Mario Vital Pérez v Ayuntamiento de Oviedo.
Date: 2014-11-13
24. It should be borne in mind that the Court has recognised the existence of a prohibition of discrimination on grounds of age which must be regarded as a general principle of EU law and which was given specific expression by Directive 2000/78 in the field of employment and occupation (judgments in Kücükdeveci , C‑555/07, EU:C:2010:21, paragraph 21, and Prigge and Others , C‑447/09, EU:C:2011:573, paragraph 38).
25. It follows that, when it is ruling on a request for a preliminary ruling concerning the interpretation of the general principle of non-discrimination on grounds of age, as enshrined in Article 21 of the Charter, and the provisions of Directive 2000/78, in proceedings involving an individual and a public administrative body, the Court examines the question solely in the light of that directive (see, to that effect, judgment in Tyrolean Airways Tiroler Luftfahrt , C‑132/11, EU:C:2012:329, paragraphs 21 to 23).
The question referred for a preliminary ruling
28.  It should be observed at the outset that it is apparent from both its title, preamble, content and purpose that Directive 2000/78 seeks to lay down a general framework in order to guarantee equal treatment ‘in employment and occupation’ to all persons, by offering them effective protection against discrimination on one of the grounds covered by Article 1, which include age (judgments in Hütter , C‑88/08, EU:C:2009:381, paragraph 33, and Georgiev , C‑250/09 and C‑268/09, EU:C:2010:699, paragraph 26).
30. In providing that persons over 30 years of age may not apply for posts in the local police force, Article 32(b) of Law 2/2007 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.
33. In the present case, Article 32(b) of Law 2/2007 has the consequence that certain persons are treated less favourably than other persons in comparable situations on the sole ground that they have exceeded the age of 30 years. It is obvious that such a rule 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.
36. In that regard the Court has held previously that it is clear from Article 4(1) of Directive 2000/78 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 (see Wolf , EU:C:2010:3, paragraph 35, and Prigge and Others , EU:C:2011:573, paragraph 66).
37. According to settled case-law, the possession of particular physical capacities is one characteristic relating to age (judgments in Wolf , EU:C:2010:3, paragraph 41, and Prigge and Others , EU:C:2011:573, paragraph 67).
39. Although it is true that some of those duties, such as providing assistance to citizens or traffic control, are not likely to require the use of physical force, the fact remains that tasks relating to the protection of persons and property, the arrest and custody of offenders and the conduct of crime prevention patrols may require the use of physical force.
40. The nature of the latter duties does require a particular physical capability in so far as physical defects in the exercise of those duties may have significant consequences not only for the police officers themselves but also for the maintenance of public order (see, to that effect, judgment in Prigge and Others , EU:C:2011:573, paragraph 67).
44. It is thus apparent that the concern to ensure the operational capacity and proper functioning of the police service constitutes a legitimate objective within the meaning of Article 4(1) of Directive 2000/78 (see, to that effect, judgment in Wolf , EU:C:2010:3, paragraph 39).
47. Moreover, in so far as it allows a derogation from the principle of non-discrimination, Article 4(1) of that directive must be interpreted strictly (judgment in Prigge and Others , EU:C:2011:573, paragraph 72).
52. Thirdly, it should be noted that, in its judgment in Wolf , EU:C:2010:3, paragraph 44, the Court held that a measure which sets the maximum age for recruitment to intermediate career posts in the fire service at 30 years may be regarded as appropriate to the objective of ensuring the operational capacity and proper functioning of the service concerned.
53. However, the Court reached that conclusion only after having found, on the basis of scientific data submitted to it, that some of the tasks of persons in the intermediate career of the fire service, such as fighting fires, required ‘exceptionally high’ physical capacities and that very few officials over 45 years of age have sufficient physical capacity to perform the fire-fighting part of their activities. In the Court’s view, 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, 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 (judgment in Wolf , EU:C:2010:3, paragraphs 41 and 43).
62. Nevertheless, as the Court has held, it cannot be inferred from Article 6(1) of Directive 2000/78 that a lack of precision in the national legislation at issue in the main proceedings as regards the aim pursued automatically excludes the possibility that it may be justified under that provision. In the absence of such precision, it is important that other elements, derived from the general context of the measure concerned, should make it possible to identify the underlying aim of that measure for the purposes of review by the courts as to its legitimacy and as to whether the means put in place to achieve that aim are appropriate and necessary (judgments in Palacios de la Villa , C‑411/05, EU:C:2007:604, paragraphs 56 and 57, and Commission  v Hungary , C‑286/12, EU:C:2012:687, paragraph 58).
67. It is important to bear in mind in this regard that the Member States enjoy a broad discretion in the choice of the measures capable of achieving their objectives in the field of social and employment policy. However, that discretion cannot have the effect of frustrating the implementation of the principle of non-discrimination on grounds of age (judgments in Age Concern England , C‑388/07, EU:C:2009:128, paragraph 51, and Ingeniørforeningen i Danmark , C‑499/08, EU:C:2010:600, paragraph 33).