Opinion of the Advocate General — ECLI:EU:C:2020:961
Date: 2020-11-25
Language of the case: Estonian
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Estonia

Summary C-795/19 — 1 
Case C-795/19 
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 October 2019 
Referring court: 
Riigikohus (Estonia) 
Date of the decision to refer: 
24 October 2019 
Applicant: 
XX 
Defendant: 
Tartu Vangla 
Other parties to the proceedings: 
Justiitsminister 
Tervise- ja tööminister 
Õiguskantsler 
 
Subject matter of the main proceedings 
Constitutionality review in proceedings brought by XX contesting the decision 
adopted by the Governor of Tartu Vangla (Tartu Prison) on 28 June 2017 
dismissing XX. 
Subject matter and legal basis of the reference 
Interpretation of EU law. The request for a preliminary ruling under 
Article 267(1)(b) and (3) TFEU concerns the interpretation of Article 2(2), read in 
combination with Article 4(1), of Directive 2000/78/EC. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 24. 10. 2019 — CASE C-795/19 
 
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Question referred 
Should Article 2(2), read in combination with Article 4(1), of Council Directive 
2000/78/EC of 27 November 2000 establishing a general framework for equal 
treatment in employment and occupation, be interpreted as precluding provisions 
of national law which provide that impaired hearing below the prescribed standard 
constitutes an absolute impediment to work as a prison officer and that the use of 
corrective aids to assess compliance with the requirements is not permitted? 
Provisions of EU law cited 
Article 2 TEU 
Charter of Fundamental Rights of the European Union, Article 21(2) 
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), Article 2(1) and (2), Article 2(2)(a), Article 2(5), Article 3(1) and 
Article 4(1) 
National law cited 
Eesti Vabariigi põhiseadus (Constitution of the Republic of Estonia, 
‘Constitution’), Paragraph 12(1) and Paragraph 29 
Vangistusseadus (Estonian Code of Criminal Procedure, ‘Code’), 
Paragraph 146(1) and (4) 
Põhiseaduslikkuse järelevalve kohtumenetluse seadus (Estonian Law on 
Constitutionality Review Proceedings, ‘Constitutionality Review Law’), 
Paragraph 14(2) 
Väljateenitud aastate pensionide seadus (Estonian Law on Pension Entitlements, 
‘Pension Entitlements Law’), Paragraph 2(2) 
Vabariigi Valitsuse 22. jaanuari 2013. aasta määrus nr 12 “Vanglateenistuse 
ametniku tervisenõuded ja tervisekontrolli kord ning tervisetõendi sisu ja vormi 
nõuded” (Regulation No 12 of the Government of the Republic of Estonia of 
22 January 2013 on health requirements for prison officers, medical checks and 
the form and content of health certificates), Paragraphs 3 to 5 and Annex 1 
Brief summary of the facts and the procedure in the main proceedings 
1 On 22 January 2013, the Estonian Government adopted Regulation No 12 on 
health requirements for prison officers, medical checks and the form and content 
of health certificates (Regulation No 12) pursuant to Paragraph 146(4) of the 
TARTU VANGLA 
 
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Code. Paragraph 4 of Regulation No 12, which entered into force on 26 January 
2013, lays down hearing requirements as one of the health requirements for prison 
officers. It states that the hearing of prison officers must be sufficiently acute to 
enable them to communicate by telephone and to hear alarms and public address 
communications (Regulation No 12, Paragraph 4(1)). In a medical check, hearing 
must not be impaired above 30 dB at a frequency of 500-2000 Hz and 40 dB at a 
frequency of 3000-4000 Hz in the ear with better hearing and 40 dB at a 
frequency of 500-2000 Hz and 60 dB at a frequency of 3000-4000 Hz in the ear 
with poorer hearing (Regulation No 12, Paragraph 4(2)). Annex 1 to Regulation 
No 12 contains a list of health problems that prevent prison officers from 
performing their functions (Regulation No 12, Paragraph 5(1)). Any absolute 
medical impediment prevents a person from being employed in the prison service 
and from training as a prison officer (Regulation No 12, Paragraph 5(2), first 
sentence). According to Annex 1, impaired hearing below the prescribed standard 
is an absolute impediment. 
2 XX (or ‘applicant’) worked at Tartu Prison as an officer on the closed prison wing 
from 2 December 2002 and as an officer on the open prison wing from 1 June 
2008. During a medical check in April 2017, his hearing in one ear was found to 
be impaired, measuring 55-75 dB at a frequency of 500-2000 Hz. If the applicant 
uses his hearing aid, his hearing complies with requirements. His hearing in the 
other ear complies with the requirements set out in Regulation No 12. By decision 
of 28 June 2017 (‘contested decision’), the governor of Tartu Vangla (Tartu 
Prison) dismissed the applicant from the prison service. 
3 By judgment of 14 December 2017, Tartu Halduskohus (Administrative Court, 
Tartu) dismissed the application lodged by XX which was seeking judgment to 
find the contested decision unlawful and to award damages. The Administrative 
Court held that it was fundamentally sensible to lay down health requirements that 
preclude work as a prison officer; that public policy and public security are 
fundamental social values, the protection of which justifies restricting other 
fundamental rights; and that the hearing requirement laid down in Paragraph 4(1) 
of Regulation No 12 is a necessary and well-founded measure that ensures that 
acting prison officers are able to perform the functions assigned to them with due 
regard for the working regulations of prisons. 
4 By judgment of 11 April 2019, the Tartu Ringkonnakohus (Court of Appeal, 
Tartu) set the judgment of the Administrative Court aside and delivered a new 
judgment in the matter admitting the application, finding the contested decision 
unlawful and awarding the applicant damages of 60 months’ pay. The Court of 
Appeal found Annex 1 to Regulation No 12 to be unconstitutional and disapplied 
that Annex in its judgment in the case inasmuch as impaired hearing below the 
prescribed standard constitutes an absolute impediment to work as a prison 
officer. The Court of Appeal held that that standard infringes the general principle 
of equal treatment enacted in Paragraph 12(1) of the Constitution and the principle 
of legitimate expectation enacted in the second sentence of Paragraph 11 of the 
Constitution. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 24. 10. 2019 — CASE C-795/19 
 
