Opposition to mandatory vaccination to remain in work did not constitute a belief under the Equal Treatment Directive.

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 remuneration or other emoluments during the period of suspension.

The applicant was an engineer and worked predominantly in an office by himself but did have frequently have meetings with other personnel (both military and civilian).  He refused to have the vaccination citing its safety but stated he was willing to be tested every 48 hours for Covid 19.

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.

The claimant alleged 6 grounds of discrimination:

(1) That he was treated differently compared to civilian personnel who would have had similar duties.

(2) Indirect discrimination based upon his objection to receiving the vaccination and that his willingness to be tested was sufficient.

(3) The suspension without pay was contrary to the EU Charter as he could not support himself and family.

(4) Could not have his right to annual paid leave during the suspension.

(5) Denied effective legal protection.

(6) Compensation for the discrimination he suffered by means of exemplary and dissuasive sanction.

The European Court of Justice outlined that there is protection for religion or belief.  The issue was whether the choice not to be vaccinated constituted a belief for this part. To this end, it does not extend to political or trade union belief and it does not cover artistic, sporting or other beliefs/preferences. It had already been decided in Vabricka by the European Court of Human Rights that mandatory vaccination does not infringe the ECHR as personal opposition does not fall within the concept of belief.  Accordingly, under EU law it similarly does not meet the requirements of a philosophical belief and does not afford protection.

The role of the European court here is not to provide an answer to the case but to provide an interpretation to the EU Law at play.  Here it was found that opposition to mandatory vaccination does not constitute a belief to the extent that it is protected under the Equal Treatment Directive.  The European Court did acknowledge that it was some two years since Covid-19 was regarded as a public health emergency, yet they still found that they were being asked these questions relating to the application of the law.

You can read the case in full here.