The 17 municipalities of Spain set legislation on the recruitment of local police officers. The municipality of Asturias set a maximum recruitment age of 30 years old for police officers. Other municipalities had similar laws, although others had different age limits, or no limit at all.

Mr Vital Pérez applied to the police force of Oviedo (Oviedo is the capital city of Asturias), but was rejected as he was aged over 30. Mr Vital Pérez brought a claim challenging this age limit. The local court referred the matter to the ECJ to ask whether the age limit could be treated either as a genuine occupational requirement under Article 4(1) or objectively justified under Article 6(1).

Decision - occupational Requirement under Article 4(1)

The ECJ first looked at the wording of Article 4(1). The ECJ said that it had previously held that that it is not the ground on which the difference of treatment is based (i.e. the age limit) which must constitute a genuine and determining occupational requirement, but a characteristic related to that ground (the ECJ had previously held this in Wolf and Prigge). The possession of particular physical capabilities is one characteristic relating to age.

The ECJ looked at the work of a local police officer and held that possessing certain physical capabilities may be regarded as a genuine and determining occupational requirement within the meaning of Article 4(1) of the Framework Directive 2000/78/EC. The ECJ also held 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).

However, the ECJ then went on to say that Article 4(1) must be interpreted strictly. The ECJ looked at whether the particular physical capabilities required were related to a particular age. The ECJ took into account the fact that other municipalities operated different age limits (or, as stated above, no age limit at all), that the age limit has been abolished for national police officers, and that the physical capabilities required to work as a local police officer were not “exceptionally high”.

For these reasons, the ECJ held that the age limit of 30 years of age was a disproportionate requirement.

Decision - objective justification under Article 6(1)

The ECJ assessed whether the age limit could be justified by a legitimate aim and whether the means of achieving that aim were appropriate and necessary.

The ECJ held that, although the law did not expressly set out its aim(s), the age limit is based on the training requirements of the post in question and the need for a reasonable period of employment before retirement or transfer to another activity. These aims were legitimate social policy objectives. The Spanish Government had cited an additional aim of encouraging new recruitment, but the ECJ refused to accept this was a legitimate aim as no evidence was adduced in support of it.

The ECJ then looked at whether the law was proportionate. The ECJ ruled that it was not proportionate because no evidence had been submitted to support this. Accordingly, the ECJ held that the maximum recruitment age of 30 for local police officers was contrary to the Framework Directive 2000/78/EC.

The judgment is available here.

Mario Vital Pérez v Ayuntamiento de Oviedo, 13 November 2014, C-416/13