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Court of Justice Gives Judgment on Possible Age Discrimination

The Court of Justice of the European Union has recently given its judgment in a case involving possible age discrimination.

The case in question had been referred to the Court of Justice from the Spanish courts, and concerned the recruitment of police officers in the Autonomous Community of the Basque Country.

Age Limit Imposed in Recruitment

A recruitment exercise for the police had specified that candidates must be under the age of 35. Mr Gorka Salaberria Sorondo, who was over 35-years-old, had applied for a position with the police, and claimed that this requirement was discriminatory.

His claim was based on the directive on equal treatment in employment and occupation, which aims to combat various types of discrimination, and prohibits any direct or indirect discrimination in employment on the grounds of age.

The Spanish court hearing the claim referred the case to the Court of Justice, asking whether legislation that provides that candidates for police force posts responsible for performing operational duties must be under 35-years of age is contrary to the directive.

Genuine Occupational Requirement

In its judgment, the Court has said that the directive does not preclude national legislation from stating that candidates for police force posts responsible for performing operational duties must be under 35.

In explaining its judgment, the Court said that under the directive, a 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 stated that 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 physical capability, and lack of this capability when performing these 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, said the Court, that the possession of particular physical capacities in order to be able to perform the essential duties of the police may be considered to be a genuine and determining occupational requirement for the pursuit of that profession. 

Aging Workforce

In addition, when the average age of the police force is significantly rising, it is essential to plan for the replacement of older police officers by means of the recruitment of younger staff. Therefore, in order to re-establish an appropriate balance of ages in the workforce,, the possession of particular physical capacities should be envisaged dynamically, taking into consideration the years of service that can be accomplished by a police officer after he or she has been recruited. 

The Court consequently held that the Spanish legislation may be regarded as being appropriate to the objective of ensuring the operational capacity and proper functioning of the police service of the Autonomous Community of the Basque Country.

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