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5 The Court of Appeal compared persons with impaired hearing with persons with 
impaired vision. It noted that vision requirements are laid down in Paragraph 3 of 
Regulation No 12 and that vision below the prescribed standard likewise 
constitutes an absolute impediment to work as a prison officer; that, according to 
Paragraph 3(2) of Regulation No 12, however, prison officers are entitled to wear 
contact lenses and glasses; that the hearing requirements are laid down in 
Paragraph 4 of Regulation No 12, which does not provide for the possibility of 
using a hearing aid in cases of impaired hearing; that there must be reasonable and 
appropriate grounds for different treatment; and that that criterion was currently 
not fulfilled. The Court of Appeal held that a list could be compiled of the hearing 
aids permitted in a prison; that, however, the exclusion of all hearing aids without 
distinction and the exclusion of persons with impaired hearing, but not of persons 
with impaired vision, from prison service was inappropriate. 
6 The applicant’s legitimate expectation had also been infringed. It recalled that the 
applicant had joined Tartu Vangla (Tartu Prison) as a security guard in 2002, 
when the law did not impose restrictions excluding persons with impaired hearing 
from prison service; that the applicant had contended that, as a result of his 
dismissal from the service, he had lost his right to the special vested pension under 
Paragraph 2(2) of the Pension Entitlements Law that he would have acquired over 
a number of years had he remained in the service. 
7 The Court of Appeal found Annex 1 to Regulation No 12 to be unconstitutional 
inasmuch as impaired hearing below the prescribed standard constitutes an 
absolute impediment to work as a prison officer, disapplied that Annex and 
referred the case to the Riigikohus (Supreme Court) for review of the 
constitutionality of the provision. 
Principal arguments of the parties in the main proceedings on the question of 
constitutionality 
8 The Õiguskantsler (Ombudsman) is of the opinion that Paragraph 4 of 
Regulation No 12 and Annex 1 to that Regulation conflict with the freedom of 
occupation enacted in Paragraph 29 of the Constitution and with Paragraph 12(1) 
of the Constitution regulating the general principle of equal treatment and 
prohibiting discrimination; that the contradiction arises because there is no 
possibility of assessing if a prison officer’s impaired hearing impedes the 
performance of his functions at work and whether the impaired hearing could be 
corrected by using a hearing aid; that the Court of Appeal should have reviewed 
Regulation No 12 for any potential conflict with Council Directive 2000/78, 
which was transposed into Estonian law under the Võrdse kohtlemise seadus 
(Estonian Law on Equal Treatment); and that it should have considered if the 
disability impeded the prison officer concerned in this particular case in the 
performance of his functions at work. 
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9 The Justiitsminister (Estonian Minister for Justice) is of the opinion that Annex 1 
to Regulation No 12 is not unconstitutional; that the prison officer’s normal 
hearing should be sufficient to guarantee his own and other officers’ safety and 
unrestricted communication in all circumstances without a hearing aid; and that 
the same hearing requirements apply to prison officers and to police officers on 
duty. 
10 The Tervise- ja tööminister (Estonian Minister for Health and Employment) 
holds that Regulation No 12 and Annex 1 thereto may give rise to unjustified 
unequal treatment between persons with impaired vision and persons with 
impaired hearing as, unlike impaired vision, impaired hearing cannot be corrected, 
and that it would be different if the rules governing the health requirements for 
prison officers provided for the possibility of testing the individual circumstances 
of each case of impaired hearing. 
11 Tartu Vangla (Tartu Prison) concurs with the reasoning and opinion of the 
Minister for Justice. 
12 The applicant contends that Paragraph 4 of Regulation No 12 and Annex 1 to that 
Regulation infringe freedom of occupation, the general principle of equal 
treatment and the ban on discrimination enacted in the Constitution. 
Brief summary of the basis for the reference 
13 The Põhiseaduslikkuse järelevalve kolleegium (Constitutionality Review 
Senate) found that it is common ground that the applicant worked as a prison 
officer for over 14 years and six months. According to the applicant’s most recent 
job description, his official functions included supervising persons under 
electronic surveillance by the surveillance system and passing on information on 
those persons, monitoring surveillance and signal transmitters, responding to and 
passing on information on alarms and identifying breaches of regulations. At no 
point in his period of service to date has the applicant's performance of his 
functions given rise to criticism. Hearing requirements, including the ban on the 
use of hearing or other aids, were adopted after the applicant had been with the 
service for over ten years. During a medical check in 2017, it was found that the 
applicant’s hearing in one ear did not meet the prescribed requirements. The 
applicant contends that his hearing has been impaired in that ear since he was a 
child. The Ministry of Justice has confirmed that hearing aids are not of 
themselves prohibited in prisons. The justification given by the Ministry of Justice 
and Tartu Vangla (Tartu Prison) for the requirements and restrictions adopted 
under Regulation No 12 is that, because of the need to guarantee security and 
public policy, no aid should be used in order to meet hearing requirements and 
that, as resources are limited, the applicant must be able to perform all the 
functions of a prison officer for which he is trained and to provide the police with 
any administrative assistance required. It contends that a prison officer’s normal 
hearing should be sufficient to guarantee his own and other officers’ safety and 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 24. 10. 2019 — CASE C-795/19 
 
