CEDH · CASELAW;CLIN;ENG — 26 novembre 2024

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary November 2024 Ferrero Quintana v. Spain - 2669/19 Judgment 26.11.2024 [Section III] Article 1 of Protocol No. 12 General prohibition of discrimination Maximum age of 35 for public competition to recruit police officers of lowest rank necessary to ensure and maintain functional capacity of police force: no violation Facts – The applicant was provisionally authorised to take part in a public competition to fill several police-officer positions of the lowest rank in the police force of the Autonomous Community of the Basque Country ( Ertzaintza ), even though he was over the age-limit of 35. He successfully completed the various tests but was not recruited on account of his age. Before the Court, he argued that the medical examinations and physical aptitude tests he had undergone had confirmed that he was physically apt to hold the position in question and that he had therefore been the subject of discrimination on grounds of age, which constituted a violation of Article   1 of Protocol No.   12. Law – Article   1 of Protocol No.   12: (a) Whether there was a ground of discrimination prohibited by Article   1 of Protocol No.   12 – In passing both the medical and physical tests of the competition, the applicant had obtained results that qualified him for one of the positions on offer and he had been disqualified solely on the ground of his age, which constituted “other status” within the meaning of Article   1 of Protocol No.   12. (b) Whether there was a difference in treatment between persons in analogous situations   – There were two comparable categories, one of which had been treated less favourably than the other on the ground that a specific age had been exceeded: individuals up to the age of 35 who wished to take part in the public competition in question and those over the age of 35. (c) Whether the difference in treatment pursued a legitimate aim and was justified – The Contracting Parties’ margin of appreciation in establishing the rules of admission to public-sector employment and the terms and conditions of such employment covered admission to employment in police forces as well. The Court found that not all differences in treatment on grounds of age could be regarded as invidious kinds of discrimination. Nor did they all have the same relative importance for the individual interest at stake. Thus, in the present case, the applicant was not a member of a vulnerable group. He had taken part in a competition in order to become a public-sector employee, not to assert a   fundamental right explicitly recognised by the Convention. The national authorities had thus enjoyed a wide margin of appreciation in the present case. As to whether the aim was legitimate, in its judgment in respect of a different candidate taking part in the same competition as that complained of in the present case, the Court of Justice of the European Union (CJEU) had found that the concern to ensure the operational capacity and proper functioning of police services constituted a legitimate objective within the meaning of Article   4(1) of directive 2000/78/EC , which established a general framework for equal treatment in employment and occupation within the European Union. The Court took the view that, although the decision not to admit the applicant as a police officer of the lowest rank in the Ertzaintza had been based on the fact that he was over a specific age, its aim had not been to exclude him but to ensure the proper functioning of that police force. This was a legitimate aim for the purposes of Article   1 of Protocol No.   12. As to whether the justification provided had been objective and reasonable, the Court could allow that age was a relevant factor in determining a person’s physical aptitude. The duties of officers of the police force in question were not administrative in nature, but operational or executive, requiring particular physical aptitude. Any physical shortcomings that interfered with the performance of those duties were liable to have significant consequences not only for the police officers themselves and for third parties, but also for the maintenance of public order. Possessing certain physical capacities could be regarded as an essential and decisive professional requirement for the performance of the duties of an officer of the lowest rank of the Ertzaintza . Moreover, the question whether someone possessed particularly robust physical capabilities had to be assessed dynamically, taking into consideration the years of service the officer would be required to complete after recruitment, rather than in a static manner, solely at the time of the recruitment competition. Thus, even assuming that applicant, like other candidates over the age of 35 at the time of the physical aptitude tests, had been in peak physical condition at that time, it could be allowed that, having regard to the nature of a police officer’s duties, it was important to ensure that these physical capabilities were maintained for a maximum number of years, and the impact of the passage of time in that regard could not be neglected. The officers of the lowest rank in the Ertzaintza over the age of 55 could not considered to be in full possession of the necessary capabilities for the proper performance of their professional duties, without there being a risk for them or for third parties. That was why, from the age of 56, those officers were entitled to a statutory reduction in their annual working time and to exemption from night work and assignments on patrol outside police facilities. The Court acknowledged that a consequence of entitlement to certain privileges from the age of 56 onwards was that the period of fully operational professional activity, during which officers of the lowest grade in the Ertzaintza were in peak condition to provide police services, was shorter than the period of activity in other professions. This had a considerable impact on the operational nature of the police force. It might therefore be appropriate, by way of measures such as the one in question, to ensure that a sufficient number of “young” officers were present to carry out tasks involving greater physical exertion. The Court took the view that, in general, such questions of internal organisation fell within the Contracting States’ margin of appreciation. In addition, domestic law allowed public employers to establish criteria for admission to services such as the national police, the police of the Autonomous Communities, the fire brigade or the military, such as a minimum age, a maximum age or a minimum height, so as to ensure candidates’ ability to perform the duties assigned to those services. Moreover, other military, police and security forces and services had also set age-limits for admission. The Supreme Court had held that introducing a maximum age (sometimes lower than age   35) was justified by the aim of maintaining effectiveness and by the structural requirements of these services, and that the age-limits in question were necessary and proportionate to that aim. The Supreme Court had also taken into account the findings of the CJEU in its judgment concerning the same situation as the one faced by the applicant in the present case. The fact that the applicant had not been automatically admitted to the Ertzaintza as an officer of the lowest rank on account of his age at the time of the competition for admission meant that he had indeed been treated differently from other candidates in a similar situation taking part in that competition, and this difference in treatment had been based on his age. Nevertheless, the difference in treatment could be regarded, first, as appropriate to the aim of ensuring the operational capacity and proper functioning of the police service in question and, second, as not going beyond what was necessary to achieve that aim. (d) Conclusion – In the light of the findings set out above, the Court took the view that it was established that restricting admission to positions for police officers of the lowest rank in the Ertzaintza by establishing a maximum age of 35 (at the material time) had been necessary to ensure and maintain the functional capacity of that autonomous police force. Given that the margin of appreciation with regard to the requirements of admission to public employment in the area of police and security forces was wide, the national authorities had provided relevant and sufficient reasons to justify the necessity of the measure. Conclusion : no violation (unanimous). (See also Salaberria Sorondo , Grand Chamber judgment of 15   November 2016, C‑258/15 , EU:C:2016:873)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .