Strasbourg Observers

In the Strasbourg Club: Discussing ageism with youngsters. A chat on Ferrero Quintana v Spain

January 24, 2025

Eva Brems

It is our first meeting of the New Year, and we are happy to be ‘at it’ again, in the late afternoon, a few hours before the first snow of winter will make our journey home an arduous one. Six of us in the room, and five on the screen have been discussing some of the last ECtHR cases of the Old Year. When Tom summarizes the case of Ferrero Quintana v Spain, on age discrimination, I look at the bright faces around me, and wonder about the median age in the room(s). It may be under thirty. Some claim that working among young people keeps one young. Maybe. It definitely can make one feel old as well.

The case is about alleged age discrimination in the entry conditions for the police force of the Autonomous Community of the Basque Country. These stipulated that candidates had to be under 35 at the time of submitting their application. Even though he had already reached that age, the applicant was allowed to take part in the selection process on a provisional basis in 2014. This provisional arrangement was on account of a pending legal challenge to the age cap before a Spanish court. The applicant successfully completed the various selection tests, which included a physical fitness test. He was then authorized, still on a provisional basis, to complete a training course (9 months in 2015) and a one-year traineeship. At the end of this traineeship, he was not recruited on the ground that he was over the age limit. In the meantime, the domestic court, after a preliminary ruling of the CJEU, had cleared the age limit. Later, the age limit was raised from 35 to 38 and as a result the applicant was appointed as a police officer in 2019.

In Strasbourg, he claimed that his exclusion on the ground of his age in 2016 constituted discrimination. The Court unanimously rejected his claim. Three concurring opinions, by judges Serghides, Elósegui and Krenc, showed that behind this unanimity, there were some doubts and discussions.

‘I love that’, says Sirin at one point in our discussion of the case. ‘I love how one judge says she had to overcome many doubts, and another shares how complex he finds the matter of age discrimination. It makes you see the sincerity of the human effort behind a case’. Thinking of the humans who make up the Chamber in this particular case, I make a mental note to check the age of the Chamber members. I would find out that the members of this chamber are aged between 49 and 70, with the average age exactly at 60. ‘We are all inevitably effected by the passage of time’, writes Judge Elósegui, in a passage that prompts Tom to share that he has recently been finding a few grey hairs on his own scalp.

When we are done joking about this remarkable find, Lena jumps to the heart of the debate.  ‘In this case, two reasons are advanced for the age cap: one is the link between age and physical fitness, which they claim is a job requirement, and the second is the need of a balanced age pyramid. I can see the relevance of these arguments, but in the proportionality reasoning, I do not find an actual answer to the question why an absolute exclusion of persons under a certain age is really necessary’. ‘Such a young age cap too’, Ramon jumps in, ‘my gut feeling is that seeing 35 as the end of one’s young and fit age is a bit out of touch in a time when people are expected to work longer and longer’. Lena continues her reasoning: ‘it seems to me that there are alternatives to this absolute cap, such as taking age into account in the ranking of candidates’. ‘My feeling exactly’, I add, ‘even quota, which are generally considered far-reaching measures, would have been a much lighter alternative than a blanket exclusion of anyone over 34. But the Court is not asking the question about less restrictive alternatives, because it decides that the margin of appreciation is a wide one.’

Returning to the text of the judgment, we find two arguments for the wide margin. One is that the case is about access to public service, an area in which states should have discretion. The other is the reasoning that ‘not all differences in treatment based on age can be considered as invidious kinds of discrimination’, and that the applicant does not belong to a vulnerable group (para 85). Sylvia says ‘it would seem that age discrimination is considered hierarchically lower, or less important, than some other types of discrimination’. ‘I can see where this comes from’, nods Luke, ‘considering that the law constantly uses age limits, as inevitable simplifications or proxies, and this is often not problematic’. ‘But still,’ Ramon follows up, ‘there is so much ageism that is problematic, both toward the old and toward the young’. We all agree with that. I do not know what examples the youngsters are thinking of right now; on my side, I am reminded of the constant stories of ageism my parents are sharing; and how I have offered them several times to sue someone (like their bank or car dealer) for age discrimination.

