Colin Wolf v Stadt Frankfurt am Main.

• Jurisdiction: European Union
• Celex Number: 62008CJ0229
• ECLI: ECLI:EU:C:2010:3
• Date: 12 January 2010
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-229/08

Case C-229/08

Colin Wolf

v

Stadt Frankfurt am Main

(Reference for a preliminary ruling from the

Verwaltungsgericht Frankfurt am Main)

(Directive 2000/78/EC – Article 4(1) – Prohibition of discrimination on grounds of age – National provision setting a maximum age of 30 years for the recruitment of officials to posts in the fire service – Aim pursued – Genuine and determining occupational requirement)

Summary of the Judgment

Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on grounds of age

(Council Directive 2000/78, Arts 2(2)(a) and 4(1))

Article 4(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding national legislation which sets the maximum age for recruitment to intermediate career posts in the fire service at 30 years.

Although it introduces a difference of treatment on grounds of age for the purposes of Article 2(2)(a) of Directive 2000/78, that national legislation may be regarded, first, as appropriate to the objective of ensuring the operational capacity and proper functioning of the professional fire service, which constitutes a legitimate objective within the meaning of Article 4(1) of the directive, and, second, as not going beyond what is necessary to achieve that objective, since the possession of especially high physical capacities may be regarded as a genuine and determining occupational requirement within the meaning of that provision for carrying on the occupation of a person in the intermediate career of the fire service, and the need to possess full physical capacity to carry on that occupation is related to the age of the persons in that career.

(see paras 29, 39-41, 44, 46, operative part)

JUDGMENT OF THE COURT (Grand Chamber)

12 January 2010 (*)

(Directive 2000/78/EC – Article 4(1) – Prohibition of discrimination on grounds of age – National provision setting a maximum age of 30 years for the recruitment of officials to posts in the fire service – Aim pursued – Genuine and determining occupational requirement)

In Case C‑229/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Verwaltungsgericht Frankfurt am Main (Germany), made by decision of 21 April 2008, received at the Court on 28 May 2008, in the proceedings

Colin Wolf

v

Stadt Frankfurt am Main,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President of the Third Chamber, acting for the President, E. Levits, P. Lindh (Rapporteur), Presidents of Chambers, C.W.A. Timmermans, A. Rosas, P. Kūris, A. Borg Barthet, A. Ó Caoimh and L. Bay Larsen, Judges,

Advocate General: Y. Bot,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 7 July 2009,

after considering the observations submitted on behalf of:

– the German Government, by M. Lumma, acting as Agent,

– Ireland, by D. O’Hagan, acting as Agent, assisted by P. McGarry BL,

– the Italian Government, by I. Bruni, acting as Agent, assisted by W. Ferrante and M. Russo, avvocati dello Stato,

– the Commission of the European Communities, by J. Enegren and B. Conte, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 3 September 2009,

gives the following

Judgment

1 This reference 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, ‘the Directive’).

2 The reference was made in the course of proceedings between Mr Wolf and Stadt Frankfurt am Main (City of Frankfurt am Main) (Germany) concerning the latter’s refusal to consider Mr Wolf’s application for an intermediate career post in the fire service because he had exceeded the age limit of 30 years.

Legal context

Community legislation

3 The Directive was adopted on the basis of Article 13 EC. Recitals 9, 11, 18 and 25 in the preamble to the Directive read as follows:

‘(9) Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realising their potential.

…

(11) Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons.

…

(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.

…

(25) The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.’

4 As stated in Article 1 of the Directive, its purpose 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.

5 Article 2 of the Directive states:

‘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;

…’

6 Article 3(1)(a) of the Directive provides:

‘Within the limits of the areas of competence conferred on the Community, 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’.

7 Article 4(1) of the Directive reads as follows:

‘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.’

8 Article 6(1) of the Directive provides:

‘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:

(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

(b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

(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.’

9 Article 17 of the Directive reads:

‘Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied...