Opinion of the Advocate General — ECLI:EU:C:2023:587
Date: 2023-07-13
Language of the case: German
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Germany

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: 
3 August 2022 
Referring court: 
Bundesarbeitsgericht (Germany) 
Date of the decision to refer: 
24 February 2022 
Applicant and appellant on a point of law: 
J.M.P. 
Defendant and respondent in the appeal on a point of law: 
AP Assistenzprofis GmbH 
  
Subject matter of the main proceedings 
Claim for payment of compensation for discrimination on grounds of age 
Subject matter and legal basis of the request 
Interpretation of Article 4(1), Article 6(1), Article 7 and Article 2(5) of Directive 
2000/78/EC, read in the light of Article 19 of the United Nations Convention on 
the Rights of Persons with Disabilities and in the light of the requirements of the 
Charter of Fundamental Rights of the European Union; Article 267 TFEU 
Question referred for a preliminary ruling 
Can Article 4(1), Article 6(1), Article 7 and/or Article 2(5) of Directive 
2000/78/EC, read in the light of the requirements of the Charter of Fundamental 
Rights of the European Union (‘the Charter’) and of Article 19 of the United 
Nations Convention on the Rights of Persons with Disabilities (‘the UN CRPD’), 
EN 
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be interpreted as meaning that, in a situation such as that in the main proceedings, 
direct discrimination on grounds of age can be justified? 
Provisions of international law relied on 
United Nations Convention on the Rights of Persons with Disabilities (UN 
CRPD): Points (c), (h), (j) and (n) of the preamble and Articles 1, 3, 5, 12 and 19 
General comment No. 5 (2017) of the UN Committee on the Rights of Persons 
with Disabilities on living independently and being included in the community: 
Point 16(a) of Section II and point 80 of Section IV 
Provisions of EU law relied on 
Charter of Fundamental Rights of the European Union: Articles 1, 7, 21 and 26 
Council Directive 2000/78/EC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation (OJ 2000 L 303, 
p. 16): Articles 1, 2, 4, 5, 6 and 7 
Provisions of national law relied on 
Grundgesetz für die Bundesrepublik Deutschland (Basic Law of the Federal 
Republic of Germany): Articles 1 and 2 
Allgemeines Gleichbehandlungsgesetz (General Law on equal treatment; ‘the 
AGG’): Paragraphs 1, 3, 5, 7, 8, 10 and 15 
Sozialgesetzbuch Erstes Buch (SGB I) – Allgemeiner Teil (Book I of the Social 
Code (SGB I) – General Part): Paragraph 33 
Sozialgesetzbuch Neuntes Buch (SGB IX) – Rehabilitation und Teilhabe von 
Menschen mit Behinderungen (Book IX of the Social Code (SGB IX) – 
Rehabilitation and participation of persons with disabilities): Paragraphs 8 and 78 
The AGG prohibits discrimination against employees, including on grounds of 
age. By way of exception, a difference of treatment is permissible where, by 
reason of the nature of the activities concerned or of the context in which they are 
carried out, a certain age constitutes a genuine and determining occupational 
requirement (Paragraph 8) or where the difference of treatment is objectively and 
reasonably justified by a legitimate aim (Paragraph 10). In the event of a breach of 
the prohibition of discrimination, the employer is required to provide 
compensation for the resulting damage or, in the case of non-material damage, to 
pay appropriate monetary compensation (Paragraph 15). 
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Under Paragraph 8 of SGB IX, read in conjunction with Paragraph 33 of SGB I, 
when providing services for persons with disabilities, the legitimate wishes of 
those entitled to services must be complied with in so far as they are reasonable. 
Account must also be taken of the personal circumstances, age, sex, family and 
religious and philosophical needs of persons entitled to services. 
Paragraph 78(1) (‘Assistance services’) of SGB IX reads: ‘Assistance services are 
provided for the self-determined and independent management of everyday life, 
including structuring a daily routine. They include, in particular, services for 
general everyday tasks such as managing a household, forming social 
relationships, organising day-to-day life, participating in community and cultural 
life, taking part in leisure activities including sports, and ensuring the 
effectiveness of medical and medically prescribed services. They include 
communication with the surrounding world in these areas.’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 The defendant offers people with disabilities, inter alia, assistance services in 
various areas of life (‘personal assistance’). Those services are provided in 
accordance with Paragraph 78(1) of SGB IX. 
