Last Updated on October 31, 2020 by LawEuro
Information Note on the Court’s case-law 244
October 2020
Napotnik v. Romania – 33139/13
Judgment 20.10.2020 [Section IV]
Article 1 of Protocol No. 12
General prohibition of discrimination
Justified necessity of recalling applicant from diplomatic post abroad after announcing pregnancy: no violation
Facts – The applicant’s diplomatic posting abroad was terminated immediately after announcing her second pregnancy.
Law – Article 1 of Protocol No. 12
General principles: In principle, the same standards developed by the Court in its case-law concerning the protection afforded by Article 14 are applicable to cases brought under Article 1 of Protocol No. 12. In this vein, the Court had previously acknowledged, albeit indirectly, the need for the protection of pregnancy and motherhood (see Petrovic v. Austria, 27 March 1998, 20458/92; Konstantin Markin v. Russia [GC], 30078/06, 22 March 2012, Information Note 150; Khamtokhu and Aksenchik v. Russia [GC], 60367/08 and 961/11, 24 January 2017, Information note 203; Alexandru Enache v. Romania, 16986/12, 3 October 2017, Information Note 211).
Application to the present case:
Only women could be treated differently on grounds of pregnancy, and for this reason, such a difference in treatment would amount to direct discrimination on grounds of sex if it was not justified. A similar approach had also been taken by the Court of Justice of the European Union (CJEU) (see the Dekker judgment of 8 November 1990, C-177/88; the Webb judgment of 14 July 1994, C-32/93).
Having established that the applicant had been treated differently on grounds of sex, the Court accepted that the decision to recall the applicant had pursued the legitimate aim of the protection of the rights of others, notably Romanian nationals in need of consular assistance in Slovenia. The domestic authorities and the Government had considered that the early termination of the applicant’s posting abroad had been justified by the fact that her absences for medical appointments and maternity leave would have jeopardised the functional capacity of the embassy’s consular section. During the applicant’s previous absence from the office consular services had been suspended and requests for assistance redirected to neighbouring countries. It was thus clear that, bearing in mind the nature of her work and the urgency of the requests she was called upon to deal with, the applicant’s absence from the office had seriously affected consular activity in the embassy.
Although her work conditions had changed because of the early termination of her posting abroad, that change could not be equated with a loss of employment. The consequences for the applicant of treatment had not been of the same nature as those expressly prohibited by the domestic equal opportunity laws and the State’s international commitments in the field of protection of pregnancy and maternity. Given that she had continued to be promoted by her employer despite her extended absence, it did not appear that she had suffered any long-term setbacks in her diplomatic career. Further, the domestic courts had expressly reiterated that the impugned decision had not been a disciplinary measure.
The Court concluded that while the decision had been motivated by the applicant’s pregnancy, it had not been intended to put her in an unfavourable position. Notwithstanding the narrow margin of appreciation afforded to them, the domestic authorities had provided relevant and sufficient reasons to justify the necessity of the measure.
Conclusion: no violation (unanimously).
(See also Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol No. 12 to the Convention)
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