An article by Michał Tomczak in the Rzeczpospolita daily (Kadry i Płace).
In his youth, as is known, every second boy wants to be a firefighter. Or two out of three. In being a firefighter there is on the one hand a challenge and a risk, clearly defined in meaning and effect. But there is also a feeling and fulfillment of the mission of saving important worldly values and helping others.
For some, this need remains for the rest of their life. The dilemma that was the subject of the case in which the Court of Justice of the European Union spoke was the question until what age can boys make these dreams come true.
Colin Wolf, born in 1976, volunteered to work for the fire department in 2007, at the age of 31. Beautiful knows for a firefighter. Nevertheless, his candidacy was rejected, as the German legislator set the age limit of 30 as the upper age limit.
Colin applied to the municipal court in Frankfurt am Main for damages. The lawsuit was dismissed. Colin therefore applied to the higher court of the Verwaltungsgericht Frankfurt am Main, seeking annulment of the judgment of the trial court and compensation. This court, in turn, asked 10 preliminary questions of a highly heterogeneous nature, seeking to establish compliance with the German law directive.
What is most surprising in this judgment is the discrepancy between the detail and meticulousness of the questions put by the German court and the simplifying nature of the reasoning that led the European Court to its final conclusion.
The final conclusion is that national regulations may set a maximum age limit beyond which man can not become a professional firefighter (in Germany).
The age criterion is one of the most difficult to objectively apply discriminatory criteria. It is known that age, or rather its effect in the form of physical fitness, determines the possibility of performing many professions. These situations are addressed by Art. 6 sec. 1 of the Anti-Discrimination Directive. This provision constitutes a specific rescue airlock for national legislations to enable them to apply the age criterion in employment without risking it being considered a discriminatory criterion.
Article 6 of the anti-discrimination directive 2000/78 / EC of 27 November 2000 contains a number of conditions which are exemptions from the principle of non-discrimination on the basis of age. Thus, different treatment based on age does not constitute discrimination, will be objectively and rationally justified by the aim of employment policy, labor market and vocational training, and measures taken to this end are appropriate and necessary. The German court aimed primarily at establishing the meaning of the notion of actions objectively and rationally justified by the objective of employment policy.
As part of these findings, the German court sought to determine whether the rationality parameter would be implemented, inter alia, in connection with the fact that employing younger firefighters primarily meets the interest of the employer, because as a result his social security burdens are objectively lower, and the employment of younger firefighters causes that they work longer than necessary to achieve the minimum retirement pension.
It must be said that the German court is extremely suspicious of the intentions of the German fire brigade.
The court does not answer questions
In fact, the Tribunal ignored the questions of the German court arising from Art. 6 of the Equality Directive, fully relying on Art. 4 of the directive, and not on Art. 6. Article 4, logically, is the most basic provision in terms of exemptions from discrimination and describes the general principle of exemptions, not just age-related (as does Article 6).
Pursuant to Art. 4 because Member States may find that the difference in treatment due to the characteristics related to one of the reasons listed in Art. 1 (i.e. including disability) does not constitute discrimination if, due to the type of professional activity or the conditions of its performance, given features are a significant and determining professional requirement, provided that the purpose is lawful and the requirement is proportional.
Rather, the Court’s general arguments emerge here, based largely on material provided by the German government. The thesis of this reasoning is surprisingly simple, because it says so much that a firefighter, in order to put out a fire properly, must be young, because an old firefighter – that is, according to the Court, one who is 45-50 years old, will have difficulties extinguishing a fire. And also saving people and their property.
According to the well-known exclusion of the thesis that specifies the dream, it is not about exclusion from one of the grounds for discrimination, but about a feature related to this cause, which should constitute a significant and determining professional requirement. In other words – it is not about age, but about age-related physical fitness.
The Court uses the argument that professional fire services fall within the scope of emergency services. Recital 18 of the directive states that that directive does not require those services to recruit persons who do not possess the required capacity to perform the tasks that may be entrusted to them, having regard to the legitimate aim of maintaining the operational capacity of those services. For this reason, in the opinion of the Tribunal, ensuring the operational capacity and proper functioning of the fire services is a legitimate aim within the meaning of Art. 4 sec. 1 of the directive.
The Tribunal goes further in the simplicity of its reasoning, because it refers to research in the field of occupational medicine and sports, which shows that with age the cardiovascular system and muscles reduce as well as the immunity of the human body. Thus, few officers over 45 years of age are physically fit enough to undertake firefighting activities. As for rescuing people, by the age of 50 the officers no longer have these skills.
Hence the final judgment, which says that Article 4 para. 1 of Council Directive 2000/78 / EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding the application of a provision of national law such as the rule at issue in the main proceedings, which provides for an upper age limit of 30 years for recruitment into the mid-level technical fire service.
It is easy to see that the Court had no reason to answer the question of whether such a rigid boundary, not taking into account an individual case such as that of Colin, was justified. There was no such question. However, this is a topic for a different preliminary question and a different ruling. The research cited in the extensive justification does not show that the materials provided by the German government prove how the physical fitness changes between a candidate for work aged 29 and 11 months and a candidate aged 30 and 1 month. Because proving that a 45-year-old man is usually less fit than a 30-year-old is not a great art. This insidious remark on my part is to show, however, that the law formulating general principles must be based on general assumptions, otherwise it will always be, as it is currently said: challenged. Well, that’s a completely different story.