Gorka Salaberria Sorondo v Academia Vasca de Policía y Emergencias.
Date: 2016-11-15
25


In that regard, by providing that persons who are aged 35 or more may not be recruited to the police forces of the Autonomous Community of the Basque Country, Article 4(b) of Decree 315/1994 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 (see, to that effect, judgment of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraph 30)
30


That legislation therefore 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 (see, to that effect, judgment of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraph 33)
33


It is clear from that provision that it is not the ground on which the difference of treatment is based but a characteristic related to that ground which must constitute a genuine and determining occupational requirement (judgment of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraph 36 and case-law cited).
34


The possession of particular physical capacities is one 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 (judgments of 12 January 2010, Wolf, C‑229/08, EU:C:2010:3, paragraph 41; 13 September 2011, Prigge and Others, C‑447/09, EU:C:2011:573, paragraph 67, and of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraphs 37 and 39 and the case-law cited).
35


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 (judgment of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraph 40).
38


In that regard, in paragraphs 43 and 44 of the judgment of 13 November 2014, Vital Pérez (C‑416/13, EU:C:2014:2371), after observing that recital 18 of Directive 2000/78 states that the directive does not require police services to recruit or maintain in employment persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services, the Court held that the concern to ensure the operational capacity and proper functioning of police services constitutes a legitimate objective within the meaning of Article 4(1) of that directive.
46


It follows from all the foregoing that the duties incumbent on the lowest rank of police officers of the Autonomous Community of the Basque Country include tasks that are physically demanding. The Academy has also argued that the age at which a police officer of the Autonomous Community of the Basque Country is recruited determines the length of time over which he is capable of performing such tasks. A police officer recruited at the age of 34, when he will, it should be added, have to undergo training over a period of around two years, will be suitable for assignment to those tasks for a maximum period of 19 years, that is, until he reaches the age of 55. That being the case, recruitment at a higher age would jeopardise the possibility of assigning a sufficient number of agents to the most physically demanding tasks. Likewise, such recruitment would mean that officers thus recruited could not be assigned for a sufficiently long period to those tasks. Last, as explained by the Academy, the rational organisation of the police service of the Autonomous Community of the Basque Country requires that a balance is struck between the number of physically demanding posts, not suitable for older police officers, and the number of posts that are less physically demanding, which can be occupied by older police officers (see, by analogy, judgment of 12 January 2010, Wolf, C‑229/08, EU:C:2010:3, paragraph 43).