Contents
Judgment of the Court (Seventh Chamber)17 November 2022note(Reference for a preliminary ruling — Social policy — Equal treatment in employment and occupation — Article 21 of the Charter of Fundamental Rights of the European Union — Directive 2000/78/EC — Article 2(2), Article 4(1) and Article 6(1) — Prohibition of discrimination on grounds of age — National legislation fixing a maximum age limit of 30 years for the recruitment of police commissioners — Justification)In Case C‑304/21,REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 23 April 2021, received at the Court on 12 May 2021, in the proceedingsVTvMinistero dell’Interno,Ministero dell’Interno – Dipartimento della Pubblica Sicurezza – Direzione centrale per le risorse umane,THE COURT (Seventh Chamber),composed of M.L. Arastey Sahún (Rapporteur), President of the Chamber, N. Wahl and J. Passer, Judges,Advocate General: J. Richard de la Tour,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– VT, by A. Bonanni and P. Piselli, avvocati,– the Italian Government, by G. Palmieri, acting as Agent, and by E. De Bonis and G.M. De Socio, avvocati dello Stato,– the German Government, by J. Möller and A. Hoesch, acting as Agents,– the Greek Government, by M. Tassopoulou, acting as Agent,– the European Commission, by D. Martin and D. Recchia, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation 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, p. 16), Article 3 TEU, Article 10 TFEU and Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2The request was made in the context of a dispute between VT and the Ministero dell’Interno (Ministry of the Interior, Italy) and the Ministero dell’Interno – Dipartimento della Pubblica Sicurezza – Direzione centrale per le risorse umane (Ministry of the Interior – Department of Public Security – Central Directorate of Human Resources, Italy), concerning the decision not to admit VT to a competition to fill the posts of commissioner of the Polizia di Stato (State Police, Italy), on the ground that he had reached the maximum age limit for that purpose.
Legal context
European Union law
3Recitals 18 and 23 of Directive 2000/78 state:(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.…(23) In very limited circumstances, a difference of treatment may be justified where a characteristic related to … age … constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate. …’
4Article 1 of Directive 2000/78 states that the purpose of that 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.
5Article 2 of that directive, entitled ‘Concept of discrimination’, provides:1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.2.For the purposes of paragraph 1:(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;…’
6Article 3 of that directive, entitled ‘Scope’, provides:1.Within the limits of the areas of competence conferred on the [European Union], this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;…’
7Article 4 of that directive, entitled ‘Occupational requirements’, provides in paragraph 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.’
8Article 6 of Directive 2000/78, entitled ‘Justification of differences of treatment on grounds of age’, provides in paragraph 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.’
Italian law
Legislative Decree No 165/1997
9In accordance with Articles 1 and 2 of decreto legislative n. 165– Attuazione delle deleghe conferite dall’articolo 2, comma 23, della legge 8 agosto 1995, n. 335, e dall’articolo 1, commi 97, lettera g), e 99, della legge 23 dicembre 1996, n. 662, in materia di armonizzazione al regime previdenziale generale dei trattamenti pensionistici del personale militare, delle Forze di polizia e del Corpo nazionale dei vigili del fuoco, nonchè del personale non contrattualizzato del pubblico impiego (Legislative Decree No 165 on the implementation of the delegations conferred by Article 2(23) of Law No 335 of 8 August 1995 and Article 1(97)(g) and paragraph 99 of Law No 662 of 23 December 1996 on the harmonisation with the general social security system of the retirement salaries of military, police forces and national firefighters and of non-contractual public servants) of 30 April 1997 (GURI No 139 of 17 June 1997), the age limit beyond which State Police personnel are retired is 61 years.
Law 127/1997
10The general rules on age as regards participation in public competitions are laid down in Article 3(6) of Legge n. 127 – Misure urgenti per lo snellimento dell’attività amministrativa e dei procedimenti di decisione e di controllo (Law No 127 on urgent measures for the rationalisation of administrative activity and decision-making and control procedures) of 15 May 1997 (GURI No 113 of 17 May 1997 – Ordinary supplement to GURI No 98), according to which ‘participation in competitions held by the public administration shall not be subject to any age limits, with the exception of the derogations in the regulations drawn up by individual administrations made on the basis of the nature of the service or the objective needs of the administration’.
