Judgment;Summary — ECLI:EU:C:2022:897
Date: 2022-11-17
Language of the case: Italian
Court formation: Seventh Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
12 May 2021 
Referring court:  
Consiglio di Stato (Italy) 
Date of the decision to refer:  
23 April 2021 
Appellant:  
VT 
Respondents:  
Ministero dell’Interno  
Ministero dell’Interno – Dipartimento della Pubblica Sicurezza – 
Direzione centrale per le risorse umane  
  
Subject matter of the main proceedings 
Annulment or variation, following provisional suspension, of judgment 
No 2672/2020 of the Tribunale amministrativo regionale per il Lazio, sede di 
Roma (Regional Administrative Court, Lazio, Rome) (the ‘TAR for Lazio’), 
which dismissed the action brought by VT for annulment of notice No 333-
B/12H.27.19 of 2 December 2019 concerning the open competition, based on 
qualifications and tests, for the allocation of 120 posts of State Police 
commissioner (the ‘notice of 2 December 2019’), and of Decree No 103 of the 
Ministero dell’Interno (Ministry of the Interior) of 13 July 2018 (‘Ministerial 
Decree No 103/2018’), of the implied decision not to admit VT to that open 
competition, and of any prior, prearranged, associated or subsequent act. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-304/21 
 
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Subject matter and legal basis of the request 
Compatibility of Legislative Decree No 334/2000 with European legislation on 
the prohibition of discrimination on grounds of age, in particular Directive 
2000/78/EC. In laying down the provisions governing the profession of State 
Police commissioner, that decree introduces an age limit of 30 years, subject to 
certain exceptions, for participation in the relevant open competition. 
Article 267 TFEU 
Question referred 
Must Council Directive 2000/78/EC of 27 November 2000, Article 3 TEU, 
Article 10 TFEU and Article 21 of the Charter of Fundamental Rights of the 
European Union be interpreted as precluding the national legislation contained in 
Legislative Decree No 334/2000, as subsequently amended and supplemented, 
and in the secondary sources adopted by the Ministry of the Interior, which lays 
down an age limit of 30 years for participation in a selection procedure for posts 
of commissioner in the career bracket of State Police officers? 
Provisions of EU law cited 
Article 21 of the Charter of Fundamental Rights of the European Union. 
Article 3 of the Treaty on European Union. 
Article 10 of the Treaty on the Functioning of the European Union. 
Presidency conclusions of the Helsinki European Council of 10 and 11 December 
1999, paragraph 40 of which states as follows: ‘In undertaking labour market 
reforms, Member States should pay particular attention … to … life-long learning 
and equal opportunities for women and men’. 
Council Directive 2000/78/EC of 27 November 2000 (‘Directive 2000/78/EC’); in 
particular recitals 9, 11, 18, 23 and 25; Article 2; Article 3(1)(a); Article 4(1) and 
Article 6(1). 
Provisions of national law cited 
Legislative Decree No 216 of 9 July 2003 (‘Legislative Decree No 216/2003’); in 
particular Article 2, which provides for the concepts of ‘discrimination’ and 
‘direct discrimination’ in the same terms as Article 2 of Directive 2000/78/EC; 
Article 3(1), which sets out the scope of the legislative decree in the same terms as 
Directive 2000/78/EC; Article 3, which reproduces in paragraphs 3, 4a and 6 the 
content of Articles 4 and 6 of Directive 2000/78/EC. 
MINISTERO DELL’INTERNO AND MINISTERO DELL’INTERNO – DIPARTIMENTO DELLA PUBBLICA SICUREZZA – DIREZIONE 
CENTRALE PER LE RISORSE UMANE 
 
