CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 novembre 2024

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margin-left:16.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:2.11pt; font-family:Arial; text-transform:uppercase }   THIRD SECTION CASE OF FERRERO QUINTANA v. SPAIN (Application no.   2669/19)   JUDGMENT Art   1 P12 •   General prohibition of discrimination •   Age-limit of 35   years set for open competitive examination to recruit police officers of lowest rank •   Operational and executive duties performed by such police officers requiring particularly high level of physical fitness, assessed in light of years of service remaining after recruitment •   Difference in treatment on grounds of age appropriate to objective of ensuring operational capacity and proper functioning of police service concerned and not beyond what was necessary for achieving that objective •   Wide margin of appreciation •   Relevant and sufficient reasons   Prepared by the Registry. Does not bind the Court.   STRASBOURG 26   November 2024   FINAL   28/04/2025     This judgment has become final under Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Ferrero Quintana v. Spain, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Georgios A. Serghides, Acting President ,   Georges Ravarani,   María Elósegui,   Darian Pavli,   Peeter Roosma,   Andreas Zünd,   Frédéric Krenc, judges , and Milan Blaško, Section Registrar , Having regard to: the application (no.   2669/19) against the Kingdom of Spain lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Mr   Asier Ferrero Quintana (“the applicant”), on 24   December 2018; the decision to give notice to the Spanish Government (“the Government”) of the application on 2   September 2019; the parties’ observations; Having deliberated in private on 2   November 2021 and 8   October 2024, Delivers the following judgment, which was adopted on the last-mentioned date: INTRODUCTION 1.     The case concerns the upper age-limit of 35   years set for an open competitive examination to fill several police officer posts in the police force of the Autonomous Community of the Basque Country. The applicant was authorised on a provisional basis to take part in that examination despite being above the age-limit in question. He passed the various tests, but was ultimately not recruited on the grounds that he was over the age-limit. Before the Court, he submitted that the medical examinations and physical fitness tests he had undergone had confirmed that he was fit to hold the post in question. He had therefore been discriminated against on grounds of age, which constituted a violation of Article   1 of Protocol No.   12 to the Convention. THE FACTS 2.     The applicant was born in 1978 and lives in Basauri. He was represented by Mr   J.   García Espinar, a lawyer. 3.     The Government were represented by Ms   H.E.   Nicolás Martínez, Co ‑ Agent of the Kingdom of Spain to the European Court of Human Rights. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5 .     The applicant applied to take part in an open competitive examination, announced on 1   April 2014, to fill 60   police officer posts of the lowest rank ( escala básica ) in the Autonomous Community of the Basque Country’s police force (known as the Ertzaintza ). One of the eligibility requirements was that candidates had to be over   18 and under 35   years of age at the time of application. 6 .     Even though the applicant had turned 35 the previous year, he and others in the same situation (that is, a total of 750   candidates) were authorised on a provisional basis to take part in the competitive examination. The provisional measure concerned candidates who were over the set upper age-limit but fulfilled the other eligibility requirements. The final decision on their participation in the competitive examination would be contingent on the ruling of the competent courts in a pending action, which another candidate aged over 35   years had initiated to challenge the validity of the age-limit criterion. The applicant brought no proceedings at that stage. Following the adoption of the provisional measure, he took part in all tests. 7 .     The competitive examination comprised three successive phases, all of which were compulsory and eliminatory. The first phase involved “shortlisting” candidates through tests, the second consisted in 9   months of training and the third was 12 months of work placement. The initial phase was made up of five eliminatory tests, namely: Test   1: test of knowledge . Test   2: psycho-technical test comprising four exercises . Test   3: psycho-technical test comprising two personality tests related to the job profile of the post to be filled . Test   4: physical fitness test comprising four exercises. Test   5: individual interview intended to assess candidates’ behavioural skills and ability to perform the duties and tasks in the job profile of the post concerned. 8.     Following the tests in the first phase, the applicant was among the 6,595   candidates to be shortlisted for one of the 60   posts to be filled. Since he was ranked 49 out of 60, he was authorised   – still on a provisional basis   – to take part in the subsequent phases of the competitive examination, namely training (which he attended from 7   January 2015 to September 2015) and work placement (from 21   September 2015 to 21   September 2016). 9.     