Legislative Decree No 334/2000
11The functions of the Police Commissioner are regulated by Legislative Decree n. 334 – Riordino dei ruoli del personale direttivo e dirigente della Polizia di Stato, a norma dell’articolo 5, comma 1, della legge 31 marzo 2000, n. 78 (Legislative Decree No 334 – Reorganisation of the functions of the executive and managing staff of the State Police, in accordance with Article 5(1) of Law No 78 of 31 March 2000), of 5 October 2000 (GURI No 271, of 20 November 2000 – Ordinary Supplement to GURI No 190; ‘Legislative Decree No 334/2000’).
12Article 2(2) of that legislative decree describes the duties of police commissioner as follows:‘Persons in the career bracket of officers up to the grade of chief commissioner shall have the grades of public security officer and judicial police officer. In relation to the grades which they hold, they shall perform the duties inherent in institutional tasks of the State Police and the Public Security Administration, with independent decision-making responsibility and corresponding professional input. They shall also provide for the training of employees and perform, in relation to their proficiency, duties relating to education and training of State Police personnel. Those personnel shall work directly with the holders of higher grades in the same career bracket and substitute for them in managing offices and departments in the event of absence or impediment. If they are holders of the relevant office, and when substituting for the director of detached public security offices, chief commissioners shall also perform the functions of a local public security authority. Those personnel shall also carry out, with full responsibility for the directives issued and the results obtained, duties relating to the management of offices and departments not reserved to personnel of higher grades, and duties relating to the direction and coordination of several organisational units in the office to which they are assigned. …’
13Under Article 3(1) of that legislative decree, ‘the limit for participation in the competition, of not more than 30 years of age, shall be laid down in the regulation adopted pursuant to Article 3(6) of Law No 127 of 15 May 1997, subject to the exceptions set out therein’.
14Article 3(3) of that legislative decree provides that a regulation of the Ministry of the Interior is to lay down ‘the procedures for carrying out physical fitness tests, the physical, mental and aptitude requirements and the manner in which they are assessed’.
15Under Article 3(4) of Legislative Decree No 334/2000, ‘20% of the posts available at the grade of commissioner shall be reserved to State Police personnel who hold the requisite degree with legal content and are not more than 40 years of age …’.
Ministerial Decree No 103/2018
16The regulation referred to in Article 3(1) of Legislative Decree No 334/2000 is Decreto ministeriale n. 103 – Regolamento recante norme per l'individuazione dei limiti di età per la partecipazione ai concorsi pubblici per l'accesso a ruoli e carriere del personale della Polizia di Stato (Ministerial Decree No 103 – Regulation laying down the rules for fixing the age limits provided for for participation in the public competitions for access to the functions and careers of the State Police personnel), of 13 July 2018 (GURI No 208, of 7 September 2018; ‘Ministerial Decree No 103/2018’), adopted by the Ministry of the Interior and whose Article 3(1) provides:‘Participation in the public competition for access to the office of Supervisor and Technical Director of the State Police shall be subject to a maximum age limit of 30 years.’
The dispute in the main proceedings and the question referred for a preliminary ruling
17On 2 December 2019, the Ministry of the Interior organised a competition based on qualifications and tests for the allocation of 120 State Police commissioner posts. Among the general conditions for admission to that competition, the call for applications stated, pursuant to Ministerial Decree No 103/2018, that candidates must have reached the age of 18 and not have reached the age of 30, subject to certain special cases.
18VT attempted to apply for that competition in accordance with the applicable dematerialised procedure. However, the computer application provided for that purpose prevented him from submitting that application because he did not satisfy the age condition referred to in the previous paragraph. Having been born in 1988, he had already reached the age of 30 and did not fall within any special case in which such an age limit is raised.
19VT therefore brought an action before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) against the call for applications, Ministerial Decree No 103/2018 and the implied decision not to admit his application to the same competition.
20By virtue of a provisional measure adopted by that court, VT was admitted to take part in that competition and subsequently passed the pre-selection tests.
21However, by its judgment of 2 March 2020, that court dismissed VT’s action on the ground that the age limit referred to in paragraph 17 of the present judgment constituted a ‘reasonable restriction’ and, in that respect, it was not contrary either to the Costituzione della Repubblica Italiana (Constitution of the Italian Republic) or to the provisions of EU law which prohibit discrimination on grounds of age, in particular Directive 2000/78.