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Law No 127 of 15 March 1997; in particular Article 3(6), under which: 
‘participation in competitions organised by public administrations shall not be 
subject to age limits, subject to the exceptions laid down in the regulations of 
individual administrations by reason of the nature of the service or the objective 
needs of the administration’. 
Legislative Decree No 334 of 5 October 2000 (‘Legislative Decree 
No 334/2000’). In particular Article 1, which sets out the grades which make up 
the career bracket of State Police commissioner, with managerial development; 
Article 2(2), which sets out the tasks of the State Police commissioners as follows: 
‘Persons in the career bracket of officers up to the grade of chief commissioner 
shall have the grades of public security officer and judicial police officer. In 
relation to the grades which they hold, they shall perform the duties inherent in 
institutional tasks of the State Police and the Public Security Administration, with 
independent decision-making responsibility and corresponding professional input. 
They shall also provide for the training of employees and perform, in relation to 
their proficiency, duties relating to education and training of State Police 
personnel. Those personnel shall work directly with the holders of higher grades 
in the same career bracket and substitute for them in managing offices and 
departments in the event of absence or impediment. If they are holders of the 
relevant office, and when substituting for the director of detached public security 
offices, chief commissioners shall also perform the functions of a local public 
security authority. Those personnel shall also carry out, with full responsibility 
for the directives issued and the results obtained, duties relating to the 
management of offices and departments not reserved to personnel of higher 
grades, and duties relating to the direction and coordination of several 
organisational units in the office to which they are assigned. The above duties 
shall be identified by decree of the Director-General for Public Security, 
prioritising the use of vice commissioners and commissioners as persons in 
charge, as well as in the offices or departments carrying out tasks relating to 
public order and security and control of territory and those of specialist sections 
and specialist departments. That decree shall also identify the duties relating to 
management of offices which are, as a priority, to be assigned to chief 
commissioners’; Article 3(1), under which: ‘(…) The limit for participation in the 
competition, of not more than 30 years of age, shall be laid down in the regulation 
adopted pursuant to Article 3(6) of Law No 127 of 15 May 1997, subject to the 
exceptions set out therein (…)’. Also of relevance are Article 3(3), which provides 
for a physical fitness test as part of the competition in question, a negative result 
in which may itself result in failure to be selected, and Article 3(4), under which: 
‘twenty percent of the posts available at the grade of commissioner shall be 
reserved to State Police personnel who hold the requisite degree with legal 
content and are not more than 40 years of age (…)’. 
Ministerial Decree No 103/2018; in particular Article 3(1), which lays down a 
limit of 30 years of age for participation in the open competition for obtaining the 
grade of State Police commissioner. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-304/21 
 
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Legislative Decree No 165 of 30 April 1997, which, under Articles 1 and 2 
thereof, sets at 61 years the age limit beyond which State Police personnel are 
retired on grounds of age. 
Notice of 2 December 2019; in particular Article 3(1)(d), which stipulates, among 
the general requirements for admission, that the person concerned must ‘have 
reached the age of 18 and not reached the age of 30’ and which provides, 
however, that that limit ‘shall be raised, up to a maximum of three years, in 
relation to the actual military service performed by the applicants’ and that ‘the 
age limit shall be disregarded in respect of personnel belonging to the State 
Police force. In respect of those persons who are members of the Civil 
Administration of the Interior, the age limit for participation in the competition 
shall be 35’; Article 10, which exempts from physical fitness tests anyone who is 
already part of the State Police; Article 11(4), which governs the physical fitness 
test, a negative result in which may itself result in failure to be selected. 
Succinct presentation of the facts and procedure in the main proceedings 
1 VT, the appellant, attempted, through the relevant electronic procedure, to respond 
to the notice of 2 December 2019, but was unable to do so because the computer 
system stated that he did not comply with the maximum age limit of 30 for 
participation in the competition for State Police commissioner, as laid down in 
Article 3(1)(d) of that notice, Article 3(1) of Ministerial Decree No 103/2018, and 
Article 3(1) of Legislative Decree No 334/2000. VT was born in 1988. 
2 VT brought an action before the TAR for Lazio, was admitted conditionally to the 
competition, and successfully completed the pre-selection tests. By judgment 
No 2672/2020, that court dismissed the action brought by VT, taking the view that 
the age limit laid down in the notice was a reasonable limitation and was thus not 
contrary to either the Italian Constitution or the European legislation prohibiting 
discrimination on, inter alia, grounds of age, in particular Directive 2000/78/EC. 
3 VT appealed against that judgment before the Consiglio di Stato (Council of 
State). 
 Essential arguments of the parties to the main proceedings 
4 Before the Consiglio di Stato VT claims that the Italian legislation laying down 
the age limit of 30 years in Article 3 of Law No 127 of 15 May 1997 is contrary to 
Directive 2000/78/EC, Article 21 of the Charter of Fundamental Rights, and 
Article 10 TFEU. He maintains that that maximum age limit constitutes 
unreasonable discrimination which is not permitted by those provisions. In that 
regard, he cites Article 3(1)(d) of the notice of 2 December 2019, which lays 
down, with alleged further unreasonableness, an upper age limit for certain 
categories of candidates, and Article 10 of that notice, which exempts from 
physical fitness tests persons who already belong to the State Police. 
MINISTERO DELL’INTERNO AND MINISTERO DELL’INTERNO – DIPARTIMENTO DELLA PUBBLICA SICUREZZA – DIREZIONE 
CENTRALE PER LE RISORSE UMANE 
 