However, on 19   December 2016, following his training and work placement (that is, at the end of the competitive examination), his candidature was finally rejected on the grounds that he was over 35   years old. The provisional measure that had allowed him to take part in the competitive examination pending the court ruling on the validity of the age-limit (see paragraph   11 below) had expired. 10 .     The applicant initiated a special procedure for protecting fundamental rights, complaining that he had been discriminated against in relation to his right of equal access to public employment because he had been disqualified solely on account of his age. He argued that the decision to set such an age-limit was arbitrary, unreasonable and disproportionate. He relied on Articles   9 §   3, 14 and 23 §   2 of the Spanish Constitution and on Council Directive   2000/78/EC of 27   November 2000 establishing a general framework for equal treatment in employment and occupation (“Directive   2000/78/EC”). 11 .     In a judgment of 9   February 2017 (judgment no.   69/2017, procedure for protecting fundamental rights no.   710/2014), the Administrative Division of the High Court of Justice of the Basque Country dismissed the applicant’s action. It first pointed out that it had requested a preliminary ruling from the Court of Justice of the European Union (CJEU) on 20   May 2015 as part of proceedings brought by another candidate in the same open competitive examination (proceedings which had resulted in the measure authorising candidates aged over 35   years to take part in the competitive examination on a provisional basis   – see paragraph   6 above and paragraph   46 below). In that connection, it specified that its decision to refer the matter to the CJEU was partly based on the fact that the age-limit was different for other Spanish police forces, such as the Guardia Civil , where it was 40   years, and the National Police ( Cuerpo Nacional de Policía ), where it corresponded to the age of retirement. The age-limit for joining the Basque Country police force could not, however, be compared with that for joining national police forces, because the national services fell within the jurisdiction of the State and not of the Autonomous Community. Lastly, the Constitutional Court had established that all criteria for access to public employment should have an objective, reasonable justification and take into account the principles of equality and proportionality. They therefore had to be formulated in general, abstract and non-discriminatory terms based solely on the principle of merit- and skills-based selection. Those criteria, the High Court of Justice of the Basque Country held, had been met in the case before it as a result of the legislation on the conditions for access to police officer posts of the lowest rank in the Autonomous Community of the Basque Country’s police force. This had been confirmed by the CJEU judgment, which had found that the legislation in question did not breach Directive   2000/78/EC. On the basis of the above-mentioned arguments, the Administrative Division of the High Court of Justice of the Basque Country rejected the applicant’s action. 12.     The applicant appealed on points of law against the judgment of the Administrative Division of the High Court of Justice of the Basque Country of 9   February 2017. In a decision of 5   October 2017, the Supreme Court declared the appeal inadmissible on the grounds that it would make no objective contribution to the development of its case-law. On 4   December 2017 it further declared inadmissible an action brought by the applicant to have those proceedings annulled. 13 .     The applicant then lodged an amparo appeal with the Constitutional Court, complaining of a violation of his fundamental rights to equality and to non-discrimination in access to public employment, as provided for in Articles   14 and 23 §   2 of the Spanish Constitution. He argued that the measure setting an age-limit of 35   years for entry to the Basque Country police force was irrational and disproportionate. First, it deprived fully capable candidates of the possibility of accessing such roles. Second, it was applied across the board, without taking into account the various types of roles that could be performed within that police force. 14.     In a decision delivered on 21   June 2018 and notified to the applicant on 25   June of the same year, the Constitutional Court declared the applicant’s amparo appeal inadmissible on the grounds that it had no constitutional relevance. 15.     The applicant’s application form was received by the Court on 3   January 2019. 16 .     In late 2016 a reserve list ( bolsa de trabajo ) for temporary police officer posts in Basque Country local police forces had been drawn up so that shortlisted and trained individuals could be made available to municipalities in the region as needed. The applicant had been included because he had completed the training and work-placement phases of the competitive examination for Ertzaintza police officers. Between January 2018 and June 2019 he was thus employed as a temporary public servant, discharging his duties within the local police force of the town of Sestao. 17 .     Following the entry into force of a legislative amendment in July 2019 (Law no.   7/2019 of 27   June 2019 on a fifth amendment to the Basque Country Police Act), the age-limit in issue was raised from 35 to 38   years (see paragraph   22 below). The new provision also applied to candidates who had passed the 2014, 2015 and 2016 open competitive examinations but had been refused a post on account of their age. As a result, the applicant was appointed as an Ertzaintza police officer on 6   September 2019. 