22VT brought an appeal against that judgment before the referring court, the Consiglio di Stato (Council of State, Italy), claiming that the rules fixing the age limit concerned were contrary to both EU law and the Constitution of the Italian Republic and other provisions of Italian law.
23As regards EU law, VT relied on the application of Directive 2000/78, Article 21 of the Charter and Article 10 TFEU. He maintained that the fixing of a maximum age limit of 30 for participation in the competition in question in the main proceedings constituted unreasonable discrimination. The fact that certain provisions of the call for applications concerned lay down a higher age limit for certain categories of candidates is even more unreasonable. That call for applications provides that the maximum age limit ‘shall be raised by a maximum of three years, in relation to the actual military service performed by the candidates’, that ‘the age limit shall be disregarded in respect of personnel belonging to the State Police force’ and that ‘in respect of those persons who are members of the Civil Administration of the Interior, the age limit for participation in the competition shall be 35’.
24The Ministry of the Interior contended that VT’s appeal should be dismissed.
25The referring court considers that, in the present case, there is discrimination on grounds of age, within the meaning of Article 2 of Directive 2000/78, which is not justified under Articles 4 and 6 thereof.
26In that regard, the referring court states that it is clear from a reading of Article 2(2) of Legislative Decree No 334/2000 that the duties of police commissioner are essentially managerial and administrative. The applicable national provisions do not provide for essential operational executive duties which, as such, require particularly important physical capabilities comparable to those required of a mere officer of a national police force, within the meaning of the judgment of 15 November 2016, Salaberria Sorondo (C‑258/15, EU:C:2016:873).
27Furthermore, that court takes the view that the present case must also be compared with that which gave rise to the judgment of 13 November 2014, Vital Pérez (C‑416/13, EU:C:2014:2371), in which the fixing of an age limit of 30 years for access to the status of a mere officer was regarded as disproportionate, in a situation in which the corresponding duties were essentially administrative in nature, without any intervention requiring the use of physical force being excluded. That age limit should therefore, a fortiori, be regarded as inappropriate in the present case, since that type of intervention is unrelated to the typical tasks of police commissioners.
28Other arguments would also support the disproportionate nature of that age limit.
29First, the referring court notes that the competition concerned includes the physical fitness test provided for in Article 3(3) of Legislative Decree No 334/2000 and that failure to pass that test means that the candidate is excluded from the competition. Since, as regards police commissioners, requirements concerning particularly important physical capabilities, such as those referred to in the case that gave rise to the judgment of 15 November 2016, Salaberria Sorondo (C‑258/15, EU:C:2016:873), are not provided for, the existence of an eliminatory physical fitness test should in any event be regarded as sufficient to ensure that the corresponding duties can be performed in accordance with the procedures required by those commissioners.
30Secondly, Article 3(4) of that legislative decree, which provides for a quota reserved for personnel already in service who are not over 40 years of age, attests to the fact that having attained that age on the date of registration for the competition concerned would not be incompatible with the performance of the duties of police commissioner.
31Thirdly, the retirement age, fixed at 61, would in any case ensure an adequate period of service, even for persons commencing their career after reaching the age of 30.
32In those circumstances the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Must [Directive 2000/78], Article 3 TEU, Article 10 TFEU and Article 21 of the [Charter] be interpreted as precluding the national legislation contained in Legislative Decree No 334/[2000], as subsequently amended and supplemented, and in the secondary sources adopted by the Ministry of the Interior, which lays down an age limit of 30 years for participation in a selection procedure for posts of commissioner in the career bracket of [Polizia di Stato] (State Police) officers?’
Consideration of the question referred
33As a preliminary point, it should be noted that, in the context of the request for a preliminary ruling, the referring court asks the Court about the interpretation of Directive 2000/78, Article 3 TEU, Article 10 TFEU and Article 21 of the Charter.
34As regards Article 3 TEU and Article 10 TFEU, it is sufficient to state, first, that Article 3 TEU merely sets out the objectives of the Union, which are made explicit by other provisions of the Treaties, and, secondly, that Article 10 TFEU establishes obligations not on the Member States but on the European Union. Therefore, those two articles are not relevant for the purposes of examining the question referred in the present case.
35It must therefore be held that, by its question, the referring court asks, in essence, whether Article 2(2), Article 4(1) and Article 6(1) of Directive 2000/78, read in the light of Article 21 of the Charter, must be interpreted as precluding national legislation which provides for the fixing of a maximum age limit of 30 years for participation in a competition to recruit police commissioners.
