Facts

Mr Salaberria Sorondo was aged over 35 years old. He sought employment as a Police Officer in the Autonomous Community of the Basque Country. He applied to the Academia Vasca de Policía y Emergencias (Basque Police and Emergency Services Academy, “the Academy”) but was rejected. The Academy operated an age limit of 35 years old for new recruits.

Mr Salaberria Sorondo claimed that this was unlawful direct discrimination on the ground of age. He argued that it was contrary to the Framework Directive 2000/78/EC.

Decision

The ECJ held that the legislation establishes a clear difference in treatment. The only issue was whether the legislation could be justified under either Article 4(1) or Article 6(1) of the Framework Directive 2000/78/EC.

The ECJ began by considering Article 4(1). This allows legislation to be justified if, because of the nature of the job, it is a genuine and determining occupational requirement that someone be of a certain age. Such legislation must pursue a legitimate aim and be a proportionate means of achieving that aim.

The ECJ referred to the Vital Perez case. This case found that an age limit of 30 years old for applications to the local police force was not justified.

In both Vital Perez and this case, there were important objectives pursued by the age limits. These related to ensuring the protection of people and property by preserving the operational capability of its emergency services.

However, there were important differences between the Vital Perez case and this one. This affected the proportionality of the age limits.

The ECJ noted important differences between the functions of the officers recruited by the Academy and those in Vital Perez. In Vital Perez, the duties were less physical with fewer frontline operational activities; officers often performed functions similar to a security guard, in addition to routine administrative work. The Academy recruits for much more physical roles with a high degree of operational activities. Administrative functions are performed by other staff and the Academy does not apply an age limit to applications for these roles. The ECJ noted that the Academy had evidence of the decline in operational performance from the age of 40 onwards.

The average age of the Basque Police force was rising and older officers generally undertake fewer operational functions. Legislation entitles older police officers to work fewer hours and to refrain from working at night. For this reason, younger recruits were needed to ensure that there were enough officers available to provide an effective service.

For this reason, the Academy’s age limit was proportionate and justified as a genuine and determining occupational requirement under Article 4(1). Given this, there was no need for the ECJ to consider whether the age limit would also be justified under article 6(1).

The judgment is available here.

Gorka Salaberria Sorondo v Academia Vasca de Policia y Emergencias, Case C-258/15, 15 November 2016