EU court says anti-vaccine views are opinions, not protected beliefs

(CN) — Refusing a Covid-19 vaccine may be a deeply personal decision, but Europe’s highest court ruled Thursday that not every strongly held conviction qualifies as a protected belief under EU law.

BG, a senior officer in Italy’s Army Engineer Corps, was suspended without pay in January 2022 after refusing a Covid-19 vaccination required for military personnel. He argued the rule unfairly singled out soldiers while exempting civilian staff working alongside them and left him unable to support his wife and two minor daughters.

He also insisted regular Covid testing should have been accepted as an alternative. Pointing to sectors where workers could enter the workplace with either proof of vaccination or a recent negative test, BG argued testing offered comparable protection and that his refusal reflected a protected belief.

The Court of Justice of the European Union disagreed.

Judges found BG was not expressing a protected religious, philosophical or spiritual belief but challenging Italy’s public health policy. His objections focused on vaccine effectiveness, possible side effects, testing as an alternative and the way the mandate was implemented.

As the court put it, “the applicant in the main proceedings does not seek to oppose the compulsory vaccination at issue in the main proceedings on the basis of his own beliefs, but to challenge, as such, the choices made by the Italian authorities in the field of public health.”

That distinction proved decisive. EU employment discrimination law protects religion and certain philosophical or spiritual beliefs, not policy disagreements. BG’s objections, the judges said, “constitute opinions — which in the present case relate to public health — the protection of which … is not governed by the provisions of that directive.”

The judges also rejected his comparison with civilian employees performing similar work. EU discrimination law covers specific protected characteristics such as religion, disability, age and sexual orientation, not membership of a particular professional category. Military personnel and civilian employees are governed by different legal regimes, making the comparison irrelevant under the directive.

Italy added military personnel to its Covid vaccination requirements in late 2021 as governments across Europe expanded pandemic measures for workers considered particularly exposed or important to public functions. Soldiers who refused vaccination could keep their employment relationship but were suspended from duty and lost their pay until they complied or the measure expired.

When the dispute arrived in Luxembourg, Italy’s Council of State noted the country’s Constitutional Court had already upheld similar vaccine requirements for healthcare workers and questioned whether regular testing could achieve the same public health objective as vaccination.

In the end, the Luxembourg judges concluded that neither BG’s opposition to the vaccine mandate nor the different treatment of military personnel amounted to the kind of discrimination covered by EU law.

Dagmar Schiek, professor of EU and labor law at University College Dublin, said the outcome was largely predictable.

EU judges have long distinguished between protected beliefs and disagreements with government policy, she noted. While some comprehensive philosophical worldviews may receive protection similar to religion, objections to a specific public health measure usually do not.

But the judgment may be remembered for more than its answer to a vaccine dispute.

Paolo Vargiu, associate professor of law at the University of Leicester, said the judgment is less about Covid-19 vaccination than about the legal status of conscience under EU law.

“The court has not given governments a blank cheque to impose medical requirements,” Vargiu said. Nor, he added, did the judges suggest individual conscience is irrelevant. Instead, they drew “a hard boundary around EU antidiscrimination law.”

In his view, the ruling makes clear that a sincere objection does not automatically become a protected belief. At the same time, he said, the court did not limit protected beliefs to religion and left open where the line falls between a protected belief and “merely an opinion, objection or challenge to policy.”

Vargiu said the significance extends beyond Covid disputes. If every conscientious refusal could be recast as discrimination, EU equality law would become “a general forum for every act of conscientious refusal.” He expects similar battles to surface over climate commitments, ethical veganism, medical autonomy and other workplace obligations. The broader message, he said, is that conscience matters, but “EU law does not protect conscience as such.”

Professor Lucy Vickers, a specialist in employment and equality law at Oxford Brookes University, said BG’s argument ultimately rested on scientific claims about vaccine effectiveness and alternative public health measures rather than on a protected religious, philosophical or spiritual belief.

Future disputes, she said, could involve objections rooted in broader ethical or religious convictions, including concerns about animal testing. “If such beliefs are protected,” she said, courts may then have to decide whether public health concerns are strong enough to justify limiting them.

Neither BG’s lawyer nor the Italian Ministry of Defence responded to requests for comment.

The ruling cannot be appealed. The case now heads back to Italy, but the Luxembourg-based court has already drawn the line BG was asking judges to move: the line between a personal conviction and a protected belief.

Courthouse News reporter Eunseo Hong is based in the Netherlands.