Basque country law

Although European law prohibits treating people differently because of their age, it allows for an exception if the treatment constitutes a “genuine and determining occupational requirement”. In Salaberria Sorondo v Academia Vasca de Policia y Emergencias, the Court of Justice of the European Union (CJEU) held that an age limit of 35 for members of the Basque security forces was not incompatible with European law.

Basic facts

Under Spanish law, the Basque Police and Emergency Services Academy (the state security force) has the power to restrict recruitment to the police force in the autonomous region to candidates who are under 35.

Mr Salaberria Sorondo, who was over 35, argued that this restriction was contrary to the provisions of the Directive on Equal Treatment in Employment and Occupation prohibiting direct and indirect discrimination in employment on the ground of age. He brought a claim before the regional High Court of Justice arguing that it restricted access to public service posts and could not be justified.

Decision of lower court

The court however, was not convinced. It took the view that setting an upper age limit for admission to a police force responsible for maintaining public order and public safety, could be held to be proportionate and reasonable and therefore compatible with the Directive.

It decided to stay the proceedings and ask the CJEU to determine whether the age limit was compatible with the Directive or not.

Decision of CJEU

The CJEU noted that although European law prohibits a difference of treatment based on age, it also allows for an exception where a characteristic related to age, such as having certain physical capabilities, constitutes a genuine and determining occupational requirement.

In this case, it observed that duties related to protecting people and property, arresting and guarding offenders and “preventing patrolling” might require the use of physical force. As such, the people carrying out those duties needed particular physical capabilities not just to protect third parties and other police officers, but also to maintain public order. It therefore followed that possessing certain physical capabilities to carry out the essential duties of a police officer in the Basque Country could be considered to be a genuine and determining occupational requirement for that job.

It distinguished this case from the decision in Vital Perez v Ayuntamiento de Oviedo (which precluded national legislation setting the age limit for recruitment to the local police force at 30) on the basis that the job of a local police force was very different to that of the state security forces. It was also significant that the age limit did not apply to administrative jobs. Finally, the Court held that it was important for the service to be able to plan for the replacement of older officers with younger staff who could carry out physical tasks more effectively.

The Court therefore held that the Spanish legislation requiring state security police officers carrying out operational duties to be under 35 was not incompatible with the Directive.