‘When Judge Krenc says that age discrimination is ‘complex’, and ‘not easy to grasp’, he seems to be referring to the same thing, Lena interjects, ‘like when he suggests that questioning one age limit would lead to questioning all other age limits, and he refers to the age requirements for driving and voting. But I felt uneasy about this argument.’ ‘I love this separate opinion of Krenc’s’, Helen shouts from the screen, ‘it is so thoughtful and clear. I might nominate it as one of the best of the year’. There is a lot of murmur in assent. But I feel the need to throw in an objection: ‘The opinion is indeed very nice, the type I might want to use it in class. But the bit just cited by Lena is a Pandora’s Box argument at the heart of his reasoning, and I find such arguments generally inappropriate for a court.  Of course, age discrimination is complicated, and drawing lines between what is acceptable and what is discriminatory is not easy. Yet drawing such lines, and offering guidance to domestic law makers and adjudicators, is exactly the job of the European Court of Human Rights. And once they do this in a well deliberated manner, the next cases will become easier, for this Court and for everyone who looks to them for guidance’.

In the meantime, Maud has her raised her electronic hand on the screen. ‘I want to dig a bit more in the age-as-a-proxy-for- physical-fitness argument. It has a prima facie validity, but here the Court is dealing with an applicant whose fitness is proven by his passing the physical tests. The Court gets around that point with the argument that it was important that these physical capabilities were maintained for a long enough period of time. So, they are implicitly saying that in ten or fifteen years, this applicant will no longer have the necessary level of physical fitness. This is a hypothesis about the future, which may be statistically true, but is not necessarily true in his case, and he has no way of showing that.’  ‘That is true’, I agree, ‘I have so many friends who are in their fifties and sixties, and who are extremely fit. It seems to be a fashion these days for early retirees to run marathons, and ride bicycles in the Alps. Some of these people are probably fitter than some of you.’ I can see in their eyes that they do not buy this last statement. Still, many of the youngsters nod in agreement. ‘So, my point is that speculation about the future decline of someone’s capabilities is not a fair basis for denying him access to a job. We could draw the parallel with the decline of intellectual capabilities such as memory, which is a fact of life for everyone from their fifties onwards, as my doctor explained to me earlier this week. In our job as academics, the brain is our main work instrument. Would the university be allowed to set a maximum age for hiring professors at 40 or 45, in order to get enough years out of us before our brains start to decline? I mean, this is a line of argument that could justify age-based exclusions in a lot of professions.’ ‘I get your point’, Sophie says, with a twinkle in her young eyes, ‘but aren’t you now using a Pandora’s Box argument yourself?’. She is right, with that quick and sharp young mind of hers. ‘Yes, but’, Maud jumps in, ‘the ECtHR follows its own precedent, and for that reason it is often useful to think through some lines of reasoning and consider what they might mean in a different context. In this case, the generalisation of physical decline with age has me worried for a different reason, namely the use of statistics. Think of racism, and racial profiling. Statistics may show a link between ethnicity and certain types of crime, but still we all agree that ethnic profiling by the police to stop and interrogate people is unacceptable. I do not like how in this case unequal treatment of an individual is justified by using statistics about his age group.’

Luke agrees and makes the comparison with bans affecting young people, giving the example of minimum ages for certain jobs, such as judges. ‘Here, age can be a proxy for maturity or knowledge, but these can be tested, so why use the proxy of age as an exclusion criterion and not let exceptional individuals prove that they are fit for the job? That is unfair, especially in jobs that have no upper age limit’. Indeed, Sophie adds, ‘like president of the USA, for which the minimum age is 35, but there is no maximum’. ‘Waw yes’, Tom continues, ‘if there is one job in the world where it would be useful to select on physical and intellectual fitness, that is the one’. ‘For the current and future term in office’, Ramon adds. Hilarity and many witty remarks follow. And so, we end up with a consensus in favour of some age caps after all.

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