Discrimination on the ground of age – Law and general interest
On Tuesday November 15, 2016, the Court of Justice delivered a new judgment on discrimination on the grounds of age (CJEU, judgment of November 15, 2016 in the Gorka Salaberria Sorondo Case, C-258/15).
The Basque Police and Emergency Services Academy, Spain has, in fact, introduced a competition for the recruitment of police officers. The candidates in this competition must be below the age of 35.
Two years ago, almost to this very day, the same Court of Justice, called upon to rule on an age limit set at 30 years of age for the recruitment of police officers, had judged this age limit discriminatory (CJEU, judgment of November 13, 2014 in the Vital Perez Case, C-416/13). In fact, the Court recalled here 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” for a criterion not to be considered discriminatory. It specified here that “the possession of particular physical capacities is one characteristic relating to age”. The consistency of this requirement with the role of police officer was, however, lacking: a police officer is, in fact, not exempt from carrying out tasks which do not require any particular physical force.
In the judgment delivered on November 15, 2016, the Court of Justice uses this logic and checks its actual application: since the competition concerns police officers who are intended to perform operational or executive duties, the criterion of physical force is relevant. The criterion of differentiation, on the grounds of age, is therefore acceptable.
In its judgment, the Court does not modify its case law; it applies it. It recalls in doing so that the consideration of a policy may jeopardise the individual interests and that, in order to do this, the existence of fair grounds is the determining element. It recalls here that the search for a criterion of objective differentiation containing a measure of approximation and generalisation is an acceptable policy tool.
In doing so, the Court accepts that general interest may override individual interest, provided that relevant grounds exist in order to do this. In its judgment, the Court has stated the law; to an extent it has stated what the law is…