The prohibition of age discrimination in italian public competitions. Some considerations on the decision of the E.U. Court of Justice, Third Section, No. 914 of 3 June 2021, concerning the age limit for admission to the italian competition for appointmen

Abstract

This paper analyses the recent judgment no. 914 of 3 June 2021, rendered by the Court of Justice of the European Union in the case C-914/19, Ministry of Justice v. G.N., following the preliminary referral raised by the Council of State, Section IV, with ordinance no. 8154 of 19 September 2019, in relation to the age limit for admission to the italian competition for appointment of notaries. The work takes place through the analysis of the principle of non-discrimination in the European Union and international legal system and of the EU legislation on age discrimination, too. In particular, the main provisions of Directive 2000/78/EC are analyzed, as well as the evolution of the relevant case-law, especially with reference to the legitimate options of age discriminatory treatment, as provided by Articles 2.2, 2.5, 4.1 and 6.1 of Directive 2000/78 / EC. After providing a general framework of the discipline and jurisprudence in the field of discriminatory treatment based on age, the author analyzes, on the basis of the judgment of the CJEU no. 914/2021, the age limit provided for by italian law on access to the notary profession and its compatibility with European Union law, illustrating the main legal issues inherent in the Court’s reasoning. By analyzing the decision no. 914/2021, the paper underlines the contribution of the EU Court in confirming the margin of appreciation, allowed to States, in the definition of the causes which could justify age discrimination. The final section of the paper proposes some reflections upon the standard of the European regulatory framework and the indications provided by the jurisprudence of the CJEU, with respect to the issue of assessment indices that should allow national judges to verify the legitimacy of discriminate age-based treatment. In particular, also in the light of two recent preliminary referrals raised by the Italia’s Council of State to the Court of Justice of the European Union, the author questions the future scenarios, in which disputes about age discrimination and preliminary referrals before the CJEU may be a rise, or there might be an outright elimination of age limits in most public competitions. However, both options would resolve into a paradox, because, despite of the wide margin of appreciation allowed to EU States about age discrimination, countries would end up not taking decisions: one way, since “the crucial word” is given to the CJEU, the other way would avoid “substantial” decisions in the formulation of internal social and labour policies – regarding selection and hiring of public employees.