February 11, 2025
By Lien Aerts
The case of Ferrero Quintana v Spain concerns an age limit applied in a recruitment procedure for police officers. The same recruitment procedure has been assessed by the CJEU, where another candidate also challenged the existence of the age limit (Salaberria Sorondo). Having exhausted all domestic remedies, Mr Ferrero Quintana turned to the ECtHR, which had to rule on the same situation. In Ferrero Quintana v Spain, the ECtHR refers to the Salaberria Sorondo judgment for essential parts of its reasoning. Hence, this blog post will elaborate on the CJEU’s case law concerning the justification of age limits in recruitment to compare it with the present judgment. These elements will then be critically scrutinized to ultimately conclude that the ECtHR adds little to the CJEU’s reasoning, resulting in the absence of a critical evaluation of the case.
The case involves Mr. Ferrero Quintana, a Spanish national who applied for a position as a first-grade agent within the autonomous police force of the Basque country (known as Ertzaintza). Among the required qualifications for recruitment was the obligation to be younger than 35 years old at the time of application. Although Mr. Ferrero Quintana had reached the age of 35 the previous year, the applicant was provisionally allowed to participate in this competition. He subsequently attended all the tests and completed them. The applicant carried out the training and internship periods at the end of the first phase of the tests. Still, his application was rejected afterward because he was over 35.
Later, a reserve list of interim agents of the Basque police was created, including Mr. Ferrero Quintana. For approximately six months, he was employed as an interim agent. Following a legislative amendment, the disputed age limit was extended from 35 to 38 years. Consequently, the applicant was appointed as a police officer of the Ertzaintza.
Although he was eventually appointed as an agent, Mr. Ferrero Quintana could not participate in the public competition for promotion and the professional development programme due to insufficient seniority within the Ertzaintza. His harm should, therefore, be assessed in light of the impossibility of applying for that promotion competition and the programme.
The ECtHR examines this case in light of Article 1 of Protocol No.12 to the Convention, which contains a general prohibition of discrimination.
In determining whether Mr. Ferrero Quintana’s treatment pursued a legitimate aim, the ECtHR refers to the CJEU ruling in Salaberria Sorondo. The CJEU concluded that ensuring the operational character and proper functioning of police services constitutes a legitimate objective. In the present case, the Government of Spain argues that it sets an age limit to ensure the good physical performance of the agents, as well as the effectiveness and proper functioning of the Ertzaintza. In the ECtHR’s opinion, this constitutes a legitimate aim under Article 1 of Protocol No.12 (§§88-89).
The Court continues by conforming to the government’s first argument that age is a relevant factor concerning a person’s physical capabilities and that the nature of the functions of the agents of the Ertzaintza is executive, which implies a particular physical aptitude. Therefore, possessing specific physical abilities can be considered a genuine and determining professional requirement for exercising the functions of an agent (§92).
The Court then considers whether the contested age limit responds to the need to ensure a balance in the age pyramid. In doing so, it takes into account statistical data provided by the government. It also recognizes that the agents can benefit from certain privileges starting at 56, which results in the period of full operational activity being shorter than in other professions (§§93-94).
All these arguments lead the ECtHR to conclude that Mr. Ferrero Quintana had been subjected to a differential treatment due to his age. Still, this difference was appropriate in light of the objective of ensuring the operational character and proper functioning of the police service. In addition, it did not go beyond what was necessary to achieve that objective, taking into account the country’s wide margin of appreciation (§§97-100). Therefore, Article 1 of Protocol No.12 has not been violated.
Both the CJEU and the ECtHR have held that the age limit used for recruiting agents in Ertzaintza does not cause discrimination based on age. The outcome of both judgments is the same, and the reasoning for justifying the age limits is very similar in both decisions, as will be evident from what follows.
It is particularly striking that the ECtHR begins its examination by stating that in the present case, the national authorities have a wide margin of appreciation for various reasons, such as the fact that the case concerns access to employment in public bodies, 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 (§§83-85). The Court addresses this extensively to emphasise the state’s wide margin of appreciation, while the actual assessment of the legitimate aim is conducted very briefly.
The Court refers to the legitimate aim identified in the Salaberria Sorondo case. The CJEU is said to have conducted “a highly detailed analysis” of the contested measure and the arguments presented by the domestic authorities. Subsequently, it merely compares the legitimate aim accepted by the CJEU to the one proposed by the Spanish Government in the Ferrero Quintana case (§88). The ECtHR then states that it agrees with the reasoning of the Spanish Government, considering that if the decision not to allow the applicant to access a position as a police officer is based on the fact that he exceeded a certain age, it aimed not to exclude him but to ensure the exercise of the functions of this police force (§89).
After the referral to Salaberria Sorondo, this final assertion by the Court adds little to the reasoning regarding the legitimate aim. Intentionally creating discrimination by imposing an age limit in a recruitment process is rarely, if ever, the aim of a contracting state. It is simply cheaper and easier to set an age limit than to implement annual, individual physical tests. This was, for instance, the case for Belgian firefighters, for whom the age limit was already abolished several years ago (in contrast to the CJEU Wolf ruling). Instead, they introduced annual physical tests to ensure every operational firefighter had the required physical abilities. Moreover, anti-discrimination law does not require the demonstration of an intention to discriminate. If implementing a certain measure results in discrimination against specific categories of people, that alone suffices.
