Opinion of the Advocate General — ECLI:EU:C:2025:903
Date: 2025-11-20
Language of the case: Italian

Summary C-522/24 – 1 
Case C-522/24 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
29 July 2024 
Referring court: 
Consiglio di Stato (Italy) 
Date of the decision to refer: 
23 July 2024 
Applicant: 
BG 
Defendant: 
Ministero della difesa 
Other party to the proceedings: 
Presidenza del Consiglio dei ministri 
  
Subject matter of the main proceedings 
Extraordinary petition to the President of the Italian Republic brought by a 
member of the military, an employee of the Ministero della difesa (Italian 
Ministry of Defence), seeking the annulment of his temporary suspension from 
work without pay, as a consequence of his failure to comply with the legal 
requirement to be vaccinated against COVID, and seeking compensation. 
Subject matter and legal basis of the request 
Pursuant to the second paragraph of Article 267 TFEU, the interpretation is sought 
of Council Directive 2000/78/EC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation, in addition to the 
prohibition of discrimination, the principle of equal treatment, the right to a 
dignified existence and the right to provide for minor children, as also enshrined 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-522/24 
 
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in the Charter of Fundamental Rights of the European Union, to determine 
whether it precludes national legislation that introduces compulsory vaccination 
against COVID-19 for military personnel working for the Ministry of Defence, 
failing which they are suspended from work without pay, when no such 
requirement is imposed on the civilian personnel of that ministry, even if they 
perform duties that pose the same risk of contagion as those carried out by 
military personnel. 
Questions referred for a preliminary ruling 
1. Given that the administration has not deemed it necessary to introduce a 
specific vaccination requirement for the military pursuant to Article 206a of 
decreto legislativo n. 66/10 (Legislative Decree No 66/10), assuming 
responsibility for the effects of the vaccine, does Directive 2000/78/EC preclude 
the transposition of decreto-legge n. 172/21 (Decree-Law No 172/21), in so far as 
it amends decreto-legge n. 44/21 (Decree-Law No 44/21) by adding [Article] 
4b(2)(b), which introduces compulsory vaccination for a member of the military 
contrary to his personal views, since it requires him to voluntarily submit to such 
medical treatment, still in the trial phase, at his own risk, as an additional 
prerequisite for being able to work in the same working environment as civilian 
workers who are not required to undergo vaccination, despite the fact that they 
perform duties that, from the point of view of contagiousness and the potential for 
person-to-person transmission, are similar to those performed by the military? 
2. Given that, according to Italian legislation on access to the workplace, even in 
crowded settings such as public transport, stadiums and restaurants, for workers 
not referred to in Decree-Law No 172/21, a vaccination certificate or negative 
COVID test carried out within the previous 48 hours are considered equivalent, 
does Article 2(2)(b) of Directive 2000/78/EC preclude a measure such as Decree-
Law No 172/21 in so far as it amends Decree-Law No 44/21 by adding [Article] 
4b(1)(b), which introduces compulsory vaccination for a member of the military 
contrary to his personal views, as a prerequisite for working in the same working 
environment as military personnel who, in line with their personal views, have 
chosen to be vaccinated even in the absence of a requirement to do so, despite the 
fact that the member of military staff who is not vaccinated is willing, and in any 
event is already required, to produce proof of a negative COVID test at intervals 
of less than 48 hours? 
3. Does the measure referred to in Decree-Law No 172/21, supplementing Decree-
Law No 44/21, in which Article 4b(3) renders employees who have been 
suspended for failing to comply with the vaccination requirement unable to 
provide for their family and offer the protection and care necessary for the well-
being of minor daughters, infringe Articles 1 and 24 of the Charter of 
Fundamental Rights of the European Union pursuant to Article 24 of the Charter? 
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Provisions of European Union law relied on 
Charter of Fundamental Rights of the European Union: Articles 1, 21, 24 and 52 
Treaty on the Functioning of the European Union: Article 10 
European Convention for the Protection of Human Rights and Fundamental 
Freedoms: Article 14 
Council Directive 2000/78/EC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation: Articles 2, 3, 4, 6 
and 17 
Judgment of the Court of 20 December 2017, Global Starnet Ltd, C-322/16, 
paragraph 1 of the operative part. 
