The Influence of the European Court of Justice

The Third Chamber (Sala III) of the Spanish Supreme Court overturned its earlier decision of 24 november 2015, which had found in favor of five candidates who were excluded from attending the School to become members of the National Guard because they had reached their 30^th birthday during the year 2012.  They had alleged that this age limit constituted discrimination contrary to the principle of equality and free access to public service positions proclaimed by the Constitution.

The Spanish Supreme Court modified the criteria established in this earlier case due to a judgment of the Grand Chamber of the Court of Justice of the European Union (CJEU) of 15 november 2016 in response to a pre-judicial question presented by the Contentious-Administrative Chamber of the Superior Court of Justice of the Basque Country. The European Court of Justice responded that the requirement of 35 as the maximum age to enter into the Ertzaintza (the Basque police force) was not discriminatory because  it rested on an objective and reasonable basis, which excluded any violation of Directive 2000/78/CE, relative to the establishment of a general framework for equality of treatment in employment.

Given the differences in the cases it appears to this observer that the Spanish Supreme Court could also have set 35 as the maximum age to enter the National Guard School without violating the EU Directive or the CJEU's decision, but it clearly seems to have chosen not to.