Opinion of the Advocate General — ECLI:EU:C:2012:775
Date: 2012-12-06
Language of the case: Danish
Subject matter: External relations;Principles, objectives and tasks of the Treaties;Social Policy;International agreements
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary — Judgment of the Court (Second Chamber), 11 April 2013 1. International agreements — Agreements concluded by the European Union — Primacy over instruments of secondary law of the European Union — Obligation to interpret instruments of secondary law in the light of international agreements — Interpretation of Directive 2000/78 in the light of the United Nations Convention on the Rights of Persons with Disabilities (Art. 216(2) TFEU) 2. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of disability — Concept of disability — Illness medically diagnosed as curable or incurable — Person unable, or able only to a limited extent, to perform his work for a long period — Included (Council Directive 2000/78, Art. 5, recitals 16 and 20) 3. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Reasonable accommodation for disabled persons — Concept — Reduction in working hours — Included (Council Directive 2000/78, Art. 5, recital 20) 4. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of disability — National provision under which an employer is entitled to dismiss, with a reduced notice period, a disabled employee who has been absent because of illness with his salary being paid for 120 days during 12 consecutive months — Absence of the disabled worker attributable to the employer’s failure to take appropriate measures for the worker — Provision not permissible (Council Directive 2000/78, Art. 5) 5. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on grounds of disability — National provision under which an employer is entitled to dismiss, with a reduced notice period, a disabled employee who has been absent because of illness with his salary being paid for 120 days during 12 consecutive months — Indirect discrimination — Justification — Conditions (Council Directive 2000/78) 1. See the text of the decision. (see paras 28-32) 2. The concept of ‘disability’ in Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails 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, and the limitation is a long-term one. The concept of ‘disability’ must be understood as referring to a hindrance to the exercise of a professional activity, not to the impossibility of exercising such an activity. The state of health of a person with a disability who is fit to work, albeit only part-time, is thus capable of being covered by the concept of ‘disability’. Moreover, the nature of the measures to be taken by the employer is not decisive for considering that a person’s state of health is covered by that concept. A finding that there is a disability does not depend on the nature of the accommodation measures such as the use of special equipment. It should be noted here that 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 directive. According to recital 16 in the preamble to Directive 2000/78, such measures are intended to accommodate the needs of disabled persons. They are therefore the consequence, not the constituent element, of the concept of disability. (see paras 44-47, operative part 1) 3. The concept of ‘reasonable accommodation’ to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation, within the meaning of Article 5 of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, must be understood as referring to the elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers. As recital 20 in the preamble to Directive 2000/78 and the second paragraph of Article 2 of the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48, envisage not only material but also organisational measures, and the term ‘pattern’ of working time must be understood as the rhythm or speed at which the work is done, it cannot be ruled out that a reduction in working hours may constitute one of the accommodation measures referred to in Article 5 of that directive. It follows that Article 5 of the directive must be interpreted as meaning that a reduction in working hours may constitute one of the accommodation measures referred to in that article. It is for the national court to assess whether a reduction in working hours, as an accommodation measure, represents a disproportionate burden on the employer. Moreover, the list of appropriate measures to adapt the workplace to the disability in recital 20 in the preamble to Directive 2000/78 is not exhaustive and, consequently, a reduction in working hours can be regarded as an accommodation measure referred to in Article 5 of the directive, in a case in which reduced working hours make it possible for the worker to continue employment, in accordance with the objective of that article. (see paras 54-56, 64, operative part 2) 4. Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding national legislation under which an employer can terminate the employment contract with a reduced period of notice if the disabled worker concerned has been absent because of illness, with his salary being paid, for 120 days during the previous 12 months, where those absences are the consequence of the employer’s failure to take the appropriate measures in accordance with the obligation to provide reasonable accommodation laid down in Article 5 of that directive. (see para. 68, operative part 3) 5. Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding national legislation under which an employer can terminate the employment contract with a reduced period of notice if the disabled worker concerned has been absent because of illness, with his salary being paid, for 120 days during the previous 12 months, where those absences are the consequence of his disability, unless that legislation, as well as pursuing a legitimate aim, does not go beyond what is necessary to achieve that aim, that being for the national court to assess. Such a provision is liable to produce a difference of treatment indirectly based on disability, in that a worker with a disability is more exposed to the risk of application of a shortened notice period than a worker without a disability. Compared with such a worker, a worker with a disability has the additional risk of an illness connected with his disability. He thus runs a greater risk of accumulating days of absence on grounds of illness, and consequently of reaching the 120-day limit provided for in the national legislation. However, it may be accepted that that rule has the effect, for employers, of encouraging recruitment and maintenance in employment. In that respect, it is for the national court to examine whether such a provision, while pursuing the legitimate aims of, first, promoting the recruitment of persons with illnesses and, secondly, striking a reasonable balance between the opposing interests of employees and employers with respect to absences because of illness, takes account of relevant factors relating to workers with disabilities. In particular, the risks run by disabled persons, who generally face greater difficulties than non-disabled persons in re-entering the labour market, and have specific needs in connection with the protection their condition requires, should not be overlooked. (see paras 76, 88, 90-92, operative part 4)