Justifying age discrimination in the recruitment of police officers Mario Vital Pérez v. Ayuntamiento de Oviedo

Justifying age discrimination in the recruitment of police officers: Mario
Vital Pérez v. Ayuntamiento de Oviedo (Case C-416/13)



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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.



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[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 Glei 229/08
[5] "Allgemeines Gleichbehandlungsgesetz" of 14 August 2006 (BGBl. 2006 I,
p. 1897, 'the AGG')
[6] 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
[7] Werner Mangold v Rüdiger Helm, (2005) ECR I-9981, Case C-144/04