Summary

The competition notice for enrolment in Greek police schools requires applicants, whichever their gender, to be at least 1.70m in height. This disadvantages a far greater number of women than men and does not appear either appropriate or necessary to achieve the legitimate objective it pursues.

Facts

Ms Kalliri made an application to the police station of Vrachti to participate in a competition to enter police school, accompanied by the required supporting documents. The police station returned the documents to her, on the grounds that she was not of the minimum required height of 1.70m. The administration refused to allow Ms Kalliri to participate in the competition.

National proceedings

Ms Kalliri disputed the station’s refusal to process her application before the Administrative Court of Appeal in Athens (Dioikitiko Efeteio Athinon), which upheld her claim, holding that the provision in the Presidential Decree that sets out the height requirement was contrary to the constitutional principle of equality of the sexes. It annulled the provision. The Interior Minister and the Minister for Education and Religious Affairs appealed against the decision before the referring court: the Symvoulio tis Epikratias (Council of State). The latter decided to stay the proceedings and refer a question to the ECJ.

Question put to the ECJ

Must the provisions of Directives 76/207 and 2006/54 be interpreted as precluding a law of a Member State, such as that at issue in the main proceedings, which makes candidates’ admission to the competition for entry to a police school of that Member State subject, whichever their sex, to a requirement that they are of a physical height of at least 1.70m?

ECJ’s findings

The ECJ found that the legislation at issue fell within the ambit of Directives 76/207 and 2006/54 – and more specifically, within Directive 76/207 (the ‘Equal Treatment Directive’).

The Equal Treatment Directive aims to apply the principle of equal treatment for men and women as regards access to employment, including promotion and vocational training. Article 3(1)(a) of the Equal Treatment Directive prohibits all direct and indirect discrimination on the grounds of sex in the public and private sectors, in relation to conditions for access to employment, self-employment and occupations, including selection criteria and recruitment conditions. The Directive applies to someone seeking employment and the selection criteria and recruitment conditions for the job. It also applies to someone like Ms Kalliri, who applies to take part in a competition for entry to a police school in a Member State. By providing that those who are under 1.70m cannot take part, the Greek law in question affects workers’ recruitment conditions and therefore lays down rules relating to access to employment in the public sector within the meaning of Article 3(1)(a) of the Equal Treatment Directive.

The ECJ found that the law at issue constituted prima facie unlawful discrimination, prohibited by the Equal Treatment Directive. However, it noted that the law treats applicants identically, whatever their sex – and consequently, there was no direct discrimination, although there could be indirect discrimination.

The ECJ consistently holds that indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of many more women than men. In the case at hand, the referring court had itself found that a much larger number of women than men were under 1.70m, putting them at a clear disadvantage compared to men as regards admission to the police competitions. Therefore, the ECJ found prima facie indirect discrimination.

However, there would be no unlawful indirect discrimination if the measure in question was objectively justified by a legitimate aim, and the means of achieving that aim were appropriate and necessary – and that is for the referring court to assess on the facts.

However, the ECJ went on to provide some guidance based on an assessment of the arguments raised by the parties. The Greek Government claimed that the aim of the law was to enable the Greek police to operate effectively and that possession of certain physical attributes, such as being of a minimum height, was a necessary and appropriate condition for achieving that aim. ECJ case law backs up the argument that ensuring the operational capacity and proper functioning of police services is a legitimate aim.

However, was the height requirement at issue a suitable way to attain that objective – and did it go beyond what was necessary? The exercise of police functions involves protecting the public and protecting property. It also involves the arrest and custody of offenders and the conduct of crime prevention patrols, and these may require physical force. But some police duties, such as providing people with assistance or traffic control, do not require significant physical force (Vital Pérez, C-416/13). And even if all police duties required physical force, this attribute would not necessarily be linked to being of a certain minimum height, and it would therefore not necessarily follow that shorter people would naturally lack the required force.

In addition, until 2003 under Greek law there were different minimum heights for men and women – 1.70m for men and 1.65m for women. Ms Kalliri noted that the Greek armed forces, the port police and coast guard also all had different minimum heights for men and women – and crucially, for all of them the minimum height for women was 1.60m.

Therefore, the DCJ found that the aim pursued by the law could have been achieved by measures that were less disadvantageous to women, such as preselection tests of physical ability. Subject to the assessment that the national court would make on the facts, the ECJ felt the law in question was not justified.

Ruling

Directives 76/207 and 2006/54 must be interpreted as precluding a law of a Member State, such as that at issue in the main proceedings, which makes candidates’ admission to a competition for entry to a police school of that Member State subject, whichever their sex, to a requirement that they be of a physical height of at least 1.70m, since that law works to the disadvantage of a far greater number of women than with men and does not appear either to be appropriate or necessary to achieve the legitimate objective that it pursues, which it is for the national court to determine.