36At the outset, it must be borne in mind that the prohibition of discrimination based on, inter alia, age is incorporated in Article 21 of the Charter and that that prohibition was given specific expression by Directive 2000/78 in the field of employment and occupation (judgment of 3 June 2021, Ministero della Giustizia (Notaries), C‑914/19, EU:C:2021:430, paragraph 19 and the case-law cited).
37It must first be determined whether the legislation at issue in the main proceedings falls within the scope of Directive 2000/78.
38In that regard, by providing that persons who have reached the age of 30 may not take part in a competition to recruit State Police commissioners, Article 3(1) of Legislative Decree No 334/2000 affects those workers’ recruitment conditions. Such legislation must therefore be regarded as laying down rules relating to access to employment in the public sector within the meaning of Article 3(1)(a) of Directive 2000/78 (see, to that effect, judgments of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraph 30, and of 15 November 2016, Salaberria Sorondo, C‑258/15, EU:C:2016:873, paragraph 25).
39It follows that the legislation at issue in the main proceedings falls within the scope of Directive 2000/78.
40Next, as regards the question of whether the legislation at issue in the main proceedings introduces a difference of treatment on grounds of age within the meaning of Article 2(1) of Directive 2000/78, it must be borne in mind that, under that provision, the ‘principle of equal treatment’ is to mean that there is to be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 thereof. Article 2(2)(a) of that directive states that, for the purposes of Article 2(1) thereof, direct discrimination is to be taken to occur when a person is treated less favourably than another in a comparable situation, on any of the grounds referred to in Article 1 of that directive (judgment of 15 November 2016, Salaberria Sorondo, C‑258/15, EU:C:2016:873, paragraph 28).
41In the present case, the age condition laid down in Article 3(1) of Legislative Decree No 334/2000 has the consequence that certain persons are treated less favourably than other persons in comparable situations on the sole ground that they have exceeded the age of 30 years.
42Therefore, as all the interested parties who submitted written observations agree, the legislation at issue in the main proceedings introduces a difference of treatment based directly on age as referred to in Articles 1 and 2(2)(a) of Directive 2000/78, read together (see, to that effect, judgments of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraph 33, and of 15 November 2016, Salaberria Sorondo, C‑258/15, EU:C:2016:873, paragraph 30).
43In those circumstances, it should, finally, be determined whether such a difference of treatment may be justified under Article 4(1) or Article 6(1) of Directive 2000/78.
Article 4(1) of Directive 2000/78
44In the first place, Article 4(1) of Directive 2000/78 provides that a difference of treatment which is based on a characteristic related to one of the grounds referred to in Article 1 of that directive is not to 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.
45It is clear from that provision 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 (judgment of 15 November 2016, Salaberria Sorondo, C‑258/15, EU:C:2016:873, paragraph 33 and the case-law cited).
46In that respect, the Court has held that the possession of particular physical capacities is one characteristic relating to age and that the duties relating to protection of people and property, the arrest and guarding of offenders and preventive patrolling may require the use of physical force. The nature of those duties requires a particular level of physical capability in so far as physical inadequacies in the exercise of those duties may have significant consequences not only for the police officers themselves and for third parties but also for the maintenance of public order (see, to that effect, judgments of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraphs 37, 39 and 40, and of 15 November 2016, Salaberria Sorondo, C‑258/15, EU:C:2016:873, paragraphs 34 and 35).
47It follows that the possession of particular physical capacities in order to be able to perform the essential duties of the police such as ensuring the protection of people and property, ensuring that each individual can freely exercise his or her rights and freedoms, and ensuring the safety of citizens, may be considered to be a genuine and determining occupational requirement, within the meaning of Article 4(1) of Directive 2000/78, for the pursuit of the police officer profession (see, to that effect, judgment of 15 November 2016, Salaberria Sorondo, C‑258/15, EU:C:2016:873, paragraph 36).
48In the present case, the referring court states that it follows from Article 2(2) of Legislative Decree No 334/2000 that the duties of a police commissioner are essentially managerial and administrative. Operational and executive duties requiring particularly significant physical capabilities are not essential for the exercise of the profession of police commissioner and interventions requiring the use of physical force are unrelated to the typical tasks of police commissioners.
49Such a finding is, however, disputed by the Italian Government in its written observations.
