Opinion of the Advocate General — ECLI:EU:C:2014:2106
Date: 2014-07-17
Language of the case: Danish
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary — Judgment of the Court (Fourth Chamber), 18 December 2014 1. EU law — Principles — Equal treatment — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination — Scope — Discrimination based on obesity — Not included — Charter of Fundamental Rights of the European Union — Scope — Dismissal allegedly based on obesity — Not included (Arts 10 TFEU and 19 TFEU; Council Directive 2000/78, Art. 1) 2. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on the ground of disability — Definition of disability — Obesity of a person unable, or able only to a limited extent, to perform his work for a long period — Included (Council Directive 2000/78, Recital 16 and Arts 1 and 5) 1. EU law must be interpreted as not laying down a general principle of non-discrimination on grounds of obesity as such as regards employment and occupation. In this connection, it must be stated that no provision of the EC or FEU Treaties prohibits discrimination on grounds of sickness as such. In particular, neither Article 10 TFEU nor Article 19 TFEU makes reference to obesity. Nor does EU secondary legislation lay down a general principle of non-discrimination on grounds of obesity as regards employment and occupation. In particular, Directive 2000/78, establishing a general framework for equal treatment in employment and occupation, does not mention obesity as a ground for discrimination. The scope of Directive 2000/78 should not be extended by analogy beyond the discrimination based on the grounds listed exhaustively in Article 1 thereof. Consequently, obesity cannot as such be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination. Lastly, the provisions of the Charter of Fundamental Rights of the European Union are likewise inapplicable in a situation involving a dismissal allegedly based on obesity. (see paras 33, 35-40, operative part 1) 2. Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the obesity of a worker constitutes a disability within the meaning of that directive where it entails a limitation resulting in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. In the first place, it would run counter to the very aim of that directive, which is to implement equal treatment, to define its scope by reference to the origin of the disability. In addition, the definition of the concept of disability within the meaning of Article 1 of Directive 2000/78 comes before the determination and assessment of the appropriate accommodation measures referred to in Article 5 of the same directive. According to recital 16 in the preamble to that directive, such measures are intended to accommodate the needs of disabled persons and they are therefore the consequence, not the constituent element, of the concept of disability. Therefore, the mere fact that such accommodation measures may not have been taken in respect of a person does not mean that that person could not be a disabled person within the meaning of the directive referred to. Furthermore, that obesity does not in itself constitute a disability within the meaning of Directive 2000/78. However, in the event that, under given circumstances, the obesity of the worker concerned entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of the worker in professional life on an equal basis with other workers, and the limitation is a long-term one, obesity can be covered by the concept of disability within the meaning of Directive 2000/78. Such would be the case, in particular, if the obesity of the worker hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility or the onset, in that person, of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity. (see paras 55, 57-60, 64, operative part 2)