WRITTEN QUESTION P-1600/01

by Toine Manders (ELDR) to the Commission

(28 May 2001)

Subject: Court of Justice open competition - discrimination on the ground of age

In recent years, provisions governing human rights protection have been incorporated into various sections of the treaties. Long before that, respect for human rights constituted a fundamental principle of European Community law. Article 6 of the EU Treaty includes a general reference to the protection of human rights, whilst Articles 12 and 13 of the EC Treaty refer specifically to the prohibition of discrimination.

Given the above, I was deeply shocked by a letter which I recently received from a Mrs Vermijs, writing from Breda in the Netherlands, a copy of which I have also forwarded to Commissioner Bolkestein. In a Dutch newspaper, she saw a notice of open competition for the recruitment of lawyer-linguists at the European Court of Justice and decided to apply.

She fulfilled every requirement for participation bar one. The notice clearly stated that persons aged 40 and over could not apply.

To say the least, I find it amazing that an EU institution which, long before human rights appeared on the EU's political agenda or in the treaties, handed down judgments on the basis of which human rights were declared to be fundamental principles of European law(1), is itself now laying down requirements in its recruitment procedure which result in a direct violation thereof, namely discrimination (on the ground of age).

Can the European Commission, as guardian of the treaties, tolerate the breach by an EU institution of a fundamental principle of European law, namely the prohibition of discrimination?

If the European Commission deems such discrimination on the ground of age to be admissible, can it indicate the basis for that admissibility criterion?

If the European Commission deems such discrimination on the ground of age to be inadmissible, and if that criterion is found to be in breach of European law, will the European Commission immediately admit Mrs Vermijs to the open competition or impose other compensatory measures on the competent authorities?

(1) See, for example, the Ruteli Case, 36/75[1975].

Answer given by Mr Kinnock on behalf of the Commission

(19 July 2001)

The Commission is fully aware of the provisions of Council Directive 2000/78/CE of 27 November 2000 establishing a general framework for equal treatment, employment and occupation(1). This Directive falls within the framework of the initiatives proposed by the Commission on 25 November 1999 with a view to exercising the new powers conferred on the Community under Article 13 of the EC Treaty.

The Directive does establish a general principle of prohibition of any direct or indirect discrimination based, inter alia, on age. However, Article 6 allows for differences of treatment on grounds of age where they are objectively and reasonably justified. For instance, the Directive justifies the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement as one of the examples of differences of treatment on grounds of age (Article 6.1.c).

Taking full account of these legal provisions, the Commission does not therefore consider age limits for recruitment to European Institutions to be incompatible with the provisions of the EC Treaty.

The specific case referred to by the Honourable Member concerns an open competition organised by the Court of Justice. Since each European Institution is responsible for the organisation of its own open competitions as well as for setting the specific requirements for participation in its competitions, the Commission considers that questions on this specific case are more appropriately addressed to the Court of Justice.

The Commission can inform the Honourable Member that, in accordance with actions 27, 29 and 50 of the White Paper on Reforming the Commission(2) of 1 March 2000, the Commission has proposed closer inter-Institutional co-operation on recruitment. The establishment of an inter-Institutional selection office and the question of age limits for recruitment by open competitions are issues that are currently being discussed within the framework of inter-Institutional negotiations.

(1) OJ L 303, 2.12.2000, p. 16.

(2) COM(2000) 200 final.