Colin Wolf v Stadt Frankfurt am Main.
Date: 2010-01-12
26. In the first place, as regards the question whether the legislation at issue in the main proceedings falls within the scope of the Directive, it must be noted that it follows from Article 3(1)(a) of the Directive that it applies, within the framework of the areas of competence conferred on the Community, ‘to all persons, as regards both the public and private sectors, including public bodies, in relation to … conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy’ (see Case C‑88/08 Hütter  [2009] ECR I‑0000, paragraph 34).
32. It should be recalled here that, according to settled case-law, even if, formally, the referring court has limited its question to the interpretation of Article 6(1) of the Directive in relation to a possible justification of the difference of treatment resulting from the application of the national legislation at issue in the main proceedings, that does not prevent the Court from providing that court with all the elements of interpretation of Community law which may be of assistance in adjudicating in the case pending before it, whether or not it has referred to them in the wording of its question (see, inter alia, Case C‑321/03 Dyson  [2007] ECR I‑687, paragraph 24; Case C‑392/05 Alevizos  [2007] ECR I‑3505, paragraph 64 and the case-law cited; and Case C‑532/06 Lianakis and Others  [2008] ECR I‑251, paragraph 23). It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of Community law which require interpretation in view of the subject-matter of the dispute (see Case C‑115/08 ČEZ  [2009] ECR I‑0000, paragraph 81 and the case-law cited).
35. It must be observed in this respect that, according to the very wording of Article 4(1) of the Directive, ‘a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 [of the Directive] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate’. It follows 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.
39. It is thus apparent that the concern to ensure the operational capacity and proper functioning of the professional fire service constitutes a legitimate objective within the meaning of Article 4(1) of the Directive.
41. As regards, third, the question whether the need to possess high physical capacities is related to age, it should be noted that the German Government submits, without being contradicted, that some of the tasks of persons in the intermediate career of the fire service, such as fighting fires or rescuing persons, require exceptionally high physical capacities and can be performed only by young officials. The German Government produces scientific data deriving from studies in the field of industrial and sports medicine which show that respiratory capacity, musculature and endurance diminish with age. Thus very few officials over 45 years of age have sufficient physical capacity to perform the fire-fighting part of their activities. As for rescuing persons, at the age of 50 the officials concerned no longer have that capacity. Officials who have passed those ages work in the other branches of activities mentioned above. It follows that the need to possess full physical capacity to carry on the occupation of a person in the intermediate career of the fire services is related to the age of the persons in that career.
43. As has just been stated, the fire-fighting and rescue duties which are part of the intermediate career in the fire service can only be performed by younger officials. Officials older than 45 or 50 carry out other duties. To ensure the efficient functioning of the intermediate career in the fire service, it may be considered necessary for the majority of officials in that career to be able to perform physically demanding tasks, and hence for them to be younger than 45 or 50. Moreover, the assignment of officials older than 45 or 50 to duties which are less physically demanding requires them to be replaced by young officials. The age at which an official is recruited determines the time during which he will be able to perform physically demanding tasks. An official recruited before the age of 30, who will have to follow a training programme lasting two years, can be assigned to those duties for a minimum of 15 to 20 years. By contrast, if he is recruited at the age of 40, that period will be a maximum of 5 to 10 years only. Recruitment at an older age would have the consequence that too large a number of officials could not be assigned to the most physically demanding duties. Similarly, such recruitment would not allow the officials thus recruited to be assigned to those duties for a sufficiently long period. Finally, as the German Government submits, the rational organisation of the professional fire service requires, for the intermediate career, a correlation between the physically demanding posts not suitable for older officials and the less physically demanding posts suitable for those officials.
44. Consequently, it is apparent that national legislation such as that at issue in the main proceedings which sets the maximum age for recruitment to intermediate career posts in the fire service at 30 years may be regarded, first, as appropriate to the objective of ensuring the operational capacity and proper functioning of the professional fire service and, second, as not going beyond what is necessary to achieve that objective.