18.     On 3   November 2022 the applicant informed the Court that he had not been able to take part in the open competitive examination for promotion to the second-rank ( escala de inspección ) category of sub-officer ( suboficial ) of the Ertzaintza , which had been published on 4   May 2022, since he had not fulfilled the minimum length of service in that police force (namely four years). He had experienced the same issue in the context of a professional-development programme launched in August 2021, where the minimum length of service had been set at five years. He argued that the damage resulting from the refusal to recruit him to the Ertzaintza in December 2016 on account of his age should therefore be assessed in the light of his subsequent inability to apply for the competitive promotion examination and the professional-development programme in question. RELEVANT DOMESTIC AND INTERNATIONAL LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW AND PRACTICE The Spanish Constitution 19.     The relevant provisions of the Spanish Constitution read: Article   14 “All Spanish citizens are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.” Article   23 “... 2.     They shall also have the right of equal access to public office and employment, subject to the requirements laid down by law.” Article   103 “... 3.     The law shall set the rules governing public servants and regulate access to public employment in accordance with the principle of merit- and skills-based selection   ...” Domestic legislation 20.     Institutional Law no.   2/1986 of 13   March 1986 on State security forces and services lays down the powers of the police forces of the Autonomous Communities as follows: Section   38 “The Autonomous Communities   ... may perform the following duties through their police forces: 1.     Within the scope of their powers: (a)     ensuring compliance with special regulations and orders issued by bodies of the Autonomous Community; (b)     guarding and protecting persons, institutions, buildings, offices and premises of the Autonomous Community and its administrative authorities, ensuring the normal operation of facilities and the safety of users of their services; (c)     inspecting activities that are subject to the legislation of the Autonomous Community, reporting any unlawful activity; (d)     using force for the enforcement of measures or provisions adopted by the Autonomous Community.” 21 .     The relevant sections of Law no.   4/1992 of 17   July 1992 on the police in the Basque Country (“the Basque Country Police Act”), which was applicable at the material time, read: Section   26(1) “Within the powers exercised by the Autonomous Community of the Basque Country, the essential mission of the Ertzaintza [the Basque regional police] is to protect people and property, to ensure that individuals can freely exercise their rights and freedoms and to ensure the safety of citizens throughout the territory of the Autonomous Community. To that end, the Ertzaintza shall perform the duties conferred by the legal system on the State security forces.” 22 .     Law no.   7/2019 of 27   June 2019 on a fifth amendment to the Basque Country Police Act raised the maximum age for joining the Ertzaintza from 35 to 38   years (see paragraph   17 above). The amended criterion was also enshrined in Legislative Decree no.   1/2020 of 22   July 2020 approving the consolidated Basque Country Police Act, which lays down the following conditions: Article   77   – Entry by open competitive examination “1.     To be eligible for the selection tests of the open competitive examination for entry as a public servant to the Basque Country police force, candidates shall fulfil the conditions set out in the legislation governing Basque public employment, along with the following specific conditions: (a)     Be at least 18   years of age. For recruitment as a police officer, candidates must be under 38   years of age or have served in another Basque Country police force. (b)     Not have been convicted of a criminal offence or dismissed from a government department, or have been disqualified or suspended from working in the public service, without prejudice to any reinstatement granted, in accordance with criminal and administrative regulations. (c)     Hold the qualifications required for the relevant category of post. (d)     Not suffer from a disqualifying medical conditions set by regulation. (e)     Be of the minimum height set by regulation, which shall be different for men and women. (f)     Commit, by means of a declaration, to carrying weapons and to using them if necessary. (g)     Hold a driving licence for the vehicle category specified in each call for applications. (h)     Meet any other specific requirements that are objectively related to the duties and tasks to be performed, as provided for in the call for applications. 2.     The above-mentioned conditions shall be fulfilled by the application deadline, except for the condition set out in sub-paragraph   (g), which shall be fulfilled by the date specified in each call for applications.” 23.     The relevant provisions of Royal Legislative Decree no.   5/2015 of 30   October 2015 approving the consolidated General Public Employee Regulations Act ( Ley del Estatuto Básico del Empleado Público ), as in force at the relevant time, read: Article   1   – Purpose “1.     