firstly, why direct age discrimination against police officers over the age of 30 should be justified on the basis of a required level of physical fitness intended as legitimate aim; and secondly, in what instances would the physical requirements ground relied upon be considered as “appropriate and necessary”.  The problem is whether the age at which a police officer can be recruited allows enough time to justify the training given and enough time to do the job before the physical demands become too much. A previous case, Colin Wolf v Stadt Frankfurt am Main, deals with the same employment policies. Consequently, it requires a separate analysis in order to see how the court has interpreted the age limit in Pérez case.

In Wolf case (c-229/08)[3] a preliminary ruling was requested from the ECJ to ensure a long career for officials, or at least to ensure a minimum period of service before retirement as a legitimate aim (Article 6(1)). Mr Wolf applied for an intermediate career post in the fire service (which involved physically demanding tasks such as fighting fires and rescuing people). The City of Frankfurt am Main replied to Mr Wolf that his application could not be considered, because he was older than the age limit of 30 years. The referring Court considered that it should be ascertained whether the difference of treatment on grounds of age could be justified by the German law.  The German General Law on equal treatment[4] at Paragraph 10.3 transposed art. 6(1)(c), in the same terms of the Spanish law in article 32(b), as seen above. The Court considered that the physical fitness of an applicant for an intermediate career post in the fire service is assessed in a separate selection procedure, to which Mr Wolf was not admitted because of his age. Following this, the Court limited its question to the interpretation of Article 6(1) of the Directive, in particular focusing on a possible justification of the difference of treatment resulting from the application of the national legislation at issue in the main proceedings[5]. In this particular case, the age barrier was held to be an appropriate objective for ensuring the operational capacity and proper functioning of the professional fire service, without going beyond what was necessary to achieve that objective. The Grand Chamber considered the physical requirements needed for the performance of fire-fighting and rescue duties which, according to the Court, are such that can only be performed by younger officials. This requirement has been justified as a “genuine and determining occupational requirement” on the basis of art. 4(1) of Directive 2000/78 alone. According to the Court, it does not constitute a discrimination on the ground of art. 1, without the need to further consider art. 6. In this way, the Court gave a very broad interpretation of the genuine occupational defence by finding that a maximum recruitment age, as well as physical fitness, was a genuine occupational requirement related to age.

On the contrary, in Pérez case the Court took the view that the level of physical fitness required to work as a local police officer cannot be compared to the “exceptionally high physical capacities” required in the case of fire fighters and therefore the age barrier was not justifiable. Hence, despite in Wolf the Court gave a broad interpretation of the genuine occupational defence for the purpose of art. 4(1), in Pérez the Court used the different nature and level of duties required as the core element for its interpretation and judgment. In Wolf case the maximum requirement age set in German national legislation has been regarded, first, as appropriate to the objective of ensuring the operational capacity and proper functioning of the professional fire service and, second, as not going beyond what is necessary to achieve that objective.

At the first instance, to justify an age barrier on the basis of physical capacity considerations deriving from a determined chronological age, seems to contradict the well-established principle of non-discrimination (Mangold case[6]). However, in both cases, the Court focused on interpreting the exceptions under art.4 and art. 6 of Directive 2000/78.  According to the Court’s approach in Pérez, the difference between justifiable treatment and prohibited age discrimination depends merely on a consideration of the physical duties of each post. Then, in Wolf case the Court considered the age limit as a means to protect the time allowed for a normal career as fire fighters. The same age limit has been instead considered as a discriminatory barrier for police officers career. The focus on the operational capacity and proper functioning of police officers and fire fighters, leads to an oversimplification of the situation, with the chronological age of the person concerned becoming the mere consideration of the Court.

In conclusion, in Wolf case the age barrier is “appropriate and necessary” for “the training requirements or the need for a reasonable period of employment before retirement” and has been both positively accepted and broadly defined by the Court. Despite the similarity, the Pérez case has been considered as a case of age discrimination. The situation of Mr. Pérez sparks reflections on the important economic consequences deriving from recruiting and training police officers characterised by short terms of employability. Ensuring more consistency from the European Court of Justice, especially when examining age discrimination exceptions, would encourage equality and an economic upturn from part of the national legislation. Particular attention at national careers management, especially when a European case has determined a precedent, would encourage a higher economic stability within each country and an overall legal reliability across Europe.

[1] Sargeant , M. Distinguishing between justifiable treatment and prohibited discrimination in respect of age, Journal of Business Law 2013

[2] Schiek, Dagmar, “Age discrimination before the ecj – conceptual and theoretical issues“ [2011] 48 Common Market Law Review, Issue 3, pp. 777–799

[3] Colin Wolf v Stadt Frankfurt am Main (2010) ECR, Case C‑229/08

[4] “Allgemeines Gleichbehandlungsgesetz“ of 14 August 2006 (BGBl. 2006 I, p. 1897, ‘the AGG’)

[5] see, inter alia, Case C‑321/03 Dyson [2007] ECR I‑687, paragraph 24; Case C‑392/05 Alevizos [2007] ECR I‑3505, paragraph 64 and the case-law cited; and Case C‑532/06 Lianakis and Others [2008] ECR I‑251, paragraph 23

[6] Werner Mangold v Rüdiger Helm, (2005) ECR I-9981, Case C-144/04