Opinion of the Advocate General — ECLI:EU:C:2021:324
Date: 2021-04-22
Language of the case: Bulgarian
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

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:  
12 November 2019 
Referring court:  
Varhoven administrativen sad (Bulgaria)  
Date of the decision to refer:  
31 October 2019 
Appellants in the appeal in cassation:  
TC 
UB 
Respondents in the appeal in cassation:  
Komisia za zashtita ot diskriminatsia  
VA 
Other parties to the proceedings:  
Varhovna administrativna prokuratura  
  
Subject matter of the main proceedings 
Appeals in cassation against the fines imposed on two judges for discriminating 
against a blind person, based on the characteristic of ‘disability’, who did not 
allow her to participate as a court assessor in judicial criminal proceedings. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of Article 5(2) of the United Nations Convention on the Rights of 
Persons with Disabilities and of Article [2](1), (2) and (3) and Article 4(1) of 
EN 
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Council Directive 2000/78/EC of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation; Article 267 TFEU 
Questions referred 
1. Does the interpretation of Article 5(2) of the United Nations Convention on 
the Rights of Persons with Disabilities and of Article [2](1), (2) and (3) and 
Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 
establishing a general framework for equal treatment in employment and 
occupation lead to the conclusion that it is permissible for a person without 
the ability to see to be able to work as a court assessor and participate in 
criminal proceedings, or: 
2. Is the specific disability of a permanently blind person a characteristic which 
constitutes a genuine and determining requirement of the activity of a court 
assessor, the existence of which justifies a difference of treatment and does 
not constitute discrimination based on the characteristic of ‘disability’? 
Provisions of international law cited by the referring court 
1 United Nations Convention on the Rights of Persons with Disabilities, in force 
since 3 May 2008, approved on behalf of the European Community by Council 
Decision 2010/48/EC of 26 November 2009 (OJ 2010 L 23, p. 23) — Articles 1, 
4, 5 and 27. 
Provisions of EU law cited 
Article 21 of the Charter of Fundamental Rights of the European Union 
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), recitals 6, 17, 23 and 37, Articles 1 to 4 and Article 18. 
National legislation cited by the referring court 
Konstitutsia na Republika Bulgaria (Constitution of the Republic of Bulgaria, DV 
No 56 of 13 July 1991) — Article 6 (Equality before the law; Impermissibility of 
restrictions of rights on the basis of certain characteristics) and Article 48 (Right 
to work; Obligation of the State to establish requirements for the realisation of the 
right to work, in particular for persons with mental and physical disabilities) 
Zakon za zashtita ot diskriminatsia (Law on protection against discrimination, DV 
No 86 of 30 September 2003) — Article 4 (Prohibition on discrimination based on 
listed characteristics, including disability), Article 7 (Cases which do not 
constitute discrimination, including a difference of treatment of persons which is 
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based on a characteristic related to any of the discriminatory grounds referred to in 
Article 4 of the law where, by reason of the nature of the particular profession or 
particular activity concerned or of the context in which it is carried out, such a 
characteristic constitutes a genuine and determining occupational requirement, the 
objective is legitimate and the requirement does not go beyond what is necessary 
in order to achieve the objective), Article 40 (Tasks of the Komisia za zashtita ot 
diskriminatsia [Commission for protection against discrimination]), Article 50 
(Procedures before the Commission) and Article 68 (Possibility of judicial review 
of the decisions of the Commission). 
Zakon za sadebnata vlast (Law on the judiciary, ‘the ZSV’, DV No 64 of 7 August 
2007) — Article 66 (Inclusion of court assessors in the formation of the court 
competent at first instance; Rights and obligations of court assessors) and 
Article 67 (Requirements imposed on court assessors in relation to age, registered 
address, education, absence of convictions for intentional criminal offences and 
absence of mental illnesses). 
Nakazatelno-protsesualen kodeks (Code of Criminal Procedure, ‘the NPK’, DV 
No 86 of 28 October 2005) — Article 1 (Objectives of the Code of Criminal 
Procedure), Article 8 (Inclusion of court assessors in the formation of the court; 
Equality of rights for court assessors and judges), Article 13 (Obligation of the 
court to take all measures necessary to establish the objective truth), Article 14 
(Decision-making by the court based on its own conviction, which relies on an 
objective, comprehensive and complete assessment of all the facts and 
circumstances) and Article 18 (Principle of immediacy — the court bases its 
decisions on evidence that it gathers and evaluates itself). 
