It is not illegal to discriminate between candidates for a job on the basis of age when the possession of particular physical abilities are strictly and genuinely a pre-requisite for the job in question, the Court of Justice of the European Union (CJEU) recently ruled.

EU law safeguards the right of all EU citizens to equal treatment in employment and training, irrespective of racial or ethnic origin, religion or belief, sexual orientation, disability or age. In so far as age is concerned, this means that an EU employer cannot discriminate on the basis of age when it comes to determining the selection criteria and recruitment conditions for a particular job or allowing access to vocational guidance and training to employees. The same applies when it comes to establishing salaries.

The law does, however, provide for a limited exception to the general rule. Discrimination on the basis of age is not considered to be illegal where, by reason of the nature of the job in question, age constitutes a genuine and determining occupational requirement. This exception has been the source of much litigation before the CJEU as well as national courts.

One such recent case relates to a Spanish national who sought to join the police force. In accordance with Spanish law, the recruitment notice listed, as a condition for participation in the competition for recruitment, the criteria that candidates had to be under 35 years of age. The prospective candidate alleged that there were no reasonable grounds for the age limit imposed by the notice restricting access to the police force.  The Spanish national court seized of the case filed a preliminary reference before the CJEU requesting guidance as to whether it was legal in terms of EU law for national law to provide that candidates for police force posts responsible for performing operational duties must be under 35 years of age.

Discrimination on the basis of age is not considered to be illegal where, by reason of the nature of the job in question, age constitutes a genuine and determining occupational requirement

The CJEU observed that, in terms of EU law, difference of treatment based on age is not to be regarded as discrimination where a characteristic related to age, such as the possession of particular physical capacities, constitutes a genuine and determining occupational requirement. The Court noted that the duties relating to the post of a police officer performing operational duties may require the use of physical force. Physical inadequacies in the exercise of such duties may have significant consequences not only for the police officers themselves and third parties but also for the maintenance of public order, the Court asserted.

The CJEU affirmed that, in this particular case, the possession of particular physical capacities may be considered a genuine and determining occupational requirement for the pursuit of the job in question and hence the age limit requirement. The Court noted in particular that the rank for which the competition was organised did not involve administrative tasks. In fact, another specific competition, with no age limit, was being organised for such type of work. It therefore concluded that the Spanish law providing for a maximum age requirement for the post in question was not in breach of EU law particularly due to the fact that the Spanish police force is fast becoming an aging force – hence, the necessity of recruiting younger employees in order to ensure the operational capacity and proper functioning of the police service.

Establishing what is or what is not justifiable when it comes to discrimination on the basis of age is often no easy task in practice, be it for employers as well as for the courts. The particular circumstances of each case must be carefully scrutinised in order to ensure that the right of EU citizens to equal treatment is not breached while ensuring that reasonableness reigns at all times.

mariosa@vellacardona.com

Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.