A mere reference to the “highly detailed analysis” of the CJEU, followed by a weak addition to conclude that the reason cited by the Spanish Government constitutes a legitimate aim, fails to convince.
In the case law of the CJEU, the Court examines whether the required capacities for performing the job can constitute a genuine and determining professional requirement.
In the case of age limits, this often involves the possession of exceptionally high physical capacities. The CJEU assesses the nature of the tasks to be performed in the function and whether they are of a physical nature (Wolf §40, Vital Perez §38-39, Salaberria Sorondo §34, Ministero dell’Interno §46).
The CJEU then examines whether the physical capacities are linked to age. This can be demonstrated by presenting scientific data proving that possessing particular high-level physical capacities diminishes as a person ages (Wolf §41). If both elements are fulfilled, a genuine and determining professional requirement is established (Wolf §40, Vital Perez §41, Salaberria Sorondo §36, Ministero dell’Interno §47).
The ECtHR, with references to the CJEU case law, concludes that the functions of the Ertzaintza are executive. Physical failures that occur in these functions can have significant consequences. Therefore, possessing physical capabilities constitutes an essential and determining professional requirement (§92).
Although the CJEU (and the ECtHR) accept that possessing exceptionally high physical capacities forms an age-related characteristic, it is essential to note that this does not always hold in individual cases. While it is generally true that physical capacities decline with age, exceptions to this premise exist. For example, some candidates may no longer possess the required physical capacities by 30, while conversely, a 60-year-old marathon runner may still have these capacities. These exceptions demonstrate that physical capacities are not always age-related and suggest that a concrete assessment would be more appropriate than applying an abstract age limit.
Subsequently, the CJEU considers whether that age limit is proportionate (Wolf §41-44, Vital Perez §45-57, Salaberria Sorondo §39-48, Ministero dell’Interno §57-71). In other words, the Court needs to examine whether that limit is appropriate for achieving the objective pursued and does not go beyond what is necessary. (Wolf §42, Vital Perez §45). In doing so, the Court consistently considers the same elements, namely the tasks performed in the job and whether they require specific physical abilities, the scientific evidence justifying the exact age limit, and the organization’s age pyramid.
While the ECtHR only looks at whether the distinction can be justified under Article 1 Protocol No.12, the Court regularly refers back to the case law of the CJEU, thereby covering all elements.
The performed tasks
In the case law of the CJEU, the tasks performed in the job play a decisive role in assessing proportionality. In both the Vital Perez and Salaberria Sorondo rulings, the Court examined cases concerning the application of age limits in recruitment for Spanish police units.
In the Vital Perez judgment, local police officers were primarily responsible for the arrest and custody of offenders, crime prevention patrols, and traffic control (Vital Perez §38, Salaberria Sorondo §40). In contrast, in Salaberria Sorondo, the Ertzaintza’s essential mission is to protect people and property, ensure that individuals can freely exercise their rights and freedoms, and ensure citizens’ safety (Salaberria Sorondo §40), which constitute operational duties (Salaberria Sorondo §41).
The ECtHR adopts the same terminology and reasoning as the CJEU, stating that the agents of the Ertzaintza perform functions that are not administrative but executive (§92). It then refers to the same responsibilities identified by the CJEU, given that both cases concern the same recruitment procedure (§§41 and 92).
Once again, the ECtHR adds little to the existing case law of the CJEU, and a detailed analysis or reasoning is absent. Furthermore, both the ECtHR and the CJEU define the tasks of the Ertzaintza in rather vague and general terms, especially when compared to the detailed description of local police duties in Vital Perez. This lack of specificity makes assessing the concrete physical capacities required for the role challenging.
These considerations lead to the conclusion that the reasoning of both the ECHR and the CJEU on this aspect appears somewhat arbitrary.
The scientific evidence
Then, the CJEU states in its case law that the government must provide scientific data to demonstrate that few employees beyond a certain age still possess sufficient physical capacities to perform a given function and justify why the age limit was set at that exact age. (Vital Perez §52-53, Wolf §41, Salaberria Sorondo §42, Ministero dell’Interno §59).
The ECtHR also takes such statistical data into account in its judgment and refers to the fact that it received information from the Spanish government, allegedly proving that agents of the Ertzaintza aged over 55 cannot be considered to be in full possession of the necessary physical capabilities (§92).
The same consideration can be made here under the genuine and determining occupational requirement. Although this scientific data or evidence is undoubtedly correct, it represents a general assessment rather than an individual one. There can always be exceptions to the rule that, on average, a person at a certain age no longer possesses the required physical capacities.
As a result, applying an absolute age limit—which automatically and definitively excludes all individuals over 35 from becoming a police officer—is difficult to justify, even if scientific data support this age limit.
In anti-discrimination cases, both before the CJEU and the ECtHR, the individual situation always needs to be considered. However, in this case, the unequal treatment of Mr. Ferrero Quintana as an individual is being justified by statistics relating to his age group, which raises considerable concerns (View also shared by the Strasbourg Club).
