Last Updated on November 8, 2022 by LawEuro
Information Note on the Court’s case-law
November 2022
Judgment 8.11.2022 [Section IV]
Article 14
Discrimination
Unjustified refusal to allow a woman, whose height and weight were below the requisite limits for female candidates, to sit entrance examination to study military medicine: violation
Facts – The applicant, a woman, was not allowed to sit the entrance examination to study military medicine because her height (150 cm) and weight (44 kg) were below the thresholds set by an Order of the Ministry of National Defence (MND), which was valid at that time.
The applicant unsuccessfully challenged this decision before the domestic courts. She relied inter alia on the judgment of the Court of Justice of the European Union (CJEU”) in Kalliri. This judgment concerned the Greek law provision making candidates’ admission to a competition for entry into a police academy subject, whatever their sex, to a requirement that they be of a physical height of at least 1.70 metres. In CJEU’s view, such provision worked to the disadvantage of a far greater number of women than men and did not appear to be either appropriate or necessary to achieve the legitimate objective pursued.
Law – Article 14 in conjunction with Article 2 of Protocol No. 1:
The applicant had not been allowed to sit the entrance examination to study military medicine because of her size, a genetic feature which represented a personal characteristic or “status” that was capable of falling within the non-exhaustive list of prohibited grounds for discrimination set out in Article 14. The MND, in exercising its regulatory power, had set anthropometric limits in respect of all potential candidates for the country’s military educational establishments.
The anthropometric limits set by law had been different for male and female candidates. The applicant had not made any allegations to the effect that those limits had given rise to discrimination on the basis of sex. And the domestic courts had unequivocally found that the case had raised no issue of indirect discrimination on the basis of sex.
The applicant had been treated differently from other female candidates whose height and weight had fallen within the limits set by law. Thus, as compared to that group, the authorities’ decision to declare her unsuited to be admitted to sit the entrance examination to study military medicine had placed her at a disadvantage.
In the domestic proceedings, the MND had posited that the restriction at issue had served the purpose of ensuring that the military was fit to participate in any mission. It referred to a legislative provision, which, in its view, had required all personnel, including medics, to be able to carry the standard military equipment. That restriction, which could be argued to correspond to the legitimate aim of protecting national security, had been accepted as justified by the domestic courts.
Setting limits for access to military service did not, as such, run counter to the obligations set by the Convention in respect of Article 2 of Protocol No. 1. And the principle of interoperability of the military (to create a military force able to carry out all missions), referred to by the domestic authorities, might also justify imposition of restrictions.
However, a reasonable relationship of proportionality must exist between the means employed and the aim sought to be realised by those restrictions. In this respect, the domestic courts had taken for granted the MND’s assertions concerning the duties of a military physician without assessing their legal basis or legitimacy. However, there was no reference either in the parties’ submissions or in the court decisions to a legal instrument describing specifically the duties of a military physician or their relation to the other, non-medical officers. Similarly, the domestic authorities had not clearly identified the duties of military physicians or which of those duties would require physical strength. Furthermore, the domestic authorities had not pointed to any specific legal instrument that would support the allegation that the Romanian military had been, at that moment, organised under the principle of interoperability or that a military physician would be called to perform missions involving a certain amount of physical strength going above what was expected of a medic. No particular attention had been given by the domestic authorities to the status of a military physician and his/her actual duties and possible assignments.
The arguments raised by the authorities and accepted by the domestic courts seemed to indicate the necessity that all military personnel possessed a certain degree of strength. As a matter of policy, it was within the purview of the State authorities to set the criteria for the selection of candidates for military educational institutes. To that effect, in accordance with the principle of subsidiarity, the Court would not substitute itself for the national authorities in the issue of the recruitment to and organisation of the armed forces unless they were “manifestly without reasonable foundation”. The mere fact that other criteria could also be used in the process of selecting candidates was not in itself sufficient to invalidate those set by the authorities.
However, the national authorities had not shown that there was necessarily a link between the criteria selected by the legislature (including the minimum size of candidates) and the justification given for those restrictions (that was the need to determine each candidate’s strength). The applicant had expressly noted that point during the domestic proceedings, relying on the findings of the CJEU in Kalliri. The domestic courts, however, had failed to engage meaningfully with that judgment of the CJEU and to examine its ramifications highlighted by the applicant.
Overall, the domestic courts had not provided any justification concerning the connection between a candidate’s size and his or her strength. It did not appear that they had at their disposal any studies, research or statistical data, or any type of empirical evidence, that could have informed their decisions. They had equated size and strength, relying exclusively on the arguments put forward by the MND, and in doing so, had failed to advance any reasons for their findings.
Lastly, the anthropometric requirements had been recently eliminated from the MND’s list of criteria for selection and the applicant was now free to apply to the military educational institute of her choice. That fact alone did not retroactively remove the disadvantage that she had encountered during the admission process.
In the light of the above, the domestic authorities had failed to put forward any reasonable and objective justification for the disadvantage faced by the applicant in the admission process to study military medicine.
Conclusion: violation (unanimously).
Article 41: EUR 7,500 in respect of non-pecuniary damage.
(See also Ypourgos Esoterikon and Ypourgos Ethnikis paideias kai Thriskevmaton v Maria-Eleni Kalliri, case no. C‑409/16, 18 October 2017 (Kalliri))
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