2 In July 2018, the defendant published a job offer stating that A., a 28-year-old 
student, was looking for female assistants in all areas of everyday life, who should 
‘preferably be between 18 and 30 years old’. 
3 The applicant, who was born in March 1968, applied for this job and received a 
rejection from the defendant. After unsuccessfully asserting her claims out of 
court, the applicant sought compensation from the defendant under Paragraph 15 
of the AGG by way of her action. 
The essential arguments of the parties in the main proceedings 
4 According to the applicant, the defendant discriminated against her in the 
application procedure on grounds of her age, contrary to the requirements of the 
AGG, and must therefore pay her compensation under Paragraph 15 of the AGG. 
The fact that the defendant’s job advertisement was expressly addressed to 
assistants aged ‘between 18 and 30’ justified the presumption that she, the 
applicant, was disregarded and thus discriminated against in the application 
procedure on grounds of her age (which exceeded the age range in the job 
advertisement). Moreover, the defendant has not rebutted that presumption. The 
difference in treatment on grounds of age was in no way justified in the assistance 
service. It was not permissible under the provision on special occupational 
requirements (Paragraph 8 of the AGG) or under the provision on justified 
differences of treatment on grounds of age (Paragraph 10 of the AGG). A specific 
age was not relevant in terms of the relationship of trust in the assistance service. 
On the contrary, in a case such as the present one, personal assistance provided by 
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a middle-aged person, with that person’s greater life experience, could have 
considerable advantages for the disabled person. If the selection decision had been 
free from discrimination, she, the applicant, should have been given the job. She 
had experience and was extremely well suited for the advertised position. 
5 According to the defendant, any difference in treatment on grounds of age was 
justified in the light of Paragraphs 8 and 10 of the AGG. Assistance involves 
highly personal, all-encompassing support with daily living, with the person 
granted personal assistance generally being constantly and completely dependent 
on the person providing the assistance and the two of them being together at all 
times. In the present case, a particular age was a highly personal requirement for 
meeting the highly personal needs of the person granted personal assistance, A., 
so that she could adequately participate in social life as a university student. 
6 When persons with disabilities access personal assistance services, the legitimate 
wishes and subjective needs of the person granted personal assistance must be 
taken into account – as provided for in Paragraph 8 of SGB IX – since the 
personal assistance has a constant impact on the private and intimate areas of that 
person’s life. Against this background, the legitimate wish of the person granted 
personal assistance for the personal assistant to be of a certain age should be 
regarded as a genuine and determining occupational requirement within the 
meaning of Paragraph 8 of the AGG. This is the only way to achieve the purpose 
of assistance services stated in Paragraph 78 of SGB IX, which is a consequence 
of the personality rights protected by the Basic Law. That requirement was also 
reasonable. A difference in treatment on grounds of age is also permissible in this 
case under Paragraph 10 of the AGG, since it is objectively and reasonably 
justified by a legitimate aim and the means of achieving the aim of personal 
assistance are appropriate and necessary. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
7 The applicant has been directly disadvantaged on grounds of her age by the 
defendant’s rejection. The defendant’s job advertisement, seeking a person 
between the ages of approximately 18 and 30, gives rise to the presumption that 
the applicant’s age was the main or a contributing factor to the rejection. The 
defendant has not rebutted that presumption. 
8 The question arises as to how the applicant’s rights are to be balanced with those 
of a person with a disability. Under the provisions of Directive 2000/78/EC and 
Article 21 of the Charter, the applicant, who is seeking employment, may claim 
effective protection against discrimination on grounds of her age. Persons with 
disabilities who – like the 28-year-old student A. – are seeking personal assistance 
may, under Article 21 of the Charter, claim effective protection against 
discrimination on grounds of their disability. In addition, Article 26 of the Charter 
applies in her favour. 
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9 In Germany, when deciding on services for persons with disabilities and 
performing those services, the legitimate wishes of those entitled to services must 
be complied with in so far as they are reasonable. Account must be taken, inter 
alia, of the personal circumstances, age and sex of the persons entitled to services. 
In that context, the person entitled to services may decide on the provider of the 
services and, in consultation with the latter, decide by whom, how, when, where 
and in what way the assistance services are delivered. 
