Fire, fire

Wolf v Stadt Frankfurt am Main

The European Equal Treatment Directive 2000 outlawed discrimination on the grounds of age, among other things, subject to certain qualifications. In Wolf v Stadt Frankfurt am Main, the European Court of Justice (ECJ) said that the state was justified in imposing a maximum recruitment age for firefighters as it was a genuine occupational requirement with a legitimate objective.

Basic facts

Mr Wolf applied for a post with the Frankfurt fire service on 4 October 2006. The next selection procedure was due to take place in August 2007 but in February 2007 Mr Wolf (who was born in December 1976) was told his application could not be considered because he was over the age limit of 30.

The fire service said it applied the limit because the job of firefighter involved physically demanding tasks such as fighting fires, rescuing people and dealing with dangerous animals.

Mr Wolf claimed he had been discriminated against on the ground of age contrary to the Equal Treatment Directive. The German court referred the matter to the ECJ.

Relevant law

Article 1 of the directive sets down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation in employment and occupation.

Article 4(1) states, however, that it is not discriminatory for member states to treat someone differently as long as the difference is “based on a characteristic related to any of the grounds referred to in Article 1” and “constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’

ECJ decision

The ECJ said that, as a result of the rule applied by the fire service, people over 30 were being treated less favourably than those under 30 contrary to the directive. The question was whether the difference in treatment could be justified.

It noted that the stated aim of setting the age limit for recruitment to intermediate career posts in the fire service at 30 was to ensure the operational capacity and proper functioning of the professional fire service. This, said the Court, constituted a legitimate objective within the meaning of Article 4(1) of the Directive.

Given the very physical nature of the requirements of the job, it followed that having “especially high physical capacities” could be a genuine occupational requirement within the meaning of article 4(1) for “carrying on the occupation of a person in the intermediate career of the fire service”.

But could older people not also have those “physical capacities”? The Court noted the uncontested scientific data produced by the German Government which showed that “respiratory capacity, musculature and endurance diminish with age. Thus very few officials over 45 years of age have sufficient physical capacity to perform the fire-fighting part of their activities”. It therefore accepted that the need to be fully physically fit was related to age.

The Court also agreed that it was proportionate to the aims of the fire service that recruits should be under 30 when they joined because they were still able to complete the two year training programme and then give at least 15 or 20 years to the very physical job of firefighter. “By contrast, if he is recruited at the age of 40, that period will be a maximum of 5 to 10 years only. Recruitment at an older age would have the consequence that too large a number of officials could not be assigned to the most physically demanding duties”.

The Court concluded therefore that setting a maximum age for recruitment to the fire service was firstly “appropriate to the objective of ensuring the operational capacity and proper functioning of the professional fire service and, second, as not going beyond what is necessary to achieve that objective”.