50According to that government, Article 2(2) of Legislative Decree No 334/2000 provides that officials such as police commissioners are judicial police officers performing duties inherent in all State Police Officers, including operational duties relating to the protection of people and property, which may involve the use of physical coercive measures. Furthermore, the classification as public security officers involves employment in public order services, particularly in external services intended to ensure the smooth running of events and which may require maximum physical effectiveness. The mere possibility that a police commissioner may find himself or herself in risky situations would be sufficient to justify imposing a requirement of physical force, linked to age.
51It will be for the referring court, which alone has jurisdiction to interpret the applicable national legislation, to determine the duties actually performed by the State Police commissioners and, in the light of those functions, to establish whether the possession of particular physical capacities is a genuine and determining occupational requirement within the meaning of Article 4(1) of Directive 2000/78.
52In that regard, that court must take account of the duties performed on a regular basis by the commissioners in the performance of their ordinary tasks. The fact that, after passing a competition, it may be required that some commissioners, depending on the specific characteristics of the post to which they will be specifically assigned, possess particular physical capacities may indeed be taken into account for the purposes of selecting the person wishing to occupy that post. However, that cannot justify fixing an age limit for participation in a competition of general application, such as that at issue in the main proceedings.
53If the referring court finds that, having regard to the duties performed on a regular basis by the State Police commissioners, the possession of particular physical capacities is not a genuine and determining occupational requirement, within the meaning of Article 4(1) of Directive 2000/78, it will have to conclude that that provision, read in conjunction with Article 2(2) of that directive, precludes the legislation at issue in the main proceedings.
54In contrast, if the referring court finds that, in the light of those duties, the possession of particular physical capacities is a genuine and determining occupational requirement, within the meaning of Article 4(1) of that directive, it will still have to determine whether the age limit in question pursues a legitimate objective and is proportionate within the meaning of that provision.
55As regards, first, the objective pursued by the legislation at issue in the main proceedings, the Italian Government submits that, by fixing an age limit of 30 for participation in a competition to recruit police commissioners, that legislation seeks to ensure the operational capacity and proper functioning of the police force.
56In that regard, the Court has 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) of Directive 2000/78 (judgments of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraph 44, and of 15 November 2016, Salaberria Sorondo, C‑258/15, EU:C:2016:873, paragraph 38).
57As regards, secondly, the proportionate nature of that legislation, it should be noted that, according to recital 23 of Directive 2000/78, it is in ‘very limited circumstances’ that a difference of treatment may be justified where a characteristic related, inter alia, to age constitutes a genuine and determining occupational requirement. Moreover, in so far as it allows a derogation from the principle of non-discrimination, Article 4(1) of that directive must be interpreted strictly (judgment of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraphs 46 and 47 and the case-law cited).
58In that regard, the Court held, in essence, in the judgment of 15 November 2016, Salaberria Sorondo (C‑258/15, EU:C:2016:873, paragraphs 41, 48 and 50), that legislation providing for the fixing of a maximum age limit of 35 years for candidates for posts as first-grade officials in a police force who perform all the operational or executive duties could, in principle, be regarded as not going beyond what is necessary to achieve the objective referred to in paragraph 56 of the present judgment. In particular, the Court has noted that those duties may involve the use of physical force and the performance of tasks in conditions where taking action is difficult, if not extremely difficult.
59Similarly, in the judgment of 12 January 2010, Wolf (C‑229/08, EU:C:2010:3, paragraphs 41 to 44), the Court concluded that a measure consisting in fixing the maximum age for recruitment to intermediate career posts in the fire service at 30 years after having found, on the basis of the scientific data available to it, that certain tasks entrusted to members of that service, such as fighting fires, required exceptionally high levels of physical capacities and that very few officials aged over 45 would have the physical capacities to carry out such an activity.
60By contrast, in the judgment of 13 November 2014, Vital Pérez (C‑416/13, EU:C:2014:2371, paragraphs 54 and 57), the Court held that national legislation which fixes the maximum age limit for recruitment of local police officers at 30 years imposed a disproportionate requirement, after noting, inter alia, that, in the light of the duties performed by those officials, which included providing assistance to citizens, the protection of persons and property, the arrest and custody of offenders, conducting crime prevention patrols and traffic controls, the capacity required of them were not always comparable to the exceptionally high physical capacities routinely required of firefighters.