10 The right of persons entitled to services to express their wishes and choices is 
intended to take into account the right of persons with disabilities to organise their 
life circumstances as far as possible in a self-determined and autonomous manner 
and to boost the personal responsibility of the persons concerned as well as their 
motivation to participate in the community. 
11 Since personal assistance concerns all areas of life and inevitably reaches far into 
the private and intimate areas of the life of the person in need of or receiving 
assistance – which may, depending on the circumstances of the individual case, 
involve assistance with personal care and hygiene, including assistance when 
going to the toilet and with dressing and undressing, meaning that the assistants 
regularly have insight into all areas of the relevant person’s life, in some cases 
including those which are otherwise inaccessible to close friends and relatives – 
the referring court takes the view that, in order to guarantee human dignity, it is 
necessary to respect and focus on the wishes of the relevant person with a 
disability regarding the organisation of his or her own life in terms of personal 
assistance services. Persons with disabilities therefore need a great deal of 
freedom in the choice of the people assisting them. Like persons without a 
disability, they must be able to decide with whom they wish to share their lives. 
Therefore, in the view of the referring court, the wishes of the relevant person 
with a disability, regarding personal assistance services, for the assistant to be of a 
certain age and gender must be respected, in so far as they are appropriate in the 
particular case. 
12 The question therefore arises as to whether it is compatible with the requirements 
of Directive 2000/78/EC for persons with disabilities to specify an age-related 
preference as a selection criterion in the procedure for hiring a personal assistant, 
since Article 2(2)(a) of Directive 2000/78/EC prohibits direct discrimination on 
grounds of age. In that regard, for the purposes of interpreting that directive, it is 
necessary to take account of the UN CRPD (judgment of the Court of Justice of 
11 September 2019, Nobel Plastiques Ibérica, C-397/18, EU:C:2019:703, 
paragraphs 39 and 40), in particular Article 19 thereof, according to which States 
Parties must ensure that persons with disabilities have the opportunity to choose 
their place of residence and where and with whom they live on an equal basis with 
others. 
13 It is conceivable that the difference in treatment is permissible under Article 4(1) 
of Directive 2000/78/EC. According to that provision, Member States may 
provide that a difference of treatment which is based on a characteristic related to 
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any of the grounds referred to in Article 1 of the directive – including age – is not 
to constitute discrimination where, by reason of the nature of the particular 
occupational activities concerned or of the context in which they are carried out, 
such a characteristic constitutes a genuine and determining occupational 
requirement, provided that the objective is legitimate and the requirement is 
proportionate. 
14 In this respect, it is not yet clear whether the wish expressed by a person with a 
disability, in the context of his or her right to self-determination, that the person 
providing personal assistance should be of a specific age is a characteristic within 
the meaning of that provision (on this concept, the referring court refers, inter alia, 
to the judgment of the Court of Justice of 15 July 2021, Tartu Vangla, C-795/19, 
EU:C:2021:606, paragraph 32) or whether an age preference can be a genuine and 
determining occupational requirement. That could be disputed in the light of the 
case-law of the Court of Justice (judgments of 14 March 2017, Bougnaoui and 
ADDH, C-188/15, EU:C:2017:204, paragraphs 39 and 40, and of 17 April 2018, 
Egenberger, C-414/16, EU:C:2018:257, paragraph 63), according to which the 
requirement must be objectively dictated by the nature of the occupational 
activities concerned or of the context in which they are carried out and the 
lawfulness of a difference of treatment depends on the objectively verifiable 
existence of a direct link between the occupational requirement imposed by the 
employer and the activity concerned. The specific wish in question cannot be 
generalised and, as such, is not objectively dictated by the nature of the 
occupational activities of personal assistance or of the context in which they are 
carried out. The wish in question is based on subjective priorities for the person in 
question to independently control their own way of life. However, in the view of 
the referring court, it is essential to respect this right of self-determination and to 
comply with it when hiring a person to provide personal assistance, in so far as the 
wishes are justified and appropriate. 
