In Ypourgos Esoterikon and anor v Kalliri, the European Court of Justice has held that imposing a minimum height requirement of 1.7m for enrolment in Greek police schools constituted indirect sex discrimination that was not objectively justified. Far more women than men were disadvantaged by the minimum height requirement, and while the requirement sought to pursue the legitimate aim of enabling the effective accomplishment of the various functions of the police force, certain police functions, such as providing assistance to citizens or traffic control, did not require the use of particular physical aptitude. Furthermore, it is not necessarily the case that a person’s height corresponds to his or her physical aptitude to carry out certain functions. The aim that the requirement sought to pursue could be achieved by measures that were less disadvantageous to women – for example, by carrying out pre-selection aptitude tests.
In Greece, a national law required candidates who wished to enter police school to train as officers to be a minimum height. The law required any candidate (male or female) to be at least 1.7m tall, without shoes. When K’s application to join the police school was rejected on the basis that she did not meet the minimum height requirement (since she was only 1.68m tall), she presented a complaint before the Greek Court of Appeal which held that the requirement was contrary to the constitutional principle of equality of the sexes. The Greek Interior Minister and the Minister for Education and Religious Affairs appealed against that decision. The Council of State decided to stay the proceedings to ask the ECJ whether the minimum height requirement was compatible with the EU Equal Treatment Directive (No.76/207), which prohibits, among other things, unjustified indirect sex discrimination.
The ECJ noted that the referring court itself had found that a much larger number of women than men are of a height of less than 1.7m, such that, by the application of that law, women were very clearly at a disadvantage compared with men in relation to the admission requirements to the Greek police school. It therefore followed that the law was indirectly discriminatory. As to the question of whether the requirement could be objectively justified as a proportionate means of achieving a legitimate aim, the Greek Government had submitted that the aim of the law was to enable the effective accomplishment of the task of the Greek police, and that possession of certain particular physical attributes, such as being of a minimum height, was a necessary and appropriate means of achieving that aim. The ECJ noted that previous case law had established that ensuring the operational capacity and proper functioning of the police service constituted a legitimate aim. However, the ECJ held that, while it was true that the exercise of police functions involving the protection of persons and goods, the arrest and custody of offenders and the conducting of crime prevention patrols might require the use of physical force that would require a particular physical aptitude, certain police functions, such as providing assistance to citizens or traffic control, did not require the use of significant physical force. Furthermore, even if all the functions carried out by the Greek police required a particular physical aptitude, such aptitude was not necessarily connected with being over a certain height. Equally, it was not necessarily the case that shorter people naturally lacked that aptitude. It was also worth noting that, until 2003, Greek law required different minimum heights for men and for women to enter the police: for women the minimum height was fixed at 1.65m, compared with 1.7m for men. It was also relevant that there remained different minimum height requirements for men and women to enter the Greek armed forces, port police and coast guard, where the minimum requirement for women was only 1.6m.
The ECJ concluded that the pursued aim could be achieved by measures that were less disadvantageous to women, such as a pre-selection of candidates based on specific tests allowing their physical ability to be assessed. It followed that, subject to the national court’s assessment of objective justification, the minimum height requirement breached the Equal Treatment Directive.