61It follows that, in order to determine whether, by fixing the maximum age limit at 30 for participation in a competition to recruit police commissioners, the legislation at issue in the main proceedings imposed a proportionate requirement, the referring court will, first, have to ascertain whether the duties actually performed by those police commissioners are essentially operational or executive duties which require exceptionally high physical capacities. It is only in the latter case that that maximum age limit could be regarded as proportionate. It seems to follow from the request for a preliminary ruling that the State Police commissioners do not perform such duties.
62Furthermore, for the purposes of analysing the proportionality of the legislation at issue in the main proceedings, the fact, raised by the referring court, that the eliminatory physical fitness test provided for in the competition concerned could constitute an appropriate and less onerous measure than fixing the maximum age limit at 30 years is also relevant.
63The Italian Government relies on the need to lower the average age within the police, in the future, with a view to a general recalibration of the overall structure of access to the State Police.
64In that regard, in the judgment of 15 November 2016, Salaberria Sorondo (C‑258/15, EU:C:2016:873, paragraphs 44 and 47), in the light of precise data which had been provided to him and which could have indicated that the average age of staff of the police force in question would rise significantly, the Court held that, in order to re-establish a satisfactory age pyramid, the possession of particular physical capacities had to be envisaged not statically, in the context of the recruitment competition tests, but dynamically, taking into consideration the years of service that can be accomplished by a police officer after he or she has been recruited.
65In addition, it should be noted that, as is apparent from paragraph 58 of the present judgment, the case which gave rise to that judgment concerned a competition to recruit first-grade officials who do not carry out administrative tasks, but essentially perform operational or executive duties.
66Thus, secondly, it is for the referring court to determine in the light of the documents before it or any information which it might obtain from the national authorities, whether any restoration of a satisfactory age pyramid within the State Police could justify the age limit at issue in the main proceedings. That said, on the one hand, it will have to take into account the average age of the personnel covered by the competition concerned, namely the State Police commissioners, and not that of the entire personnel of the State Police. On the other hand, such a check will only be relevant in so far as that court finds that the duties actually performed on a regular basis by those police commissioners require the possession of particular physical capacities, justifying the need for such a recalibration of the age pyramid.
67Where there is no such need, the existence of an eliminatory physical fitness test in the competition concerned would indeed constitute an appropriate and less onerous measure than the fixing of a maximum age limit of 30 years, such as that laid down in the legislation at issue in the main proceedings.
68Furthermore, according to the referring court, the fact that Article 3(4) of Legislative Decree No 334/2000 provides for a quota reserved for officials already in service who are not older than 40 years of age makes it possible to state that having reached that age on the date on which a competition is registered is not incompatible with the performance of the duties of police commissioner and, consequently, that the age limit at issue in the main proceedings is disproportionate. Similarly, VT points out that that age limit is raised by three years for candidates who have completed military service, abolished for personnel in the State Police force and fixed at 35 for staff in the civil service of the Ministry of the Interior.
69The Italian Government maintains that the quota referred to in the preceding paragraph is intended to preserve the skills acquired by persons who are already trained for the police service or for services relevant to the role of police commissioner.
70That said, the existence of that derogation and of those put forward by VT confirms the disproportionate nature of the age limit at issue in the main proceedings. Legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (judgment of 15 July 2021, Tartu Vangla, C‑795/19, EU:C:2021:606, paragraph 44 and the case-law cited).
71Consequently, subject to the verifications to be carried out by the referring court, it appears that, in so far as the duties performed on a regular basis by State Police commissioners require particular physical capacities, the fixing of the maximum age limit at 30 years provided for in Article 3(1) of Legislative Decree No 334/2000 constitutes a disproportionate requirement having regard to Article 4(1) of Directive 2000/78.
Article 6(1) of Directive 2000/78
72As regards, in the second place, the question of whether the difference of treatment established by the legislation at issue in the main proceedings may be justified under Article 6(1) of Directive 2000/78, it should be noted that that question will be examined only if that difference of treatment cannot be justified under Article 4(1) of that directive (see, to that effect, judgment of 15 November 2016, Salaberria Sorondo, C‑258/15, EU:C:2016:873, paragraph 49).
73The first paragraph of Article 6(1) of Directive 2000/78 states that differences of treatment on grounds of age are not to constitute discrimination if, within the context of national law, they are objectively and reasonably justified, by a legitimate aim, linked, in particular, to the employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary. Point (c) of the second subparagraph of Article 6(1) of that directive provides that such differences of treatment may include, among others ‘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’.
