On 18 October 2017, the First Chamber of the Court of Justice delivered its judgment in the case C-409/16 Kalliri concerning the compatibility with the principle of equal treatment between men and women of the Greek law making candidates’ admission to the competition for entry to the Greek Police School subject to a requirement that they have a physical height of at least 1.70m without shoes, regardless of their sex.
The factual background of the case goes back to 2007, when a Greek lady, Ms Kalliri, submitted an application to participate in the competition for enrolment in the Greek Police School. Her application was rejected on the grounds that she did not have the minimum height of 1.70m required under the relevant Greek legislation. In the domestic litigation that was initiated shortly afterwards, the Administrative Court of Appeal in Athens found that the relevant Greek law was contrary to the constitutional principle of equality between men and women. Subsequently the Greek Council of State referred a question to the Court of Justice regarding the conformity of the Greek legislation with Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, which was applicable ratione temporis to the facts of the case.
The Court of Justice first noted that the provisions of Directive 76/207/EEC applied not only to a person seeking employment but also to the selection criteria and recruitment conditions of that employment. Secondly, the Court stated that the Greek legislation in question did not constitute direct discrimination, since de jure it imposed the same conditions on male and female candidates. Nevertheless, it constituted indirect discrimination. According to settled case law, indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men. In this particular case, the Court underlined that a much larger number of women than men are of a height of less than 1.70m, which means that de facto women are very clearly at a disadvantage compared to men as regards their admission to the Greek Police School. It appears from the referring judgment of the Greek Council of State that, according to scientific studies invoked by the applicant, the average height of Greek men aged 18 is 1.77m, whereas that of women of the same age is 1.63m. Therefore, the introduction of a requirement of minimum height of 1.70m deprives women of access to the Police School to a much greater extent than men, since only 19% of the Greek female population aged 18-24 meets this physical requirement.
The Greek government tried to justify the measure on the grounds that it enables the effective accomplishment of the tasks of the Greek Police and that the possession of certain particular physical attributes, such as being of a minimum height, is a necessary and appropriate condition for achieving that aim. However, the Court rejected that argument by holding that although the exercise of police functions involving the protection of persons and goods, the arrest and custody of offenders and the conduct of crime prevention patrols may require the use of physical force requiring a particular physical aptitude (though not necessarily related to height), the fact remains that certain other police functions, such as providing assistance to citizens or traffic control, do not clearly require the use of significant physical force. Furthermore, the argument supporting the introduction of different minimum heights for men and women is reinforced by the previous legislative regime regarding Greek Police, which imposed a minimum height of 1.70m for men and 1.65m for women, as well as national legislation regarding the armed forces, port police and the coast guard, which requires a minimum height of 1.70m for men and 1.60m for women. The Court finally emphasized that the objective of ensuring the operational capacity and proper functioning of the police services could be achieved by measures which are less disadvantageous to women such as specific tests allowing their physical ability to be assessed. This judgment has certainly been welcomed by Greek ladies, who admittedly are not particularly famous for their height!