Provisions of national law relied on 
Decreto-legge 1 aprile 2021, n. 44 – Misure urgenti per il contenimento 
dell’epidemia da COVID-19, in materia di vaccinazioni anti SARS-CoV-2, di 
giustizia e di concorsi pubblici (Decree-Law No 44 of 1 April 2021 on urgent 
measures to combat the COVID‑19 pandemic, vaccination against SARS-CoV-2, 
justice and public aid), converted by L. 28 maggio 2021, n. 76 (Law No 76 of 
28 May 2021), as amended by decreto legge 26 novembre 2021, n. 172, Misure 
urgenti per il contenimento dell’epidemia da COVID-19 e per lo svolgimento in 
sicurezza delle attività economiche e sociali (Decree-Law No 172 of 
26 November 2021 on urgent measures for combating the COVID-19 pandemic 
and for the safety of economic and social activities), converted with amendments 
by L. 21 gennaio 2022, n. 3 (Law No 3 of 21 January 2022), which introduced, 
inter alia, Article 4b(b). That article extended the vaccination requirement – which 
had already been introduced for healthcare professionals – to military personnel 
working for the Ministry of Defence. In the event of non-compliance with the 
vaccination requirement, workers would be suspended without pay, although no 
disciplinary action would be taken and they would not lose their job. 
Article 4b was repealed by Article 8 of decreto-legge 24 marzo 2022, n. 24 
(Decree-Law No 24 of 24 March 2022), which, inter alia, abolished the 
vaccination requirement imposed on military personnel as of 25 March 2022, the 
date on which employees suspended from work pursuant to that provision were 
thus able to return to work. 
Decreto legislativo n. 66 del 2010 – Codice dell’ordinamento militare (Legislative 
Decree No 66 of 2010 on the Military Law Code): in particular Article 206a, 
pursuant to which the administration, assuming responsibility for same, may 
declare it essential to administer specific vaccines to military personnel so that 
they may be deployed in particular operating conditions, in order to protect the 
health of individuals and the community. 
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Judgments of the Corte costituzionale (Constitutional Court, Italy) Nos 14/2023, 
15/2023 and 185/2023, confirming the compatibility with the Italian Constitution 
of the COVID vaccination requirement introduced by law for healthcare 
personnel. 
Succinct presentation of the facts and procedure in the main proceedings 
1 Article 4b(b) of Decree-Law No 44/2001, introduced by Decree-Law 
No 172/2021, extended the COVID vaccination requirement, previously 
introduced for healthcare personnel, to military personnel from 15 December 
2021. 
2 The applicant, a member of the military working for the Ministry of Defence, 
opted not to have the vaccination. Lengthy proceedings ensued during which the 
administration upheld the right to be heard of the person concerned, who declared 
that he was willing to take COVID tests rather than be vaccinated. 
3 Following the proceedings, on 10 January 2022 the Ministry of Defence 
suspended the applicant without pay. No disciplinary action was taken and the 
applicant kept his job. However, the applicant challenged that decision by an 
extraordinary appeal to the President of the Italian Republic. 
4 The Consiglio di Stato (Council of State, Italy) is acting in an advisory capacity, 
being called upon to express a binding opinion to the Ministry of Defence, which 
has jurisdiction to investigate the appeal and to submit a final decision to the 
President of the Italian Republic. 
The essential arguments of the parties in the main proceedings 
5 The applicant submitted six grounds of appeal, proposing to refer the same 
number of questions to the Court of Justice for a preliminary ruling on the 
interpretation of EU law. 
6 By the first ground of appeal, the applicant does not challenge whether it is 
possible for a State to impose a vaccination requirement, but rather the way in 
which this was implemented, which he argues is discriminatory and contrary to 
Article 2(2)(a) of Directive 2000/78/EC and Article 2(1)(a) of Legislative Decree 
No 216/2003, the national law that transposed it. 
In particular, the applicant claims to have suffered ‘direct discrimination’ 
compared with civilian employees working for the same ministry with similar 
duties to his own, since they were not subject to the vaccination requirement, 
which only applied to the military. 
In addition, the applicant asserts that the requirement to be vaccinated against 
COVID has been imposed on him at his own risk, contrary to the provisions of 
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Article 206a of the Military Law Code, according to which the administration, 
assuming responsibility for same, may declare that specific vaccines must be 
administered to military personnel so that they may be deployed in particular 
operating conditions. 
7 By the second ground of appeal, the applicant claims to have suffered ‘indirect 
discrimination’ compared with vaccinated military personnel, solely on the basis 
of his personal objection to the vaccine and in the absence of valid scientific 
arguments. Specifically, the applicant had declared himself willing to be tested 
every 48 hours, arguing, by referring to several scientific reports, that any non-
vaccinated person who goes to work after testing negative less than 48 hours 
previously poses an infection risk similar to, if not lower than, that of vaccinated 
colleagues. Yet he had been denied that possibility, contrary to Article 2(2)(b) of 
Directive 2000/78/EC. 
8 By the third ground of appeal, the applicant argues that the contested measure 
entails the suspension of the right to work, without pay or other remuneration, 
thereby preventing him from supporting himself or his family, including two 
minor daughters, for the duration of that suspension. According to the applicant, 
this is contrary to Articles 1 and 24 of the Charter of Fundamental Rights of the 
European Union (‘the Charter’), which state that human dignity is inviolable and 
that children have the right to such care as is necessary for their well-being. 
