Case summary

Deciding Body
Court of Cassation
Corte di Cassazione
National case details
Date of decision: 04.02.19
Registration ID: 3196/2019
Instance: Cassation (review)
Case status: Final
Area of law

Relevant principles applied

Life-cycle diagram

  1. 21 July 2006

    Decision of the Tribunal of Rome

  2. 15 October 2014

    Decision of the Court of Appeal of Rome

  3. 4 February 2019

    Decision of the Court of Cassation

Identification of the case

Fundamental rights involved
  • Non-discrimination (art. 21 CFREU)
EU law sources
  • Article 2(2) of Directive 76/207/EEC
  • Article 19 of the Directive 2006/54/EC

Summary of the case

Facts of the case

Following the height requirement of 160 cm needed to apply to the selective procedure to become a train service manager at Trenitalia s.p.a., Mrs. XXX was excluded from the procedure. She took legal action against Trenitalia s.p.a. before the Tribunal of Rome, claiming that the selection procedure constituted indirect discrimination because it could favour men (usually higher than 160) without a reasonable justification. Mrs. XXX claimed that the requirement mentioned above violated Article 4 of l. 125/1991 of implementation of Directive 2002/73/EC on the implementation of the principle of equal treatment for men and women regarding access to employment, vocational training and promotion, and working conditions. The Tribunal of Rome recognised an instance of indirect discrimination according to Directive 2002/73/EC and ordered Trenitalia s.p.a. to hire Mrs. XXX from 21 July 2006, when Mrs. XXX received the communication concerning physical unfitness. Trenitalia appealed against this judgment before the Court of Appeal of Rome. The Court of Appeal confirmed the interpretation of the Tribunal of Rome and found that height requirement was not objectively justified and was not proven to be relevant and proportional to the duties of the position. For these reasons, the Court of Appeal of Rome rejected the claim. Trenitalia s.p.a. brought the case before the Court of Cassation, claiming a lack of indirect discrimination and, consequently, seeking for the annulment of the Court of Appeal of Rome’s decision.

Measures, actions, remedies claimed/applied

Rejection of the claim of Trenitalia s.p.a. and order to pay all the costs arising out of the court case. Moreover, in virtue of the judgment of the Court of Appeal of Rome, Trenitalia s.p.a. was ordered to hire Mrs. XXX.

Reasoning (legal principles applied)

The Court of Cassation reiterated that dispositions, criteria, and practice could not be qualified as indirect discrimination only if, according to Article 2(2) of Directive 76/207/EEC, they are justified by a legitimate purpose, and the means used for achieving the purpose are appropriate and necessary. According to this provision, there is not the same possibility in case of direct discrimination, as stated by the Court of Justice in Kleist C-356/09, 18 November 2010. On the evidentiary aspect, the Court of Cassation clarified that under Article 19 of Directive 2006/54/EC (according to the interpretation of the Court of Justice in Kelly C-104/10, 21 July 2011), the defendant benefits from a mitigated burden of proof, and is only required to prove the absence of discrimination only if the plaintiff provides suitable and precise factual elements of the discrimination. The Court of Cassation, recalling the Court of Appeal of Rome’s motivation, reaffirmed that the Court of Appeal correctly applied the principle of law under which in case of the requirement of a minimum height for men and women, the judge has to evaluate the functionality of the requirement in order to assess whether or not it amounted to indirect discrimination. The fact that the height requirement was common to both men and women showed that Trenitalia s.p.a. did not consider the different standard height between the two sexes, in conflict with the principle of equality. The provision hid indirect discrimination against women, who are usually not as tall as men. Furthermore, on the probative level, Trenitalia s.p.a. could not prove that the height requirement was necessary for security reasons, implicitly demonstrating a lack of reasonableness of the requirement. The Court of Cassation rejected Trenitalia s.p.a.’s claim, ordering it to reimburse all the expenses of the proceedings to Mrs. XXX.

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

Reference to national provisions

Article 4 of law n. 125/1991, modified by Article 2 of legislative decree n. 145/2005 as transposition of Directive 2002/73/EC

Relevant principles applied
  • Proportionality
Principle of proportionality

The proportionality principle was applied to evaluate whether the height requirement could be considered necessary to the duties of the position of train manager, for example, for security reasons. On this basis, the Tribunal and the Courts judged that there was discrimination against women.

Elements of judicial dialogue

Cited CJEU
  • CJEU, C-356/09, Pensionsversicherungsanstalt v Christine Kleist
  • CJEU, C-104/10, Patrick Kelly v National University of Ireland (University College, Dublin)

Additional notes on the decision

Impact on national case law

This decision has been relied upon in several cases related to indirect discrimination in the context of labour law.

Case author

Nicoletta Bezzi, University of Groningen

Published by Chiara Patera on 1 June 2021