15 The referring court is also unsure whether Article 6(1) of Directive 2000/78/EC 
may apply in a situation such as that at issue in the main proceedings. According 
to that provision, Member States may provide that differences of treatment on 
grounds of age are not to constitute discrimination, if, within the context of 
national law, they are objectively and reasonably justified by a legitimate aim and 
if the means of achieving that aim are appropriate and necessary. A ‘legitimate 
aim’ could be that of taking into account the right of persons with disabilities to 
organise their life circumstances as far as possible in a self-determined and 
autonomous manner and to strengthen the personal responsibility of the persons 
concerned as well as their motivation to participate in the community. In addition, 
the question arises as to what requirements, if any, must be observed for the 
purposes of assessing reasonableness and necessity. 
16 The referring court notes that, according to the case-law of the Court of Justice, 
Member States enjoy a broad discretion, not only in choosing to pursue a 
particular aim, but also in defining the measures capable of achieving it. However, 
that discretion cannot have the effect of frustrating the implementation of the 
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principle of non-discrimination on grounds of age (see, inter alia, judgments of 
3 June 2021, Ministero della Giustizia [Notaries], C-914/19, EU:C:2021:430, 
paragraph 30, and of 12 October 2010, Ingeniørforeningen i Danmark, C-499/08, 
EU:C:2010:600, paragraph 33). 
17 The referring court then points out that, under Article 7 of Directive 2000/78/EC, 
the principle of equal treatment does not prevent Member States from maintaining 
or adopting, with a view to ensuring full equality in practice, specific measures to 
prevent or compensate for disadvantages linked to any of the grounds referred to 
in Article 1. According to the national provision transposing Article 7 of Directive 
2000/78/EC, a difference of treatment is permissible not only with regard to 
equality in professional life, but also more generally where appropriate and 
proportionate measures are taken to prevent or compensate for existing 
disadvantages linked to a particular ground. In this respect, it is questionable 
whether Article 7 of Directive 2000/78/EC, in so far as it is to be understood in 
the light of Article 19 of the UN CRPD and the underlying human rights approach 
of the UN CRPD and in the light of the safeguards provided for in Articles 1, 7, 
21 and 26 of the Charter, can be relevant for a justification of the discrimination 
on grounds of age in a case such as that in the main proceedings, even though the 
purpose of personal assistance is not equality in professional life. In that regard, 
the referring court notes that Article 5(4) of the UN CRPD expressly authorises 
specific measures which are necessary to accelerate or achieve de facto equality of 
persons with disabilities and refers to the judgment of the Court of Justice of 
9 March 2017, Milkova (C-406/15, EU:C:2017:198, paragraph 48 et seq.). 
18 Lastly, Article 2(5) of Directive 2000/78/EC provides that that directive is to be 
without prejudice to measures laid down by national law which, in a democratic 
society, are necessary, inter alia, for the protection of the rights and freedoms of 
others. According to the case-law of the Court of Justice, the grounds mentioned 
in Article 2(5) of Directive 2000/78/EC – such as the protection of the rights and 
freedoms of others – may be seen as possible ‘justifications’ (see judgment of 
22 January 2019, Cresco Investigation, C-193/17, EU:C:2019:43, paragraph 52). 
It is in that context that the referring court asks whether, in a case such as that at 
issue in the main proceedings, Article 2(5) of Directive 2000/78/EC can justify the 
unfavourable treatment of the applicant on grounds of age. 
19 In that regard also, it could be that personal assistance services must respect the 
right of persons with disabilities to independence and autonomy. Since a person 
without a disability who is the same age as 28-year-old student A. is undoubtedly 
free autonomously to decide the age of the people with whom he or she wishes to 
share his or her daily life, the referring court deems that there is much evidence to 
support the notion that persons with disabilities must also be guaranteed such a 
free right of determination with regard to personal assistance. Persons with 
disabilities are guaranteed the full enjoyment of human rights and fundamental 
freedoms without discrimination under the preamble of the UN CRPD. 
Furthermore, according to Article 1 of the UN CRPD, the full and equal 
enjoyment of all human rights and fundamental freedoms by all persons with 
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disabilities is to be promoted, protected and ensured. Respect for their inherent 
dignity is also to be promoted. It is in this context that the referring court asks 
whether, in that regard, hiring a person to provide personal assistance includes the 
right to express wishes and make choices in terms of age. Here, too, the 
safeguards provided for in Articles 1, 7, 21 and 26 of the Charter could be of 
particular importance.