74It must therefore be examined whether the condition of a maximum age of 30 years for participation in a competition to recruit police commissioners, as laid down in Article 3(1) of Legislative Decree No 334/2000, is justified by a legitimate aim within the meaning of Article 6(1) of Directive 2000/78 and whether the means of achieving that aim are appropriate and necessary.
75It is not apparent from the reference for a preliminary ruling that the legislation at issue in the main proceedings indicates what objective it pursues. However, as the Court has held, it cannot be inferred from Article 6(1) of Directive 2000/78 that a lack of precision in the national legislation concerned as regards the aim pursued automatically excludes the possibility that it may be justified under that provision. In the absence of such precision, it is important that other elements, derived from the general context of the measure concerned, should make it possible to identify the underlying aim of that measure for the purposes of review by the courts as to its legitimacy and as to whether the means put in place to achieve that aim are appropriate and necessary (judgment of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraph 62 and the case-law cited).
76Furthermore, the aims that may be considered ‘legitimate’ within the meaning of Article 6(1) of Directive 2000/78 and, consequently, appropriate for the purposes of justifying derogation from the principle prohibiting discrimination on grounds of age, are social policy objectives (judgment of 13 September 2011, Prigge and Others, C‑447/09, EU:C:2011:573, paragraph 81 and the case-law cited).
77In so far as the age limit introduced by the legislation at issue in the main proceedings may be regarded as being based on the training requirements of the post in question or the need for a reasonable period of employment before retirement, within the meaning of point (c) of the second subparagraph of Article 6(1) of that directive, it could justify the difference of treatment at issue in the main proceedings if ‘within the context of national law, [it is] objectively and reasonably justified’, within the meaning of that provision (see, to that effect, judgment of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraphs 64 and 65).
78Even in such a case, it would be necessary to examine whether the means used to achieve those objectives are appropriate and necessary.
79In that regard, first, the Court has no evidence to suggest that the age limit at issue in the main proceedings is appropriate and necessary having regard to the objective of ensuring the training of police commissioners.
80Secondly, as regards the objective of ensuring a reasonable period of employment before retirement, it is apparent from the information provided by the referring court that the retirement age for the State Police personnel is fixed at 61.
81It follows that national legislation fixing the maximum age at 30 years for participation in a competition aimed at recruiting police commissioners cannot, in principle, be considered necessary in order to ensure that the commissioners concerned have a reasonable period of employment before retirement for the purposes of point (c) of the second subparagraph of Article 6(1) of Directive 2000/78 (see, to that effect, judgment of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraph 72), in particular if the referring court confirms, after examining all of the relevant factors, that the duties of police commissioners do not essentially involve physically demanding tasks which police commissioners recruited at a higher age would not be able to perform for a sufficiently long period (see, to that effect, judgments of 12 January 2010, Wolf, C‑229/08, EU:C:2010:3, paragraph 43, and of 15 November 2016, Salaberria Sorondo, C‑258/15, EU:C:2016:873, paragraph 46).
82In those circumstances, and subject to confirmation by the referring court, the difference of treatment resulting from a provision such as Article 3(1) of Legislative Decree No 334/2000 cannot be justified under point (c) of the second subparagraph of Article 6(1) of Directive 2000/78.
83Having regard to all the foregoing considerations, the answer to the question referred is that Article 2(2), Article 4(1) and Article 6(1) of Directive 2000/78, read in the light of Article 21 of the Charter, must be interpreted as precluding national legislation which provides for the fixing of a maximum age limit of 30 years for participation in a competition aimed at recruiting police commissioners, in so far as the duties actually performed by those police commissioners do not require particular physical capacities or, if such physical capacities are required, it is apparent that such legislation, while pursuing a legitimate aim, imposes a disproportionate requirement, which it is for the national court to determine.
Costs
84Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Seventh Chamber) hereby rules: Article 2(2), Article 4(1) and Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, read in the light of Article 21 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation which provides for the fixing of a maximum age limit of 30 years for participation in a competition aimed at recruiting police commissioners, in so far as the duties actually performed by those police commissioners do not require particular physical capacities or, if such physical capacities are required, it is apparent that such legislation, while pursuing a legitimate aim, imposes a disproportionate requirement, which it is for the national court to determine.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.