Background
BG, a senior officer of the Italian Army Engineer Corps, was suspended from his duties without pay on 10 January 2022 after refusing to comply with the SARS-CoV-2 vaccination requirement that Italy had extended to military personnel under Decree-Law No 172/2021. Under the relevant Italian legislation, non-compliance rendered vaccination the essential condition for pursuing professional activity, triggering immediate suspension of the right to work—while preserving the employment relationship itself—for up to six months, with no salary or other remuneration payable during that period. BG was also prohibited, as a matter of Italian law, from taking up any alternative employment in a commercial company during the suspension.
BG challenged his suspension before the Consiglio di Stato (Council of State, Italy), raising three distinct EU-law objections. First, he argued that subjecting military personnel to mandatory vaccination while civilian colleagues working in the same command and performing functionally similar duties faced no such obligation amounted to direct discrimination on grounds of professional category under Article 2(2)(a) of Directive 2000/78/EC. Second, he argued that the mandate constituted indirect discrimination based on his “beliefs” under Article 2(2)(b), contending that his scientifically-grounded objections to the vaccine’s efficacy and the equivalence of 48-hour negative swab tests were protected under that provision. Third, he invoked Articles 1 and 24 of the Charter of Fundamental Rights, arguing that the unpaid suspension left him unable to provide for his wife and two minor daughters, violating human dignity and children’s rights.
The Consiglio di Stato, while indicating it did not share BG’s position on the merits, considered the questions sufficiently novel to warrant a preliminary reference to the Court of Justice under Article 267 TFEU.
The Court’s Holding
On the first question, the Court held that Article 2(2)(a) of Directive 2000/78 does not preclude Italy’s differential vaccination requirement. The Court reaffirmed that the grounds of discrimination enumerated in Article 1 of the Directive—religion or belief, disability, age, and sexual orientation—are exhaustive. The difference in treatment between military and civilian personnel stemmed solely from their membership in distinct professional categories governed by separate legal regimes, a ground that does not appear in Article 1. Because the alleged discrimination was not based on any listed ground, it fell entirely outside the Directive’s scope.
On the second question, the Court held that Article 2(2)(b) likewise does not preclude the mandate on grounds of indirect discrimination based on “belief.” The Court drew a clear line between protected “beliefs”—which extend to religious, philosophical, and spiritual conviction under Article 1 read with Articles 19 TFEU and 21 of the Charter—and mere “opinions,” including political or public-health opinions, which the Directive expressly does not cover. BG’s objections rested on scientific arguments challenging the effectiveness of the vaccine and the proportionality of the Italian authorities’ policy choices; these were opinions on public health, not beliefs within the meaning of the Directive. Since the difference in treatment lacked any nexus to a protected ground, it again fell outside the Directive’s scope, and the Court did not reach the justification analysis under Article 2(2)(b)(i).
On the third question, the Court held that Articles 1 and 24 of the Charter were inapplicable. Under Article 51(1) of the Charter, its provisions bind Member States only when they are implementing EU law. Because the Court had determined that the national vaccination mandate did not fall within the scope of Directive 2000/78, and no other provision of EU law was connected to the measure, Italy was not implementing EU law. The Charter therefore could not be invoked to review the suspension or its financial consequences for BG’s children.
Key Takeaways
- Directive 2000/78’s grounds of discrimination are exhaustive; differential treatment based on professional category (military vs. civilian) is not covered, regardless of how similar the workers’ tasks or environments may be.
- The concept of “belief” under Directive 2000/78 encompasses religious, philosophical, and spiritual conviction but does not extend to opinions on matters of public policy or science, including disagreement with official vaccination policy or its underlying epidemiological justifications.
- The EU Charter of Fundamental Rights cannot be invoked as a free-standing check on national employment measures unless the national measure in question implements a specific provision of EU law; the Charter’s reach rises and falls with the applicability of EU substantive law.
- A worker’s voluntary refusal to comply with a lawfully imposed vaccination requirement, rather than any failure of public authorities, is treated by the Court as the operative cause of the resulting disadvantages, including those suffered by dependants.
Why It Matters
This judgment clarifies the outer boundary of Directive 2000/78’s anti-discrimination framework in a post-pandemic context. Employers and Member States now have clear authority to impose occupation-specific health mandates without triggering EU equal-treatment obligations, provided the differential treatment tracks professional classification rather than a protected characteristic. The ruling forecloses a litigation strategy—apparent in several national jurisdictions during the COVID-19 period—of recharacterising vaccine hesitancy or scientifically-grounded policy disagreement as a protected “belief” in order to attract the Directive’s protections.
Equally significant is the Court’s reaffirmation of the Charter’s parasitic character: where EU substantive law does not apply, the Charter cannot supply an independent cause of action. This matters for future challenges to Member State public-health measures and other sector-specific workforce requirements that lack a direct hook in secondary EU legislation. Practitioners advising clients in analogous situations—mandatory testing, occupational health screenings, or sector-specific safety obligations—should assess whether any ground listed in Article 1 of the Directive is genuinely engaged before invoking Directive 2000/78 or Charter rights.