The purpose of this Act is to provide the basis for the rules governing public servants falling within its scope. 2.     It is further intended to set the rules applicable to other staff of government departments. 3.     It reflects the following fundamental principles of action: ... (b)     equality, merit and skills with regard to access [to public employment] and promotion; ... (f)     efficient human-resources planning and management; (g)     continuing professional development and training for public employees; ...” 24.     The relevant provisions of Law no.   62/2003 of 30   December 2003 on measures relating to tax, administration and labour, as in force at the material time, read: Section   34   – Scope of Part   3.a. “1.     The purpose of the present Part is to set measures to ensure that the principle of equal treatment and non-discrimination is genuinely and effectively applied to access to employment; membership and participation in trade unions and employers’ associations; working conditions; promotions; occupational and continuing training; access to self-employment and professional practice; and membership and participation in any organisation whose members practise a specific profession. 2.     For the purposes of the preceding paragraph, the principle of equal treatment shall entail the absence of any direct or indirect discrimination based on an individual’s racial or ethnic origin, religion or belief, disability, age or sexual orientation. Differences of treatment which are based on a characteristic related to any of the grounds referred to in the [first] paragraph 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.” 25.     Police forces in Spain are organised into three levels, corresponding to the three basic administrative divisions of the State. First, at national level, the State security forces and services fall under the authority of the central government and comprise the National Police and the Guardia Civil . Second, at regional level, some Autonomous Communities have their own police forces, such as the Ertzaintza in the Basque Country, the Mossos d’Esquadra in Catalonia, the Policía Foral Navarra in Navarre and the Cuerpo General de la Policía Canaria in the Canary Islands. And third, at local level, the police forces fall within the remit of the local authorities. There is therefore no single rule on the maximum age for admission to competitive examinations for recruitment to the police forces and security services. The maximum age and other eligibility requirements such as height, state of health, qualifications and administrative authorisations (a specific driving licence, for example) differ both from police force to police force and within each police force itself, depending on the specific rank and category concerned by the post in question, the applicable regulations and, in particular, the specific characteristics of the post and the duties involved. 26.     In any event, a number of amendments have been made in recent years   – by means either of primary and secondary legislation or of case-law   – revealing a certain trend towards raising or even abolishing the maximum age for entry to such institutions (see paragraphs   31-43 below). 27 .     With more specific regard to the Ertzaintza , the maximum age for access to police officer posts of the lowest rank was raised from 30   years (in 1994) to 32   years (in 2002), then to 35   years (in 2010   – the applicable limit when the applicant applied to take part in the competitive examination) and finally to 38   years (in 2019). Domestic case-law Case-law of the Constitutional Court concerning age-limits for access to public employment 28 .     The Constitutional Court has on several occasions been asked to rule on whether setting an age-limit for access to a public post was contrary to the principle of equality enshrined in Articles   14 and 23 §   2 of the Spanish Constitution. 29 .     In judgment no.   37/2004 of 11   March 2004, the Constitutional Court found that Article   135   (b) of Royal Legislative Decree no.   781/1986 of 18   April 1986 approving the amended statutory provisions in force on local government, was unconstitutional. The Article in question set a maximum age for admission to tests for local public posts (“be at least ten years younger than the compulsory age-related retirement age, as determined by the legislation on public employment”). The Constitutional Court considered that the age-limit in question, which applied across the board to all local government departments, was not justified. It specified that the right of equal access to public employment “[did] not prohibit the legislature from taking into consideration candidates’ age”, among other personal circumstances, and that “a legislative decision which, in view of this differentiating factor and the characteristics of the job in question, objectively [set] age-limits making access to such job impossible for anyone who exceed[ed] them” was legitimate. It found it inappropriate, however, to “set a maximum age for access to public employment in general”. 30 .     