9 By the fourth ground of appeal, the applicant maintains that he has been unable 
to exercise his right to paid annual leave, in violation of Article 31(2) of the 
Charter. In the course of the proceedings, the applicant ceased to rely on that 
ground, since Article 8 of Decree-Law No 24 of 24 March 2022 amended the 
previous legislation, abolishing the vaccination requirement for military personnel 
as of 25 March 2022, the date on which employees suspended from work under 
that requirement, including the applicant (who had been suspended since 
10 January 2022), were able to return to work. 
10 By the fifth ground of appeal, the applicant claims to have been denied effective 
judicial protection, in violation of Article 19 of the Treaty on European Union. 
11 By the sixth ground of appeal, the applicant seeks compensation for the 
discrimination he suffered by means of an exemplary and dissuasive sanction 
within the meaning of Article 17 of Directive 2000/78/EC. 
12 For its part, the defendant seeks the dismissal of the appeal and maintains that the 
contested measure is lawful since it is a mandatory act resulting from a specific 
legal requirement laid down in Article 4b of Decree-Law No 44/2001, as amended 
by Decree-Law No 172/2021. 
13 In addition, during the proceedings, the administration clarified certain aspects of 
the applicant’s role: he predominantly works in an office that he has to himself, 
but has frequent meetings with other military and civilian personnel of the same 
administration, as well as with representatives of external companies. 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
14 The Council of State rejected the fifth and sixth grounds of appeal and the 
corresponding questions for a preliminary ruling proposed by the applicant. It also 
noted the applicant’s waiver of the fourth ground of appeal and the related 
question referred for a preliminary ruling, for the reasons set out in paragraph 8 
above. 
15 However, the Council of State decided to refer to the Court of Justice the 
questions referred for a preliminary ruling by the applicant relating to the first, 
second and third grounds of appeal. 
16 First, the Council of State considers that the prohibition of discrimination 
established in Directive 2000/78/EC and the principles of the Charter of 
Fundamental Rights may, in principle, be applicable to the applicant, a member of 
the military working for the Ministry of Defence, in particular recognition of the 
right to work, sufficient remuneration to ensure the free and dignified life of the 
worker and his family and the ability to support minor children. 
17 Those provisions are relevant to resolving the dispute in the main proceedings, 
since any incompatibility of the national law in question with the rules and 
principles of EU law would result in the national law being disapplied and the 
appeal being granted. By contrast, any compatibility of the national law in 
question with EU law would lead to the appeal being dismissed. 
18 In view of the foregoing, the Council of State considers the questions raised by the 
applicant by the first, second and third grounds regarding the violation of EU law 
by the contested measure to be unfounded. 
19 In particular, the three issues of lawfulness in question have already been 
examined by the Italian Constitutional Court in judgment Nos 14/2023, 15/2023 
and 185/2023, which affirmed the compatibility with the Italian Constitution of 
the requirement for healthcare personnel to be vaccinated against COVID, 
introduced by Decree-Law No 44/2001. According to the Council of State, the 
principles expressed in those judgments, similar to those expressed by the 
provisions of EU law relied on by the applicant, also apply to the vaccination 
requirement introduced for military personnel at issue in the main proceedings. 
20 As regards the first ground of appeal, concerning the violation of 
Article 2(2)(a) of Directive 2000/78/EC for direct discrimination of military 
personnel compared with the civilian personnel of the Ministry of Defence, who 
are not required to be vaccinated, the Council of State notes that the directive lays 
down rules that would be valid under normal conditions, but that, as stated in 
paragraph 5 of that article, remain ‘without prejudice to measures laid down by 
national law which, in a democratic society, are necessary for public security … 
and … for the protection of health …’. 
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21 The referring court emphasises that by contrast, the vaccination requirement 
imposed on the applicant is exceptional owing to the COVID-19 pandemic. 
Accordingly, it may be stated – as the Constitutional Court found with regard to 
the requirement for healthcare personnel to be vaccinated against COVID – that 
such a requirement stems from the ‘severity and … unpredictability of the course 
of the pandemic’ (judgment No 14/2023) and from the need to adapt to the 
‘guidance formulated by the competent international bodies [such as] the United 
Nations … European Commission … Council of Europe’ (judgment No 15/2023). 
22 The referring court also recalls, citing judgment No 14/2023 of the Constitutional 
Court, that various scientific authorities, such as the Istituto superiore di sanità 
(National Institute of Health), had certified that the vaccines were safe for 
preventing severe acute respiratory syndrome caused by COVID and for reducing 
the circulation of the virus, and that therefore the use of that vaccine was not 
unreasonable. 
