Moraru v Romania: ECtHR Protects Against Size-based Discrimination

by | May 8, 2023

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About Marie Spinoy

Marie Spinoy obtained her law degree at KU Leuven in Belgium. In 2018 she completed the MJur in Oxford and started work as a PhD researcher on discrimination law at the Leuven Centre for Public Law, KU Leuven.

In November 2022, the European Court of Human Rights ruled that height and weight requirements for participation in the entrance examination for a programme of military medicine violate Article 14 of the European Convention on Human Rights (combined with Article 2 of Protocol No 1 to the Convention). The decision clarifies that a differentiation based on height and weight is covered by Article 14 and provides an interesting example of the ECtHR’s engagement with EU anti-discrimination law.

Ms Moraru wished to sit the entrance examination to study military medicine at a state-run university. Her application was rejected as she could not meet the (then) applicable height and weight requirements. Her appeal, relying on the EU case of Kalliri, was rejected by both the domestic courts and the national equality body. The Romanian authorities invoked the need for interoperability in their armed forces (i.e. for all active military staff to possess certain skills so they could be deployed interchangeably) and for each member of the military to possess a certain level of physical strength as justifications.

The Court first assessed whether the facts were covered by Article 14 ECHR’s discrimination prohibition (combined with Article 2 of Protocol No 1’s right to education). In other jurisdictions, similar requirements had been considered as potential sex (e.g. Kalliri , Rawlinson) or disability-based discrimination. Article 14 does not explicitly include height or weight but its non-exhaustive list allows for the addition of characteristics under ‘other status’. The Court considers that the applicant’s size is covered by Article 14, as a ‘genetic feature which represents a personal characteristic or “status’’. This makes Moraru an interesting precedent for proponents of legal protection against lookism, i.e. discrimination based on people’s physical appearance, suggesting that at least those looks-based differentiations related to genetic traits come within Article 14’s personal scope.

Whether other, more mutable aspects of physical appearance (cf. scholarship by Desir, Corbett, Sarpila et al.) are also included, remains to be seen, especially given the Court’s various formulations of what qualifies as ‘other status’. As to the material scope, the Court reiterated its prior case law that restrictions on access to higher education through entrance examinations, while in principle allowed, have to comply with Article 14 (e.g. Çam). The programme’s military nature (traditionally leading to a wide margin of appreciation for the member states,  [40]) does not alter this [47-48].

Kalliri concerned a uniform height requirement that constituted indirect discrimination against women. This does not apply to Moraru as the height and weight standards were different for men than for women. Based on size, however, the Court found that Ms Moraru was treated differently in comparison to other women who could meet the height and weight requirements. This intra-group comparison is followed by the question of justification. While the aim of protecting national security is legitimate, two elements specifically lead the Court to find a violation. Firstly, the domestic authorities had not shown there to be a connection between size and the requirement of strength. Secondly, the authorities had not clearly identified the specific and actual duties of medical officers or which of these required physical strength. The domestic courts had not further considered these issues either.

The Court’s proportionality analysis is influenced by the Court of Justice’s analysis of the EU’s employment-specific justification ground ‘genuine and determining occupational requirement’ in Kalliri. This reliance on EU anti-discrimination case law is not a first (e.g. Guberina and Jurčić). Remarkable however, is the way in which the Court transposes the EU case law on employment to that of higher education preparing for specific professions (cf. here on this connection). The two elements leading to a violation have also featured strongly in Kalliri and other occupational requirements cases (e.g. Vital Pérez and Tartu Vangla). The Court builds on these principles in this proportionality test for a characteristic not covered by EU law and finds it relevant that the domestic courts, in confining their analysis to gender discrimination, ‘failed to engage meaningfully with [Kalliri] and to examine its ramifications…’ [54].

By correctly recognising the parallel between these situations and applying the same level of protection, the Court’s engagement with EU law results in effective judicial scrutiny of overbroad requirements based on protected characteristics. This, and nothing less, appears to be the expectation of member states’ domestic courts.

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