In judgment no.   29/2012 of 1   March 2012, the Constitutional Court was called upon to determine whether the Andalusian Local Police Coordination Act could impose an age-limit for access to posts within the relevant local police forces under the internal-mobility system. As it stood, the Act did not allow applications from local police officers who would be eligible for reassignment to less physically demanding duties ( segunda actividad , or “modified active service”) in less than ten years. The Constitutional Court held that the age-limit in question was justified because opening access to those posts to public servants close to the age of such a reassignment would have a detrimental effect on the public interest. Case-law of the ordinary courts concerning age-limits for entry to regional and national police forces and to the armed and security forces 31 .     In some judgments delivered in recent years (particularly since 2011), the Supreme Court has set aside the upper age-limits indicated in the calls for applications for various armed and security forces at both national and regional levels. Other courts have also set aside such provisions. No ban has been placed on setting an upper age-limit for entry to certain institutions, particularly police and security forces, but the age-limit in question must be justified, as assessed on a case-by-case basis. The domestic courts have thus found that setting an age-limit for admission to certain competitive examinations was in breach of the legal requirements because it lacked sufficient justification in the light of the particular circumstances of the case (relating, for example, to specific duties or to the grounds alleged in the proceedings before them). In other cases, the Supreme Court has found that the grounds relied on to justify an age-limit were sufficient and therefore lawful with regard to access to various categories of posts within the institutions in question. (a)    Regional police forces: Ertzaintza and Mossos d’Esquadra 32 .     With regard more specifically to the Ertzaintza , the High Court of Justice of the Basque Country held in five judgments that the upper age-limit of 35   years required to access police officer posts of the lowest rank was lawful in the context of the respective calls for applications in 2014 (judgment delivered in relation to the applicant’s action   – see paragraph   11 above), 2015 (judgment no.   46/2018 of 26   January 2018, appeal no.   595/2015, and judgment no.   894/2018 of 14   February, appeal no.   256/2015) and 2016 (judgment no.   3689/2018, appeal no.   325/2016, and judgment no.   3690/2018, appeal no.   355/2016, both dated 21   November 2018). 33 .     With regard to the Mossos d’Esquadra , the Supreme Court upheld the decisions of the lower courts in three judgments (judgment no.   441/2006 of 31   January 2006, appeal no.   2202/2000; judgment no.   3965/2006 of 28   June 2006, appeal no.   846/2000; and judgment no.   6510/2009 of 28   September 2009, appeal no.   4433/2005), finding that there was no justification for setting an upper age-limit of 40   years for access to third-rank ( escala ejecutiva ) posts in the Mossos d’Esquadra . Nothing prevented officers of that rank from carrying out their duties from such age until retirement. The selection tests, which included physical and medical tests, further made it possible to detect any unfitness for duties within that regional police force, regardless of age. In consequence, the age-limit requirement in the contested notices of competitive examination was set aside. 34 .     However, in view of the CJEU’s assessment in its preliminary ruling of 15   November 2016 in Salaberria Sorondo (C-258/15, EU:C:2016:873), the Supreme Court departed from its own case-law in judgment no.   1321/2017 of 5   April 2017 (appeal no.   1709/2015), confirming the validity of the upper age-limit of 30   years for access to the posts of corporal and guard in the Guardia Civil (see paragraph   43 below). That ruling was followed by other judgments in which the Supreme Court, once again applying the European line of case-law, held that the age-limits in various calls for applications and regulations in dispute were lawful. In judgment no.   3422/2017 of 25   September 2017 (appeal no.   2637/2015), for example, it upheld the age-limit of 33   years for entry to the local police forces of a number of municipalities in the Autonomous Community of Castile and León   – even though the CJEU’s preliminary ruling concerned only the Ertzaintza . In judgment no.   928/2023 of 15   March 2023 (appeal no.   1702/2022) concerning the age-limit for access to police officer posts of the lowest rank in the Ertzaintza and entry to Basque Country local police forces, the Supreme Court expressly stated that it had departed from its previously established doctrine following the CJEU judgment in case C ‑ 258/15. In the light of its new doctrine, the Supreme Court found that it had not been shown that the age-limit in dispute should be raised further. At the material time, that age-limit was set at 38   years   – that is, higher than the age-limit of 35   years complained of in the CJEU case. In reaching its finding, the Supreme Court had considered not only the short period of time that had elapsed between the call for applications dealt with in the CJEU decision and the call for applications it was examining (that is, five years, from 2014 to 2019), but also the reports on Ertzaintza workforce ageing which had been submitted to the CJEU and which emphasised the need to gradually replace the staff in question with younger recruits. Lastly, the Supreme Court considered that the CJEU’s assessment of the physical capacity required to carry out a certain occupation, as performed in the Wolf case (C ‑ 229/08, EU:C:2010:3) in relation to a professional fire service (see paragraph   47 below), applied equally to local police forces and the Ertzaintza . (b)    National Police 35 .     