Judgment Ferrero Quintana v. Spain - Applicant complaining of age-limit of 35 for recruitment to Ertzaintza

issued by the Registrar of the Court   ECHR 275 (2024)   26.11.2024   Maximum age of 35 for recruitment as officer in Basque Country police force   was not discriminatory in present case   In today’s Chamber judgment1 in the case of Ferrero Quintana v. Spain (application no. 2669/19) the   European Court of Human Rights held, unanimously, that there had been:   no violation of Article 1 of Protocol No. 12 (general prohibition of discrimination) of the European   Convention on Human Rights   The case concerned the imposition of a maximum age of 35 for a public competition to fill several   police-officer positions in the Autonomous Community of the Basque Country (Ertzaintza). The   applicant, who had been provisionally authorised to take part in the various competition tests –   where he ranked 49th out of 60 – was ultimately not recruited on the grounds that he was over the   age-limit.   The Court found 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 relevant time, had   been necessary to ensure and maintain the functional capacity of that autonomous police force.   The Court also noted that the maximum age had been raised to 38 in 2019 and that this new rule   had been accompanied by a transitional measure that allowed candidates who had successfully   completed the competition on a provisional basis in previous years, despite having been over the   age of 35 (in particular the applicant), to be admitted immediately to the Ertzaintza.   A legal summary of this case will be available in the Court’s database HUDOC (link).   Principal facts   The applicant, Asier Ferrero Quintana, is a Spanish national who was born in 1978. In 2014 he took   part in a public competition to fill 60 positions of the lowest rank in the police force of the   Autonomous Community of the Basque Country (Ertzaintza). Among the preconditions for taking   part in the competition was the requirement that candidates should be over 18 and under 35 years   of age at the time their applications were submitted.   Even though he had reached the age of 35 the previous year, the applicant and other individuals in   the same situation were provisionally authorised to take part in the competition pending the final   decision of the courts in an action brought by another candidate to challenge the validity of the age-   limit.   Thus, the applicant successfully completed the various competition tests and was ranked 49th out of   60. He was then authorised, still on a provisional basis, to complete a training course (in 2015) and a   traineeship (until 2016). However, he was ultimately not recruited at the end of his training and   traineeship on the ground that he was over the age-limit. The domestic remedies he pursued against   this decision were unsuccessful.   1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,   any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges   considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final   judgment. If the referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   The applicant was nevertheless placed on a reserve list (bolsa de trabajo) for temporary officers of   the local police of the Basque Country and worked as an officer on a temporary basis from January   2018 to June 2019.   In 2019 a legislative amendment to the Basque Country Police Act raised the age-limit from 35 to   38. This applied to candidates who had successfully completed the public competitions of 2014,   2015 and 2016 and had been refused a position on account of their age. Consequently, the applicant   was appointed as a police officer in the Ertzaintza in September 2019.   Complaints, procedure and composition of the Court   Relying on Article 1 of Protocol No. 12 (general prohibition of discrimination), the applicant   complained about his not being recruited and alleged that he had been the subject of discrimination   on grounds of age. He submitted that the medical examinations and physical aptitude tests he had   undergone had confirmed that he was physically apt to hold the position in question.   The application was lodged with the European Court of Human Rights on 24 December 2018.   Judgment was given by a Chamber of seven judges, composed as follows:   Georgios A. Serghides (Cyprus), Acting President,   Georges Ravarani (Luxembourg),   María Elósegui (Spain),   Darian Pavli (Albania),   Peeter Roosma (Estonia),   Andreas Zünd (Switzerland),   Frédéric Krenc (Belgium),   and also Milan Blaško, Section Registrar.   Decision of the Court   The Court observed that 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 account of his age. He had therefore been treated differently on the ground of   his age, which constituted “other status” within the meaning of Article 1 of Protocol No. 12.   The Court took the view that there had been two comparable categories of individuals in the present   case: individuals up to the age of 35 who wished to take part in the public competition to fill   positions of the lowest rank in the Ertzaintza and those over the age of 35 wishing to take part in the   same competition. It further held that 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 was of the view   that the national authorities had enjoyed a wide margin of appreciation in the present case.   Moreover, it observed that the purpose of the decision not to admit the applicant as a police officer   of the lowest rank in the Ertzaintza had not been to exclude him but rather 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 clarified that   it could allow that age was a relevant factor in determining a person’s physical aptitude. It noted   that the duties of officers of the police force of the Autonomous Community of the Basque Country   2 were not administrative in nature, but operational or executive, requiring particular physical   aptitude.   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, and not in a static manner, solely at the time of the recruitment   competition. Thus, even assuming that the 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 Court also took note of the statistics provided by the Government to substantiate alleged fears   of a general ageing of Ertzaintza personnel. The Court acknowledged 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. In its view, 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. The national authorities were better placed than it was   to set an age-limit for admission to the police services.   In consequence, 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 relevant 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 for   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.   There had therefore been no violation of Article 1 of Protocol No. 1 to the Convention.   Separate opinions   Judges Serghides, Elósegui and Krenc each expressed a concurring opinion. These opinions are   annexed to the judgment.   The judgment is available only in French.   This press release is a document produced by the Registry. It does not bind the Court. Decisions,   judgments and further information about the Court can be found on www.echr.coe.int. 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