Brief summary of the facts and procedure 
2 The proceedings before the administrative authority, the Komisia za zashtita ot 
diskriminatsia (Commission for protection against discrimination; ‘the 
KZDiskr.’), were initiated on the basis of the complaint lodged by VA against 
Judge UB at Sofiyski rayonen sad (Sofia District Court; ‘the SRS’) and against the 
President of the SRS, which was TC at that time. 
3 VA, the complainant [in the proceedings] before that Commission, is restricted 
permanently and for the rest of her life in her ability to work owing to the loss of 
her sight. She completed her law studies and passed the aptitude test in law in 
1977. She was employed at the Sayuz na slepite (Association for the Blind) and in 
the organisations of the European Blind Union. In 2014, she was admitted as a 
court assessor in a procedure conducted by the Stolichen obshtinski savet (Sofia 
City Council) and allocated to the SRS. On 25 March 2015, she was sworn in as a 
court assessor at that court. As evidenced by a protocol of 23 March 2015 on the 
allocation of court assessors to the panels of the court by lot, VA was allocated to 
the Sixth Criminal Chamber as a court assessor. According to information 
provided by the President of the SRS, VA did not participate in a single oral 
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procedure in criminal proceedings in the period from 25 March 2015 to 9 August 
2016, the date of the entry into force of the amendment to Article 72 ZSV, by 
which the electronic allocation of court assessors was introduced. 
4 In the complaint by way of which the administrative proceedings before the 
KZDiskr. were initiated, and also in the present proceedings, VA asserts that UB, 
in her capacity as judge of the Sixth Criminal Chamber of the SRS, to whom she 
was assigned as a court assessor, did not allow her to participate in judicial 
criminal proceedings. VA also submits that, by letter of 29 May 2015, she 
contacted the President of the SRS and requested that she be assigned to a 
different judge in order to be able to exercise her right to work as a court assessor, 
but her letter did not receive a reply. She takes the view that Judge UB and the 
President of the SRS discriminated against her based on her disability. 
5 In her submissions submitted in the course of the proceedings before the 
KZDiskr., Judge UB stated that the nature of the duties arising from the tasks of 
the court assessor in criminal proceedings and the requirement to have certain 
specific physical characteristics related to the ability of the judicial panel to 
exercise its powers did not fall within the scope of the anti-discrimination 
provision of Article 4(2) ZZDiskr.. UB puts forward arguments in favour of the 
application of point 2 of Article 7(1) ZZDiskr., according to which, by reason of 
the nature of the duties of a court assessor, a difference of treatment of VA which 
was based on a characteristic related to the discriminatory ground of ‘disability’ 
constituted a genuine and determining requirement that was objectively justified 
and pursued a legitimate objective, namely observance of the principles of the 
NPK, which laid down the tasks of court assessors. 
6 TC submitted written observations in which arguments in favour of the 
applicability of point 2 of Article 7(1) ZZDiskr. were put forward, according to 
which the nature of VA’s ‘disability’ impaired the performance of her specific 
tasks as a court assessor and would lead to a violation of the principle of 
immediacy and of the principles of establishing the objective truth and the equal 
participation of the public in criminal proceedings. 
7 By decision of 6 March 2017, the KZDiskr. found that TC and UB discriminated 
against VA based on the characteristic of ‘disability’ pursuant to Article 4(2) in 
conjunction with Article 4(1) ZZDiskr. and point 7 of Paragraph 1 of the 
Dopalnitelnite razporedbi na ZZDiskr. (Additional provisions for the ZZDiskr.). 
Accordingly, a fine of 250 leva (BGN) was imposed on TC and 500 leva (BGN) 
was imposed on UB pursuant to Article 80(1) ZZDiskr.. Pursuant to point 6 of 
Article 47 ZZDiskr., TC and UB were recommended not to commit any violations 
of the existing law on protection against discrimination in the future. VA’s 
complaint concerning her alleged discrimination based on the characteristic of 
‘gender’ was dismissed as unsubstantiated. 
8 TC and UB contested this decision of the KZDiskr. before the Administrative sad 
Sofia grad (Sofia City Administrative Court). The latter found that the contested 
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decision of the KZDiskr. constituted a lawful administrative act and dismissed the 
actions. 
9 The Administrative Court took the view that, given the legal prohibition on a 
difference of treatment based on certain characteristics protected by law and the 
right of individuals, enshrined in Article 26 ZZDiskr., to equal conditions of 
access to a profession or an activity, to opportunities to exercise them and develop 
themselves in them irrespective of the characteristics pursuant to Article 4(1), it 
was impermissible to impose restrictions ‘as a matter of principle’ or to restrict 
access to the exercising of a particular profession or particular activity — that of a 
court assessor in the present case — based on the assumption that the disability 
concerned would render it impossible for that profession or activity to be 
exercised to the full extent. In fact, the specific nature of the criminal procedure 
required that, in exercising their powers, court assessors respected the principles 
of criminal procedure relating to immediacy, the establishment of the objective 
truth and the formation of an inner conviction by the competent panel of the court. 