As regards the National Police, the Supreme Court held in a judgment of 21   March 2011 (judgment no.   2185/2011, appeal no.   184/2008) that the age-limit of 30   years set in an external competitive examination for recruitment to the category of third-rank inspector did not comply with the statutory requirements. It considered that the resulting difference in treatment on grounds of age could not be objectively and reasonably justified. In this connection, it noted that (i)   the maximum age for external recruitment to third-rank inspector posts for individuals who were already members of the National Police was 35 rather than 30   years; and (ii)   no age-limit was imposed when such individuals obtained the posts in question through internal promotion. It followed that age was not an obstacle to the performance of the duties assigned to third-rank inspectors of the National Police. The Supreme Court thus held that the upper age-limit was not genuine and determining for the performance of the duties devolved to that organisation and, consequently, that it was not objectively and reasonably justified. The age-limits provided for in Article   7   (b) of Royal Decree no.   614/1995 of 21   April 1995 approving the regulations on national-police selection and training processes were set aside as a result. The Supreme Court subsequently delivered several other judgments concerning the age-limit requirement for access to third-rank officer posts in the National Police. 36 .     On the basis of similar reasoning, the Supreme Court thus concluded that the age-limit of 30   years required for external recruitment to police officer posts of the lowest rank ( escala básica ) in the National Police should be set aside because it was not objectively and reasonably justified. In the ruling in question (judgment no.   8585/2011 of 16   December 2011, appeal no.   158/2010), it considered that the setting aside ordered in the judgment of 21   March 2011 (see paragraph   35 above), which concerned the age-limit for entry to the National Police as provided for in Article   7   (b) of Royal Decree no.   614/1995 of 21   April 1995, made no distinction between lowest-rank and third-rank posts. The same finding therefore applied to both situations, because in neither case (lowest-rank or third-rank post) could it be objectively and reasonably justified that (i)   the age was a genuine and determining occupational requirement for the performance of the assigned duties, (ii)   the age-limit in question pursued a legitimate objective, and (iii)   that age-limit was proportionate in that specific case. That case-law has also been applied in judgments delivered by the ordinary courts (such as judgment no.   5350/2012 of 24   February 2012 of the Madrid High Court of Justice, appeal no.   665/2009). (c)    Armed forces 37 .     With regard to the armed forces, the Supreme Court held in a judgment of 9   May 2014 (appeal no.   529/2012) that the upper age-limit of 31   years set for external recruitment to three army corps   – namely the supply corps, the army legal corps and the intervention corps   – had not been duly justified. It thus set that age-limit aside, finding that the army corps in question did not require any particular level of physical fitness. As a result, there was no legitimate objective justifying a maximum age. Nor could the measure be regarded as necessary and proportionate. 38 .     The Supreme Court did, however, find it justified to set a maximum age for internal promotion to officer posts in the armed forces (judgment no.   2940/2011 of 4   April 2011, appeal no.   129/2010). Although setting a maximum age was not justified in itself, the needs of the armed forces in such cases rendered it necessary for any individual, in order to be promoted to officer, to have been with the organisation for a sufficiently long time and yet still have enough years of career ahead of him or her to be able to carry out the duties in question before reaching retirement age. 39 .     In another judgment (judgment no.   214/2016 of 28   January 2016, appeal no.   480/2014), the Supreme Court also allowed the age-limit of 31   years set for internal promotion to the category of officer of the general or marine infantry corps. It referred to the 2014 CJEU judgment in Vital Pérez (C ‑ 416/13, EU:C:2014:2371   – see paragraph   48 below), in which the age limit of 30   years for entry to the local police force in Oviedo (Spain) had been found to be disproportionate. However, it noted that the requirement submitted to it for examination did not relate to a local police force and that, consequently, both the legal framework and the structure and needs of the corps concerned differed from those in issue in that CJEU judgment. It then endorsed the position of the public authorities, according to which the long-term staffing needs of the armed forces required the career advancement of professional military personnel to be based on experience and merit. Accordingly, sub-officers could be promoted to the rank of officer only at an age which would allow them to fill certain other posts over their careers, depending on the needs of the army corps in question. 40 .     