Greece, Council of State – Plenary Session, 17 September 2021 ΣτΕ 1363/2021

Identification of the case

• Non-discrimination (art. 21 CFREU)
• Equality between women and men (art. 23 CFREU)

• Arts. 4, 5, 25 par. 1, 116 par. 2 of the Greek Constitution
• Law 3896/2010
• Art. 3 Law 1753/1919
• Legal Decree 444/1970
• Art. 4 Law 1009/1980
• Law 3079/2002

• Arts. 2, 3 par. 2 ΤΕU
• Art. 157 par. 4 TFEU
• Dir. 2006/54

Summary of the case

The appellant submitted an application for her participation in the competition for the positions of Probationary Port Guards of the General Category, but her application was rejected on the grounds that she did not have the minimum height of 1.65 m (but 1.63 m) required by the applicable national legal provisions for women candidates. The appellant filed an application for annulment and a request for suspension against the refusal of the Administration to allow her to participate in the relevant competition. The Piraeus Administrative Court of Appeal held that she was allowed to take part in the competition procedure, during which she succeeded in the sports tests and, after the written examinations, she was included in the list of successful candidates of that competition. The appellant was not, however, called for classification because her application for annulment was rejected on the grounds that there was no direct or indirect discrimination between the sexes in the present case because the legislature had established a different minimum height for women candidates, taking into account the existing gender difference in height. In parallel, according to the court, the provision of a minimum height for the classification of female port guards is in any case constitutionally acceptable due to the mission and responsibilities of the Coast Guard, a military-coordinated body.

• Administrative judicial enforcement

• Annulment of the decision No. .… /… / 2008/8.9.2008 rejecting the appellant’s participation to the competition.
• Obligation to the administration to proceed with the appellant’s classification in the successful candidates on the basis that she succeeded in the relevant sport tests and the written examination.

The Court firstly recognized that the legislator or the administration can impose specific (physical) requirements for the security bodies on the frame of their wide discretion and taking into account the special characteristics of such professions dealing directly with public interest purposes. However, it underlined that these restrictions shall not go beyond what is necessary for the fulfillment of the mission of each body, respecting the constitutional principles of equality, meritocracy and proportionality. In regards to the specification of height restrictions, both the average height of the population, from which the set limits should not deviate excessively, as well as the biological difference between the sexes shall be taken into account, too. This requires, in principle, the establishment of different minimum height limits for male and female candidates, proportionally, achieving substantial equality in the candidates’ access to these bodies. Exceptionally, a requirement for a common minimum height regardless of gender of the candidates may be set, but this common limit shall be set at a sufficiently low level so as not to cause gender exclusion. Considering the case facts, the court found that even if women’s minimum height basis is 5 cm lower than the males’, the women’s percentage of failure in the competition because of the height restrictions was significantly higher than that of the males. This fact constitutes discrimination against women in accessing the profession of port guard, disapproved of by EU law and the Greek Constitution. What is more, the court held that the establishment of that specific height limit is not documented on grounds of suitability and necessity. Finally, the court, taking into account the evolution of the above-mentioned regulatory legislation, held that it lacks complete coherence and systematicity in the pursuit of the aforementioned purpose of public interest.

Role of the Charter and role of the general principles on enforcement

Even though neither the appellant nor the Council of the State explicitly mentioned Charter provisions, it could be argued that the Charter’s provisions, especially those about equality and proportionality are still relevant. This is because article 21 CFREU deals with the fundamental issue of non- discrimination, of which the case was about.

• Effectiveness
• Proportionality

The principle of effectiveness was used by the court several times as a basis for assessing whether the height limitations imposed, served the purpose of public interest that they intended to. Consequently, the court focused on determining whether the legal provisions regarding height restrictions for female participants can influence the exercising of the profession of a Port Guard or not. In other words, it searched whether not meeting this height threshold can lead to negative effects in the Port Guard Body’s function and its special mission related to national security. Moreover, the court underlined that the effectiveness test shall also apply to the criteria on which such limitations were established, so as to ensure that judicial control could take place. In the specific case, the court held that the 1.65m. height entry restriction in order for a woman to be accepted in the body of port guards, does not influence the aforementioned elements this specific Body has to serve.

The principle of proportionality possesses a significant position when it comes to evaluate whether a limitation or a specific requirement are in accordance with the Greek Constitution. In the case under discussion, the court underlined the links between effectiveness and proportionality from the perspective that restrictions and limitations are allowed as long as they are effective and necessary in respect to the principle of proportionality. Consequently, the court found that the proportionality principle was breached as the imposition of a height threshold is not justified by effectiveness and necessity.

Elements of judicial dialogue

• Dialogue among same level national courts within the same Member State

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
• Dialogue between high court - lower instance court at national level

• CJEU C-222/84, Johnston v Chief Constable of the Royal Ulster Constabulary
• CJEU C-100/95, Kording v Senator für Finanzen
• CJEU C-243/95, Hill and Stapleton v The Revenue Commissioners and Department of Finance
• CJEU C-273/97, Sirdar
• CJEU C-285/98, Kreil
• CJEU C-187/00, Kutz-Bauer
• CJEU C-77/02, Steinicke
• CJEU C-196/02, Nikoloudi
• CJEU C-169/07, Hartlauer
• CJEU C-341/08, Petersen
• CJEU C-123/10, Brachner
• CJEU C-476/11, HK Danmark
• CJEU C-416/20 PPU, Generalstaatsanwaltschaft Hamburg
• CJEU C-258/15, Salaberria Sorondo
• CJEU C-258/20, INSS
• CJEU C-161/18, Villar Láiz
• CJEU C-209/18, Commission v Austria (Ingénieurs civils, agents de brevets et vétérinaires)
• CJEU C-274/18, Schuch-Ghannadan
• CJEU C-223/19, YS (Occupational pensions of managerial staff)

Conform interpretation with EU law as interpreted by the CJEU.

The Greek court referred several times to CJEU cases in order to support its arguments by creating a liaison to relative cases at an EU level. As a result, the Council of State interpreted accordingly the European and national law mentioned in the decision.

Annulment of the Ministerial Decision under discussion.

Reform of the administrative decision regarding the appellant’s application to be in accordance with the court decision.

Additional notes on the decision

Potential legislation change in regard to the minimum height required to apply to work for several security and military bodies.

This decision will serve as an argumentation to support other potential cases with discriminatory requirements.