Glosa do Wyroku Europejskiego Trybunału Praw Człowieka w sprawie Moraru vs. Rumunia z dnia 8 listopada 2022 r. – dyskryminacja na gruncie „warunku dostępu do pracy i nauki”

Abstract

The commented judgement concerns an allegation of discrimination in the recruitment process for studies preparing to become a military doctor, when the national authorities denied a female-applicant the right to take the military medical school entrance exam on the basis of her height (she was 150 cm tall and weighed 44 kg). The Ministry of National Defence argued that the law required all military personnel to be able to perform any mission, and that this meant being able to carry a standard soldier’s kit weighing around 57 kg. The European Court of Human Rights found that the reasons why the applicant was treated differently from other women – who met the weight and height requirements – were not “relevant and sufficient”. In particular, the national courts accepted the MND’s argument equating size with strength. Even though size had recently been eliminated from the list of selection criteria and that the applicant was now free to apply to the military academy of her choice, the Court found that she had been unfairly disadvantaged at the time of her application. The co-authors of the gloss agree with the position of the Court and the reasoning presented, while addressing both: the philosophical grounds of the equality principle and the evolution of the judicial dialogue between the ECHR and the CJEU.