Opinion of the Advocate General — ECLI:EU:C:2021:916
Date: 2021-11-11
Language of the case: French
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-485/20 – 1 
Case C-485/20 
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 September 2020 
Referring court:  
Conseil d’État (Belgium) 
Date of the decision to refer:  
30 June 2020 
Applicant:  
XXXX 
Opposing party:  
HR Rail, SA de droit public 
  
1. Facts and subject matter of the dispute: 
1 HR Rail is the employer of the railway staff in Belgium. 
2 XXXX was recruited as a specialist maintenance technician (tracks) and began his 
traineeship on 21 November 2016. 
3 In order to treat a heart problem, XXXX was fitted with a pacemaker, a device 
which is sensitive to the electromagnetic fields present, inter alia, on railway 
tracks. 
4 On 12 June 2018, the applicant was recognised as disabled by the SPF Sécurité 
sociale (FPS Social Security). 
5 On 28 June 2018, he was examined at the company’s Regional Medical Centre 
and declared permanently unfit to perform the duties for which he was recruited, 
with the specification that, pending the decision to dismiss him, he could occupy 
an appropriate post meeting the following requirements: ‘moderate activity, no 
exposure to magnetic fields, not at altitude or exposed to vibrations’. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-485/20 
 
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6 Following that decision, the applicant was assigned to a warehouseman’s position. 
7 On 3 September 2018, the decision that he was medically unfit to perform his 
duties was confirmed by the company’s Medical Appeal Board, before which 
XXXX had brought an appeal. 
8 By letter of 26 September 2018, the opposing party informed the applicant that he 
would be dismissed with effect from 30 September 2018. 
9 On 26 October 2018, the opposing party confirmed to the applicant that the 
statutory regime provided ‘that the traineeship of a member of staff who is 
declared totally and permanently unfit where he is no longer in a condition to 
perform the duties associated with his grade shall be terminated’. 
10 By an application lodged on 26 November 2018, XXXX sought the annulment of 
the decision to dismiss him with effect from 30 September 2018. 
2. Provisions at issue: 
Council Directive 2000/78/EC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation 
11 Article 5 provides: 
‘Reasonable accommodation for disabled persons 
In order to guarantee compliance with the principle of equal treatment in relation 
to persons with disabilities, reasonable accommodation shall be provided. This 
means that employers shall take appropriate measures, where needed in a 
particular case, to enable a person with a disability to have access to, participate 
in, or advance in employment, or to undergo training, unless such measures would 
impose a disproportionate burden on the employer. This burden shall not be 
disproportionate when it is sufficiently remedied by measures existing within the 
framework of the disability policy of the Member State concerned.’  
3. Positions of the parties: 
XXXX 
12 XXXX criticises HR Rail for having dismissed him without offering to redeploy 
him to a position appropriate to his state of health. 
13 He complains, in particular, about the fact that the redeployment of members of 
staff who are unfit to perform their normal duties is reserved for members of staff 
who have been appointed on a permanent basis. That difference of treatment with 
regard to members of staff who are in training infringes, inter alia, Article 5 of 
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Directive 2000/78/EC inasmuch as it establishes a general refusal to provide 
reasonable accommodation for trainees with disabilities, without its having been 
shown that such accommodation would impose a disproportionate burden on the 
employer. 
14 XXXX asserts that, according to the legal literature, if a worker is unfit to do his 
job for health reasons, the employer is obliged to check whether another job is 
available in another department, and that obligation may extend to forcing a 
worker who is in better health to give up his post. He argues that he was 
temporarily reassigned to a warehouseman’s job, for which he has considerable 
professional experience, so that there was indeed a possibility of reasonable 
accommodation. He rejects the argument that, unlike a member of staff who has 
been appointed on a permanent basis, a member of staff who is in training has yet 
to prove himself, arguing that neither has a permanent member of staff proved his 
suitability to hold the post to which he will be reassigned or redeployed. He 
maintains that members of staff who are in training and members of staff who 
have been appointed on a permanent basis are in a comparable situation since they 
are in the same situation from the point of view of their medical and professional 
fitness to perform the job: they work in the same environment and are assigned to 
the same tasks. 
15 XXXX maintains that he is entitled to rely upon Directive 2000/78/EC, which has 
direct effect and infringement of which may, therefore, be invoked directly. He 
continues to maintain that the redeployment of a worker with a disability, who has 
become permanently incapable of performing the job for which he was recruited, 
to a post for which he is professionally and physically fit, constitutes reasonable 
accommodation within the meaning of the directive, and that the majority of the 
legal literature and case-law fully support that. He asserts that he amply 
demonstrated that he was fit for the warehouseman’s position to which he was 
assigned pending the final decision of the company’s Medical Appeal Board and 
that reasonable accommodation would have consisted of assigning him to that 
position. According to him, trainees and members of staff who have been 
appointed permanently are in a comparable situation from the point of view of 
their being unfit for their position and of their state of health, because a member of 
staff who has been appointed permanently has been no more able to prove his 
suitability for a position to which he will potentially be redeployed than a trainee 
in the same situation. He claims that the opposing party has not demonstrated that 
it was impossible for it, or even that it tried, to redeploy him to a position allowing 
for the supervision given to trainees, and that neither has it demonstrated that there 
was a concrete reason why it was unable to apply the rules of the traineeship to the 
job to which he was temporarily assigned pending the decision of the company’s 
Medical Appeal Board.  
HR Rail  
16 HR Rail takes the view that the mere fact that the applicant was dismissed on the 
grounds of his state of health or disability does not imply that discrimination has 
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taken place. After explaining what, very specifically, the job of specialist 
maintenance technician (tracks) entails, it states that the essential requirements of 
that post involve daily contact with the tracks, the catenary or generators and that 
XXXX, who wears a pacemaker, can no longer be exposed to the electromagnetic 
fields present in railway tracks, as they may cause his pacemaker to malfunction. 
17 HR Rail observes that, in the present case, no reasonable accommodation could be 
made. According to HR Rail, it is in view of the essential requirements of the post 
concerned that the possibility of reasonable accommodation must be examined, 
and not in view of any other job which the worker might be fit to perform. In 
support of its argument, it cites a judgment of the tribunal du travail du Hainaut, 
division Charleroi (Labour Court, Charleroi, Hainaut) of 10 December 2018. 
18 HR Rail indicates that the system of redeployment goes well beyond reasonable 
accommodation, which does not extend to requiring the allocation of a job other 
than the one agreed upon. HR Rail insists on the fact that its regulations do not 
establish a general refusal of reasonable accommodation for trainees with 
disabilities and adds that such accommodation, where it can be envisaged, may be 
proposed by the competent medical authorities, which was not the case in the 
present case. 
19 HR Rail states that the system of redeployment laid down in the statutory 
provisions goes beyond reasonable accommodation since it provides that certain 
members of staff are to be given particular priority. It maintains that it is 
justifiable to reserve that system for permanent members of staff and to exclude 
trainees from it, as the traineeship is a period of training and a probationary period 
during which the trainee must prove his ability to hold the job concerned. It claims 
that, as a result, a member of staff who is in training does not enjoy the job 
security associated with a permanent appointment and that the career-mobility 
system is not the same either. It emphasises that the jobs reserved for members of 
staff who are to be redeployed are not necessarily jobs intended for a trainee, who 
has still to be familiarised with the particular environment of railways, and that it 
would be anomalous to consider that members of staff who are in training, who 
have, therefore, not yet demonstrated that they fulfil the conditions for permanent 
appointment, are competing with a member of staff who has been appointed on a 
permanent basis within the framework for members of staff who are to be 
redeployed. It thus concludes that it is legitimate to consider that a member of 
staff who is in training is not in a situation comparable to that of a member of staff 
who has been appointed on a permanent basis and that the regulations may 
exclude him from benefiting from the specific redeployment measures laid down 
by the statutory provisions. 
4. Assessment of the Conseil d’État (Council of State): 
20 The loi du 10 mai 2007 « tendant à lutter contre certaines formes de 
discriminations » (Law of 10 May 2007 ‘combating certain forms of 
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discrimination’; ‘the Law of 10 May 2007’), which transposes Directive 
2000/78/EC into national law, prohibits direct and indirect discrimination on the 
grounds, inter alia, of current and future state of health or disability. 
21 According to the Court of Justice of the European Union, the concept of disability 
within the meaning of Directive 2000/78/EC must be understood as referring to a 
limitation which results in particular from 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 (judgments of 11 April 2013, HK Danmark v Dansk 
almenyttigt Boligselskab and v Dansk Arbejdsgiverforening, C-335/11 and 
C-337/11, EU:C:2013:222, paragraph 38, and of 11 September 2019, DW v Nobel 
Plastiques Ibérica SA, C-397/18, EU:C:2019:703, paragraph 41). 
22 The principle of non-discrimination applies, inter alia, to the termination of 
employment relationships. 
23 Under Article 8 of the Law of 10 May 2007, direct discrimination based on 
disability may be justified only by a genuine and determining occupational 
requirement. Under Article 9, an indirect distinction on the basis of disability 
constitutes indirect discrimination unless it is demonstrated that no reasonable 
accommodation can be made. Finally, under Article 14, all forms of 
discrimination are prohibited, with discrimination including, inter alia, direct 
discrimination, indirect discrimination and the refusal to make reasonable 
accommodation for a person with a disability. 
24 It is neither open to dispute nor disputed that the cause of the decision that the 
applicant was unfit must be classified as a disability within the meaning of the 
Law of 10 May 2007. The question of whether the statutory provision which 
provides for the dismissal of a trainee for permanent physical unfitness constitutes 
a direct or indirect distinction on the basis of disability involves an examination of 
whether or not the concept of disability covers that of permanent physical 
unfitness. In the present case, there is, however, no need to answer that question, 
because it is not disputed that the applicant, due to his heart complaint which 
made it necessary to fit a pacemaker, no longer meets a determining occupational 
requirement of his position as a specialist maintenance technician (tracks), which 
involves being subject to the electromagnetic fields present on railway tracks. 
Consequently, the contested act may constitute prohibited discrimination within 
the meaning of the Law of 10 May 2007 only if it is demonstrated that there was a 
refusal by the opposing party of reasonable accommodation which it was possible 
to make. 
25 According to Article 4(12) of the Law of 10 May 2007, ‘reasonable 
accommodation’ is to mean all the ‘appropriate measures, taken where needed in a 
particular case, to enable a person with a disability to have access to, participate 
and advance in the areas in which this law applies, unless such measures would 
impose a disproportionate burden on the person obliged to adopt them. This 
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burden shall not be disproportionate when it is sufficiently remedied by measures 
existing within the framework of the state’s disability policy’. 
26 In this case, the applicant does not maintain that reasonable accommodation 
would have allowed him to perform his job as a specialist maintenance technician 
(tracks), but he maintains that the opposing party was able to employ him in 
another job, in particular that of warehouseman to which he had been temporarily 
assigned pending his dismissal, and that such assignment would have constituted 
reasonable accommodation which the opposing party was obliged to provide 
under the provisions set forth in the plea in law. On the other hand, the opposing 
party has demonstrated that it was not possible to provide reasonable 
accommodation in order that the applicant could perform the job of specialist 
maintenance technician (tracks), but has not demonstrated that, on the basis of the 
particular conditions of access to the job of ‘specialist maintenance technician 
(tracks)’, it would not have been possible to entrust him, within the railway 
companies, with other tasks which were compatible with his disability and 
corresponded to the same particular conditions of access to employment as those 
for which he was recruited. 
