Preliminary ruling from the European Court of Justice based upon application of Equal Treatment Directive regarding the steps taken by Member States in response to the pandemic.

The claimant was a member of the Italian military. In response to the Covid-19 pandemic, the Ministry of Defence imposed a Covid-19 vaccination requirement on military personnel. Failure to become vaccinated would result in immediate suspension from work. The employee would not face any disciplinary consequences, and the employment relationship would be maintained. However, there would be no pay for this period which could be up to six months.

The claimant was suspended without pay. The claimant challenged that decision by an extraordinary appeal to the President of the Italian Republic. The claimant argued that it was discriminatory with reference to the Equal Treatment Directive. Notably it was argued that it was because civilian personnel working in the same environment were not subject to the same requirement. He argued it was indirect discrimination on the basis of his beliefs especially as he was willing to undergo swab testing every 48 hours and that it was an infringement based upon the EU Charter regarding him being prevented from providing for his wife and children.

There had already been a preliminary ruling in relation to this case in 2025 and this was a further preliminary ruling. In terms of the argument regarding direct discrimination based upon professional category, the European Court of Justice held that the grounds listed in Article 1 of the Directive were exhaustive and there was no such protected characteristic of professional category.

In terms of indirect discrimination based upon belief the Court held that there had to be a distinction between religion/belief compared to political opinion. The latter were not protected within the Directive.  In terms of the claimant’s view regarding public health, vaccination and efficacy of swab testing as an alternative – it was held that these were public health opinions rather than constituting beliefs. As a result, the difference in treatment did not fall within the scope of the legislation.

Finally on the EU Charter point – it was held that it only applied when the Member States were implementing EU Law. The Italian legislation here did not have an apparent connection with any other provision of EU law and could not be regarded as implementing EU Law therefore the arguments were inapplicable.

This case came back round to the EU Court of Justice to provide a preliminary ruling on issues relating to coronavirus and the mechanisms put in place by Member States. As matter of the Equal Treatment Directive the court made it clear here that there was a distinction between belief and opinion and the latter would not be protected within the space of EU Law. To this end, the views on vaccinations could not receive protection and the indirect discrimination claim failed. Additionally, the attempt to widen the categories of protected characteristic to include professional category also failed with the court making it clear that the categories are exhaustive.

You can read the case in full here.