The Court of Justice of the European Union (CJEU) has backed this Thursday that a Member State established during the pandemic mandatory vaccination against covid-19 exclusively for the military personnel of its Ministry of Defense, without extending that requirement to civilian employees, understanding that this difference in treatment "is not discriminatory" under Union law.
In a ruling issued following a preliminary ruling by the Italian Council of State, the High European Court further determines that a soldier's refusal to be vaccinated due to doubts about the efficacy or possible risks of the vaccines does not constitute a "conviction" protected by European anti-discrimination legislation, but rather an "opinion" that falls outside its scope of protection.
The origin of the litigation dates back to 2022, when an officer of the Italian Ministry of Defense was removed from his post after failing to comply with the obligation to be vaccinated against SARS-CoV-2 (covid-19), a measure approved in the context of the health emergency and aimed solely at military personnel.
The soldier challenged the sanction, arguing that it constituted direct discrimination against civilian personnel performing comparable tasks and indirect discrimination against those who opposed vaccination for personal reasons. He also denounced the violation of his fundamental rights, as the suspension implied the complete loss of his salary and, therefore, of the resources necessary to support his family.
However, the Court recalls that European legislation on equal treatment in employment combats discrimination based on specific grounds, such as religion, convictions, disability, age, or sexual orientation, and that, in this case, the difference in treatment between military and civilian personnel is based on belonging to a "distinct professional category," a reason that "is not included within the scope" of the European directive on equal treatment in employment.
The CJEU also dismisses the existence of indirect discrimination linked to the applicant's personal convictions. According to the ruling, the soldier based his refusal to be vaccinated on references to scientific studies and potential risks associated with the vaccines, with the aim of "questioning the choices of the Italian authorities regarding public health."
For this reason, the High Court concludes that these reasonings do not express a philosophical, spiritual, or religious conviction protected by Union Law. The motivations alleged by the plaintiff, the resolution emphasizes, "are not included in the concept of "conviction", but in an opinion that is not covered by European legislation."
NO PROTECTION UNDER THE CHARTER OF FUNDAMENTAL RIGHTS
The European Court also refuses to examine the compatibility of the measure with the EU Charter of Fundamental Rights, invoked by the military member due to the economic consequences derived from his suspension.
In this regard, the CJEU stresses that the Charter is only applicable when Member States execute or develop Union Law and concludes that, in this matter, "there is no link" between the vaccination obligation in question and European regulations. Consequently, the judgment adds, "it is not possible to declare a possible violation" of said Charter.
The decision of the Court of Justice does not directly resolve the national procedure, but it establishes the interpretation of Union Law that the Italian jurisdiction must now apply and that will serve as a reference for eventual analogous cases in other Member States.