Such a strict age requirement in a recruitment process should be avoided as much as possible.
A less far-reaching alternative could be implementing physical tests. This alternative is also considered in the case law of the CJEU (Vital Perez §55, Salaberria Sorondo §47, Ministero dell’Interno §67). These physical elimination tests allow for a case-by-case assessment of an individual’s physical capabilities. If a candidate passes the physical test, it can be assumed they possess the required abilities to perform the job. If a less restrictive alternative is available, the proportionality test should fail, and the case is indeed one of (unjustified) age discrimination.
However, the ECtHR does not consider this alternative in its reasoning, as it agrees with both the Spanish Government and the CJEU that: “The possession of particularly enhanced physical capabilities should be considered not in a static manner, solely at the time of the recruitment examination, but dynamically, taking into account the years of service that the agent will have to perform after being recruited.” (§92) The ECtHR again adopts the CJEU wording (Salaberria Sorondo §47, Ministero dell’Interno §64).
Age, however, is never permanent or static but transforms over time , making it a dynamic criterion. Rights that cannot be enjoyed at one point in time can be exercised at a later stage of life and, thus, at a different age – think, for example, of voting and pension rights. Conversely, this reasoning also holds true, for rights that must be waived when one is older are once enjoyed when the person was younger- think, for example, of social law arrangements such as youth holidays or the professional integration allowance for job-seeking school leavers. Thus, having physical capabilities must indeed be viewed dynamically. The ECtHR claims that if a test is used, the physical abilities are only statically examined at that specific moment. The static nature of the physical test at recruitment is not unavoidable, however. It can be addressed by introducing it at regular intervals, for example, annually, to assess whether physical capabilities remain present at all times. Moreover, a person who is fit enough to pass the physical examinations at the time of recruitment, even if they are older than 35 years, is highly likely to be able to perform these tasks for several more years.
The age pyramid
As a third element of justification, the CJEU assesses in its case law whether there is a proper balance between young employees, who can take on physically demanding tasks, and older employees, who, due to their age, no longer possess the required physical capacities and are therefore assigned to other, less operational and often more administrative tasks. According to the CJEU, this could justify recruiting young workers, as it is necessary to gradually replace the oldest officers in the force with younger personnel capable of performing physically demanding tasks (Wolf §43, Vital Perez §56, Salaberria Sorondo §44-46, Ministero dell’Interno §66).
The ECtHR also considers the so-called age pyramid in its judgment. The Court states that “the contested age limit responds to the need to ensure a balance in the age pyramid and thus avoid a high proportion of personnel being concentrated in the older age groups.” In doing so, the Court takes statistical data provided by the Spanish Government into account (§93).
However, some critical observations can be made regarding this criterion as well. Firstly, reference can be made to an argument raised by Mr. Ferrero Quintana. He argues that only performance-related and capability-related criteria should be considered and evaluated in the selection competition so that only the most fit candidates are chosen. He contends that it is absurd to select individuals who, despite being younger, performed worse in the competition than older candidates (§65). The applicant rightly argues that choosing the most fit or capable candidate would be more logical than simply the youngest candidate.
Secondly, it is noteworthy that the ECtHR relies on statistical data from 2009, which predicted that by 2025, more than half of the Ertzaintza agents would be between 55 and 65 years old. Ferrero Quintana, however, presents more recent data, dated December 2018, showing that only fifty-four active Ertzaintza employees were in the 60 to 65 age bracket (§66). The Court, however, dismisses this argument with the brief explanation that this data, which became available after adopting the contested measure, cannot suffice to deprive the age limit established at that time of any justification based on the earlier forecasts (§93).
Although the importance of scientific data is emphasized multiple times in the judgment, the ECtHR appears to rely solely on hypothetical projections from the Spanish government made 15 years ago. In contrast, more recent data from the applicant, reflecting the current situation, is simply disregarded when assessing the necessity of a current age limit. This is very striking given the fact that the ECtHR has previously ruled that “when it comes to assessing the impact of a measure or practice on an individual or group, statistics which appear on critical examination to be reliable and significant will be sufficient to constitute the prima facie evidence the applicant is required to produce.” (D.H. and Others v. the Czech Republic §188) So, statistical data can only be used if it is sufficiently reliable (which does not seem to be the case here) and to prove a prima facie case of discrimination, whereas in this case, it concerns a justification of discrimination.
Ultimately, the ECHR reached the same conclusion as the CJEU in Salaberria Sorondo: “The age limit is appropriate to the objective. It does not go beyond what was necessary to achieve that objective” (§97). No discrimination based on age has occurred.
While the CJEU’s reasoning in Salaberria Sorondo failed to convince due to the arbitrary elements included in its assessment (as described above), the ECHR took things a step further in a negative sense. Not only did it blindly refer to the existing reasoning of the CJEU, adding little to nothing to the legal argumentation, but it also hid behind the wide margin of appreciation that member states enjoy. By doing so, the Court failed to grasp the core issue and avoided a critical assessment of the case.
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