27 The question of whether ‘reasonable accommodation’ is also to involve 
consideration of the possibility of assigning to another job a person who, due to 
his disability, is no longer in a position to perform the job which he held before 
that disability arose, is not assessed in a consistent manner in the case-law. 
28 The opposing party mentions a judgment of the Labour Court, Hainaut, of 
10 December 2018, which, with regard to a train conductor found to be unfit to 
perform that job, held that ‘It is […] in view of the post concerned that reasonable 
accommodation must be examined and not in view of any other job […] which the 
person might be fit to perform. In addition, it does not imply that the employer is 
obliged to examine whether a worker with a disability could be redeployed to 
another post’. XXXX cites other case-law finding, inter alia, that reasonable 
accommodation could consist of the allocation of another post or of the 
modification of the worker’s job. The cour du travail de Bruxelles (Higher Labour 
Court, Brussels) thus held that ‘undertaking training, intended to allow the worker 
to be reassigned to a job which is compatible with his disability, may, depending 
on the circumstances of the case, constitute reasonable accommodation within the 
meaning of the Law of 10 May 2007’ (Higher Labour Court, Brussels, 23 October 
2017). 
29 In several judgments, and in particular in its judgment of 11 September 2019, DW 
v Nobel Plastiques Ibérica SA (C-397/18, EU:C:2019:703, paragraphs 65 and 74), 
the Court of Justice refers, in that regard, on the one hand, to recitals 20 and 21 of 
Directive 2000/78 and, on the other, to recital 17 of that directive in the following 
terms: 
‘65. As set out in recitals 20 and 21 of Directive 2000/78, the employer must take 
appropriate measures, i.e. effective and practical measures to adapt the workplace 
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to the disability, for example by adapting premises and equipment, patterns of 
working time, the distribution of tasks or the provision of training or integration 
resources, without imposing a disproportionate burden on the employer, taking 
account, in particular, of the financial and other costs entailed, the scale and 
financial resources of the undertaking and the possibility of obtaining public 
funding or any other assistance’; 
‘74. In that regard, recital 17 makes clear that that directive does not require the 
recruitment, promotion or maintenance in employment of an individual who is not 
competent, capable and available to perform the essential functions of the post 
concerned, without prejudice to the obligation to provide reasonable 
accommodation for people with disabilities’. 
30 It follows from those recitals that reasonable accommodation relates to ‘the 
workplace’ and may consist of tangible or intangible adaptations, such as adapting 
the ‘distribution of tasks’, but that the obligation not to discriminate does not 
oblige an employer to retain a worker who is no longer capable of performing the 
‘essential functions of the post concerned’ and that is ‘without prejudice to the 
obligation to provide reasonable accommodation for people with disabilities’. 
31 Those recitals do not, however, make it possible to determine with certainty 
whether the obligation to provide reasonable accommodation for persons with 
disabilities carries with it an obligation to assign a person who, due to his 
disability, is no longer capable of performing the essential functions of the post 
concerned, to another post in the business, for which he has the requisite skills, 
capabilities and availability, where such an obligation would not constitute a 
disproportionate burden for the employer. 
32 It is therefore necessary to refer a question on that point for a preliminary ruling. 
5. Question referred for a preliminary ruling: 
33 The following question has been referred to the Court of Justice of the European 
Union for a preliminary ruling: 
‘Is Article 5 of Council Directive 2000/78/EC of 27 November 2000 establishing 
a general framework for equal treatment in employment and occupation to be 
interpreted as meaning that an employer has an obligation, in relation to a person 
who, due to his disability, is no longer capable of performing the essential 
functions of the post to which he was assigned, to assign him to another post, for 
which he has the requisite skills, capabilities and availability, where such a 
measure would not impose a disproportionate burden on the employer?’