However, the court at first instance took the view that the effect of this specific 
nature must not be so absolute as to restrict the right of access to a particular 
profession or particular activity as enshrined in the ZZDiskr. specifically and in 
Bulgarian law in general. The assumption that the existence of an illness or 
disability deprived, in any event, a person of certain capacities constituted 
unjustified and discriminatory treatment. This was also supported by the fact that, 
following the entry into force of the amendment to Article 72 ZSV on 9 August 
2016, by which the electronic allocation of court assessors was introduced, VA 
took part in a large number of the main hearings in criminal proceedings, for 
which she received remuneration. 
10 An appeal against the judgment at first instance was brought before the Varhoven 
administrativen sad (Supreme Administrative Court). The latter considers that an 
interpretation of provisions of EU law is necessary for a correct decision in the 
dispute. 
Brief summary of the positions of the parties 
11 The main objection raised by the appellant in cassation UB is that the substantive 
law, namely the ZZDiskr., had not been correctly applied in the present case, 
specifically as a result of the absolutisation by the court at first instance of the 
right of access to a particular profession or particular activity, as enshrined in 
provisions of Bulgarian and international law, thus putting the Law on protection 
against discrimination at odds with a superior law, the NPK, and the principles of 
criminal procedure laid down therein, namely with the principle of immediacy 
pursuant to Article 18 NPK and with the principle of establishing the objective 
truth pursuant to Article 13 NPK, which she, as a criminal judge, must observe 
when examining cases at the District Court and according to which she must 
ensure that all members of the panel of the court handle evidence in the same way 
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such that each member of the panel of the court has an immediate impression of 
the conduct of the parties to the proceedings. 
12 The appellant in cassation TC takes the view that the contested judicial decision 
was erroneous, as it held that point 2 of Article 7(1) ZZDiskr. was not applicable. 
He asserts that the present case fell within the scope of that provision. 
Furthermore, taking into account the exercise of the activity of court assessors and 
their duties, it was to be assumed that persons whose disabilities would lead to a 
breach of the principles of immediacy, of establishing the objective truth and the 
formation of an inner conviction by the panel of the court, as laid down by law 
and in the Constitution of the Republic of Bulgaria, could not participate actively 
and to the full extent. 
Brief summary of the basis for the reference 
13 The referring court finds that VA is a natural person with a disability owing to the 
permanent loss of her sight. 
14 National law provides for a system of legislation which, in principle, ensures the 
protection of persons with disabilities and prohibits any discrimination based on 
the characteristic of ‘disability’. On the other hand, provision is made for 
exceptions which justify a difference of treatment which is based on a 
characteristic related to one of the discriminatory grounds where, by reason of the 
nature of the particular profession or particular activity concerned or of the 
context in which it is carried out, such a characteristic constitutes a genuine and 
determining occupational requirement, the objective is legitimate and the 
requirement does not go beyond what is necessary in order to achieve the 
objective. 
15 The referring court takes the view that it is unclear to what extent the difference of 
treatment, based on a disability, of a person with that disability when carrying out 
the activity of a court assessor is permissible in light of the provisions of the UN 
Convention, the Charter of Fundamental Rights of the European Union and 
Directive 2000/78/EC. 
16 Although the difference of treatment is based on the characteristic of ‘disability’, 
which is worthy of protection, it is related to the requirements and the application 
of the principles of criminal procedure; such legislation and case-law may run 
counter to the requirement that all persons with disabilities must be provided with 
equal employment opportunities. 
17 In assessing the necessity of the reference for a preliminary ruling, the referring 
court also took account of the requirement that Directive 2000/78/EC must be 
interpreted in accordance with the UN Convention. This requires, in relation to the 
present case, equal and effective legal protection against all discrimination against 
persons with disabilities on any grounds whatsoever, and not only on the basis of 
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certain personal characteristics worthy of protection, as provided for in the 
secondary law of the European Union. 
18 The provisions of international law and the secondary law of the European Union 
require uniform and identical interpretation of the applicable provisions, which 
falls within the competence of the Court of Justice of the European Union. 
19 For the reasons set out above, the Supreme Administrative Court takes the view 
that it is necessary to stay the proceedings and to refer a request for a preliminary 
ruling to the Court of Justice of the European Union with the questions set out 
above.