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5 The Ministry of the Interior has contended that the appeal should be dismissed, 
defending the grounds of judgment No 2672/2020 of the TAR for Lazio. 
Succinct presentation of the reasons for the request for a preliminary ruling 
6 The Consiglio di Stato has doubts as to the compatibility with European 
legislation of Legislative Decree No 334/2000, Ministerial Decree No 103/2018, 
and the notice of 2 December 2019, taking the view that the setting of an age limit 
of 30, such as that at issue in the present case, introduces discrimination on 
grounds of age, within the meaning of Article 2 of Directive 2000/78/EC, which is 
not justified under Articles 4 and 6 thereof. This matter is relevant for the 
purposes of the decision in the main proceedings because, if such incompatibility 
were to be established, VT could take part in the competition at issue, since 
Article 3(6) of Law No 127/1997, which does not lay down age limits, subject to 
the need to pass physical tests, would apply. 
7 In support of its arguments, the Consiglio di Stato recalls the case-law of the 
Court of Justice of the European Union on discrimination on grounds of age in 
relation to recruitment to police forces and military corps responsible for public 
rescue.  
8 First of all, the referring court states that it is apparent from the wording of 
Article 2(2) of Decree No 334/2000 that the duties of a police commissioner are 
essentially managerial and administrative. No provision is made for executive-
type operational duties as essential to this profession which, as such, require 
particularly significant physical capacities, comparable to those required of an 
ordinary officer of the Spanish police, as outlined in the judgment of the Court of 
Justice in Case C-258/15, which the Court of Justice considered in any event 
compatible with an age limit five years higher than that at issue in this case. 
9 The Consiglio di Stato then recalls the judgment of the Court of Justice in Case 
C-416/13, which deemed disproportionate a limit of 30 years for obtaining the 
grade of ordinary officer in the Spanish local police, whose duties were 
predominantly administrative but did not absolutely exclude interventions using 
physical force. Therefore, the referring court states that the 30-year limit a fortiori 
should be regarded as inappropriate in the present case, in which interventions of 
that type are unrelated to the typical tasks of a State Police commissioner. 
10 In addition, the Consiglio di Stato cites the judgment of the Court of Justice in 
Case C-229/08, in which it considered justified, under Article 4(1) of Directive 
2000/78/EC, an age limit of 30 for an intermediate career post in the fire service, 
taking the view that the tasks associated therewith required possession of 
especially high physical capacities, which were no longer possessed by those over 
the age of 45. 
11 In the light of that case-law, the Consiglio di Stato maintains that the 30-year limit 
in question is disproportionate, also in the light of Article 3(3) and (4) of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-304/21 
 
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Legislative Decree No 334/2000. On the one hand, the referring court states that, 
in the absence of requirements similar to those highlighted by the judgment in 
Case C-258/15, the provision for physical fitness tests which, if failed, exclude 
candidates from the competition must in any event be regarded as sufficient for 
ensuring the ability to perform the service in the manner required by it. On the 
other hand, it would appear from a reservation of the grade of commissioner to 
State Police personnel already in post but of an older age, contained in 
Article 3(4) of that legislative decree, that an initial age of 40 is not absolutely 
incompatible with the duties of State Police commissioner.  
12 Finally, the Consiglio di Stato recalls that the age limit beyond which State 
personnel of the State Police are retired on grounds of age is 61, in accordance 
with Articles 1 and 2 of Legislative Decree No 165 of 30 April 1997. In the view 
of the referring court, that limit on the retirement age ensures an adequate period 
of service before retirement also for those who start their career after the age of 
30.