Case C‑258/15

Gorka Salaberria Sorondo

v

Academia Vasca de Policía y Emergencias

(Request for a preliminary ruling from the
Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco)

(Reference for a preliminary ruling — Equal treatment in employment and occupation — Directive 2000/78/EC — Article 2(2) and Article 4(1) — Discrimination on grounds of age — Recruitment of police officers of the Autonomous Community of the Basque Country restricted to candidates under 35 years of age — Concept of ‘genuine and determining occupational requirement’ — Objective pursued — Proportionality)

Summary — Judgment of the Court (Grand Chamber), 15 November 2016

1. Social policy—Equal treatment in employment and occupation—Directive 2000/78—Scope—National legislation providing that persons aged 35 or more may not be recruited as police officers of an Autonomous Community—Included

   (Council Directive 2000/78, Art. 3(1)(a))

2. Social policy—Equal treatment in employment and occupation—Directive 2000/78—Prohibition of discrimination on grounds of age—National legislation providing that persons aged 35 or more may not be recruited as police officers of an Autonomous Community—Lawfulness

   (Council Directive 2000/78, Arts 1, 2(2) and 4(1))

1.  National legislation providing that persons who are aged 35 or more may not be recruited to the police forces of an Autonomous Community of a Member State affects those workers’ recruitment conditions. Such legislation must therefore be regarded as laying down rules relating to access to employment in the public sector within the meaning of Article 3(1)(a) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, and consequently falls within the scope of that directive.

   (see paras 25, 26)

2.  Article 2(2) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, read together with Article 4(1) of that directive, must be interpreted as not precluding legislation which provides that candidates for posts as police officers who are to perform all the operational duties incumbent on police officers must be under 35 years of age.

   In that regard, that legislation introduces a difference of treatment based directly on age, as referred to in Articles 1 and 2(2)(a) of Directive 2000/78, read together. However, the possession of particular physical capacities is a characteristic relating to age, and the duties relating to protection of people and property, the arrest and guarding of offenders and preventive patrolling may require the use of physical force. The nature of those duties requires a particular level of physical capability in so far as physical inadequacies in the exercise of those duties may have significant consequences not only for the police officers themselves and third parties but also for the maintenance of public order. It follows that the possession of particular physical capacities in order to be able to perform the three essential duties of the police of the Autonomous Community of the Member State concerned, namely ensuring the protection of people and property, ensuring that each individual can freely exercise his or her rights and freedoms, and ensuring the safety of citizens, may be considered to be a genuine and determining occupational requirement, within the meaning of Article 4(1) of Directive 2000/78, for the pursuit of the profession at issue.

   Further, such legislation may be regarded, first, as being appropriate to the objective of ensuring the operational capacity and proper functioning of the police service concerned and, second, as not going beyond what is necessary for the attainment of that objective. The inadequacies to be feared in the operation of the police service of the Autonomous Community concerned are such that it is not conceivable that, as part of a recruitment competition, the organisation of demanding, eliminatory physical tests might constitute a less restrictive alternative. That objective requires that, with a view to re-establishing a satisfactory age pyramid, the possession of particular physical capacities should be envisaged not statically, at the time of recruitment competition tests, but dynamically, taking into consideration the years of service that can be accomplished by a police officer after he or she has been recruited.

   (see paras 30, 34-36, 47, 48, 50, operative part)