On 30   May 2012 (judgment no.   3842/2012, appeal no.   63/2010), the Supreme Court found that the upper age-limit of 29   years set for entry to the soldier and marine corps of the armed forces was justified, in view of their short- and long-term needs. As in the judgment discussed above (see paragraph   39 above), those needs called for the greatest possible number of staff with significant experience, which could be acquired only through long periods in the armed forces. The Supreme Court thus held that the introduction of that age-limit was intended to promote staff retention in the armed forces, an objective it regarded as legitimate on account of its direct link to the structural needs of the army corps concerned. The age-limit in question further met the proportionality requirement. 41 .     In judgment no.   728/2022 of 3   March 2022 (appeal no.   237/2021), however, which concerned the internal promotion of sub-officers, with or without a degree, to officer posts in the general corps and the marine infantry, the Supreme Court held, contrary to the solution adopted in the judgment of 28   January 2016 (see paragraph   39 above), that the age-limits set by royal decree at 38 and 34   years respectively were not objectively or scientifically justified in the relevant instruments. It accordingly set them aside. (d)    Guardia Civil 42 .     Lastly, with respect to the Guardia Civil , a military police corps, the Supreme Court initially applied the criterion established in judgment no.   2185/2011 of 21   March 2011 (see paragraph   35 above). Accordingly, in judgment no.   4216/2015 of 14   October 2015 (appeal no.   969/2013) and judgment no.   5489/2015 of 24   November 2015 (appeal no.   3269/2014), it set aside the age-limits of 30   years set in the notices of competitive examination issued respectively for access to the fourth rank ( escala facultativa superior ) and for access to the posts of corporal and guard in that police corps. 43 .     However, in judgment no.   1321/2017 of 5   April 2017 (appeal no.   1709/2015), the Supreme Court confirmed the validity of the upper age-limit   – also set at 30   years   – in notices of competitive examination for the same types of posts as those dealt with in the aforementioned 2015 judgments. While acknowledging that the facts of the case before it were identical to those on which it had ruled in its above-cited judgment of 24   November 2015, the Supreme Court considered that account had to be taken of the CJEU’s Grand Chamber finding that the setting of a maximum age of 35   years for access to posts of the lowest rank in the Ertzaintza was not discriminatory under Directive   2000/78/EC (see paragraph   46 below). The Supreme Court therefore applied the same criteria as the CJEU and held that the duties of Ertzaintza police officers of the lowest rank and Guardia Civil corporals and guards required optimum physical fitness and that the structural needs of both institutions justified the setting of a maximum age of entry, without that being considered disproportionate to the objectives pursued. Accordingly, the maximum age of 30   years set for access to the posts of corporal and guard in the Guardia Civil was compatible with the law and the Spanish Constitution. EUROPEAN UNION LAW AND PRACTICE AND CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION (CJEU) 44 .     The Charter of Fundamental Rights of the European Union (OJ   2012/C   326/02), in so far as relevant, prohibits discrimination in the following terms: Article   21(1) Non-discrimination “1.     Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. ...” 45 .     The relevant provisions of Council Directive 2000/78/EC of 27   November 2000 establishing a general framework for equal treatment in employment and occupation (OJ   2000 L   303, pp.   16-22) read: ... Whereas: “(18)     This Directive does not require, in particular, the armed forces and the police, prison or emergency 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.” Article   1 Purpose “The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.” Article   4 Occupational requirements “1.     Notwithstanding Article   2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article   1 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. ...” Article   6 Justification of differences of treatment on grounds of age “1.     Notwithstanding Article   2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary. Such differences of treatment may include, among others: ... (c)     the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.” 46 .     In a judgment of 15   November 2016 in Salaberria Sorondo (C ‑ 258/15, EU:C:2016:873), the CJEU, dealing with the aforementioned request for a preliminary ruling (see paragraph   11 above), found that legislation which provided that candidates applying for police officer posts of the lowest rank in a police force such as the Ertzaintza had to be under 35   years of age did not breach European Union (EU) law, and more specifically Directive   2000/78/EC. It reiterated that, under Article   4(1) of that Directive, “a difference of treatment which [was] based on a characteristic related to any of the grounds referred to in Article   1 [of the Directive in question] [did] not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they [were] carried out, such a characteristic constitute[d] a genuine and determining occupational requirement, provided that the objective [was] legitimate an