23 The referring court adds, with regard to the choice of professional categories 
subject to the vaccination requirement and to the verification of its non-
discriminatory nature, that on that point the Constitutional Court has already 
expressed itself in judgment No 185/2023, by which it took note of the fact that 
the legislature, following the discovery of a vaccine, considered – in the light of 
the medical and scientific knowledge available at the time – capable of reducing 
the circulation of the virus, clearly opted for mass vaccination and made a general 
choice based on predetermined categories for which vaccination was compulsory, 
identifying those categories over the course of the pandemic. 
24 The referring court submits that the legislative decision to introduce the 
vaccination requirement for military personnel, who, unlike civilian personnel, are 
called upon, in case of need, to ensure public safety as members of the armed 
forces, involving contact with the community, seemed a reasonable and 
appropriate choice at the time in order to safeguard the health of both the military 
and the general public. In other words, according to the Council of State, the 
position of military personnel and civilian personnel is not comparable, with the 
consequent absence of the discrimination alleged by the applicant. 
25 As regards the second ground of appeal, relating to the indirect discrimination 
of the applicant, who had not been permitted to take a test every 24 hours as an 
alternative to the vaccine, the Council of State adds that, in judgment Nos 15/2023 
and 14/2023, the Constitutional Court recognised that the principle of 
proportionality had not been infringed in view of the purpose of the emergency 
legislation, and that the vaccination requirement was not disproportionate since no 
other suitable measures existed at the time, considering the legislature’s stated 
intention of combating the pandemic. In particular, the alternative solution of 
periodic testing was used in more general settings for access to public places by 
individuals not belonging to the categories subject to compulsory vaccination. 
However, the cost of those tests, which had to be repeated at very short intervals 
(every two to three days), would have been unsustainable and would have 
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imposed an intolerable burden on the healthcare system, which was already 
having to deal with the pandemic. On the other hand, since the test results are not 
available immediately after testing, they are already obsolete, since the person 
tested may have become infected in the meantime. 
26 As regards the third ground of appeal, relating to the infringement of Articles 1 
and 24 of the Charter, which establish the inviolability of human dignity and the 
right of minors to receive the necessary care, as a result of the suspension from 
work without pay or other remuneration, the Council of State points out, first of 
all, that the applicant was actually suspended from 10 January 2022 to 24 March 
2022, returning to work on 25 March 2022 when the vaccination requirement for 
the military ceased to apply. 
27 In addition, the Council of State recalls the rulings of the Constitutional Court 
which, by judgment No 15/2023, clarified that the suspension of non-vaccinated 
workers is consistent with the employer’s duty of care and that the right to work 
enshrined in the Constitution does not necessarily mean having the right to work if 
that poses a risk to public health and the worker chooses not to comply with the 
provisions on workplace safety, namely the requirement to be vaccinated against 
COVID, in the present case. 
28 According to the Council of State, given that the introduction of the vaccination 
requirement for the military is not discriminatory for the reasons set out in relation 
to the first and second grounds, but represents a reasonable and proportionate 
measure in the interests of safeguarding public health, although likely to be 
contrary to the personal views of some individuals, the deliberate breach of that 
requirement justifies the suspension from work without pay. 
29 In that regard, the Council of State notes that the consequence of non-compliance 
with the vaccination requirement imposed by the legislature is the suspension of 
the employment relationship due to temporary incapacity, not attributable to the 
employer, without disciplinary action or dismissal and with reinstatement in post 
once non-compliance with the requirement ceases to be an issue and, in any event, 
once the epidemiological crisis has passed. A consequence of that type seems 
proportionate and well balanced, in terms of sacrificing the rights of the military 
to achieve the purpose of the law, as the Constitutional Court has previously held 
in judgment Nos 14/2023 and 15/2023 with regard to healthcare personnel. 
30 In conclusion, while finding that the questions referred for a preliminary ruling by 
the applicant in the first to third grounds of appeal are unfounded for the reasons 
summarised above, the Council of State considers that it must submit them to the 
Court of Justice, rephrasing them as set out above (under ‘Questions referred for a 
preliminary ruling’), since the Council of State, acting in an advisory capacity and 
issuing a binding opinion in the main proceedings, is ‘a court or tribunal of a 
Member State against whose decisions there is no judicial remedy under national 
law’, under the third paragraph of Article 267 TFEU. As such, it is obliged, in 
principle, to proceed with the reference for a preliminary ruling even if, in the 
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course of the same national proceedings, the Constitutional Court of the Member 
State concerned has assessed the constitutionality of national rules in the light of 
regulatory parameters with content similar to rules under EU law (judgment of the 
Court of Justice of 20 December 2017, C-322/16, Global Starnet Ltd).