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unrestricted communication in all circumstances, even without any aid (e.g. if the 
hearing aid battery dies or the aid is lost in an attack). 
14 The Court of Appeal initiated constitutionality review proceedings to verify the 
constitutionality of the provisions of Regulation No 12. It is not clear from the 
decision whether the court verified the compatibility of the contested regulation 
with EU law or national law transposing it. In order to ensure that EU law is fully 
effective, any national provision to the contrary must, if need be, be disapplied, 
and there is no need to wait for it to be set aside in constitutionality review 
proceedings (see, for example, judgment of 4 December 2018, The Minister for 
Justice and Equality and Commissioner of the Garda Síochána, C-378/17, 
EU:C:2018:979, paragraph 50). 
15 The obligation of the public authorities to treat persons with a disability equally in 
comparable situations and not to discriminate against them follows from EU law 
as well as from the Constitution. According to Article 2 TEU, the European Union 
is based on the principle of equality. Article 21(1) of the Charter of Fundamental 
Rights of the European Union prohibits any discrimination based on disability. 
Article 1 of Directive 2000/78 states that the purpose of the Directive is to lay 
down a general framework for combating discrimination, including on the 
grounds of disability. According to Article 3(1) of the Directive, it applies to all 
persons, as regards both the public and private sectors, including public bodies, in 
relation, inter alia, to employment and working conditions, including dismissals 
(subparagraph (c)). According to Article 2(2)(a) of the Directive, direct 
discrimination is taken to occur where one person is treated less favourably than 
another is, has been or would be treated in a comparable situation. Although 
Article 4(1) of the Directive states that, notwithstanding Article 2(1) and (2) of the 
Directive, the Member States may provide that a difference of treatment which is 
based on a characteristic related to any of the grounds for discrimination referred 
to in Article 1 shall not 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, such exceptions may only be created provided that the 
objective is legitimate and the requirement is proportionate. According to 
Article 2(5) of the Directive, the Directive is without prejudice to measures laid 
down by national law which, in a democratic society, are necessary for public 
security, for the maintenance of public order and the prevention of criminal 
offences, for the protection of health and for the protection of the rights and 
freedoms of others. Recital 18 of the Directive clarifies that the Directive does not 
require the armed forces and the police, prison or emergency services to recruit or 
maintain in employment persons who do not have the required capacity to carry 
out the range of functions that they may be called upon to perform with regard to 
the legitimate objective of preserving the operational capacity of those services. 
Moreover, the Court of Justice of the European Union has ruled that the concern 
to ensure the operational capacity and proper functioning of those services is a 
legitimate objective of differentiated treatment of persons within the meaning of 
Article 4(1) of Directive 2000/78. However, it must be ascertained whether, in 
TARTU VANGLA 
 
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laying down such a restriction, the national rule contested in the main proceedings 
laid down a requirement that is proportionate and whether this restriction is 
suitable for securing the attainment of the objective pursued, and does not go 
beyond what is necessary in order to attain it (see, for example, judgment of 
13 November 2014, Vital Pérez, C-416/13, EU:C:2014:2371, paragraphs 43 to 
45). 
16 The Senate is of the opinion that its ruling on the constitutionality review case 
pending before it requires a preliminary ruling by the Court of Justice of the 
European Union as to whether Article 2(2), read in combination with Article 4(1), 
of Directive 2000/78, should be interpreted to mean that the Directive precludes 
provisions of national law which provide that impaired hearing below the 
prescribed standard constitutes an absolute impediment to work as a prison officer 
and that the use of corrective aids to assess compliance with the requirements is 
not permitted. In the opinion of the Senate, neither the wording of the Directive 
nor the current case-law of the Court of Justice of the European Union on the 
substance of Article 4(1) of Directive 2000/78 provide unequivocal guidance for 
the present case. Nor are any requests for a preliminary ruling on this question 
pending before the Court. Thus, this case does not concern an acte clair or an acte 
éclairé. 
17 The Supreme Court is unable in this case to directly review the compatibility of a 
national provision of law with EU law in constitutionality review proceedings. 
The Constitutionality Review Law does not include any rules on orders for 
reference. However, nor are orders for reference precluded in constitutionality 
review proceedings. If, in interpreting the Directive, the Court of Justice of the 
European Union rules that it precludes provisions of national law which provide 
that impaired hearing below the prescribed standard constitutes an absolute 
impediment to work as a prison officer and that the use of corrective aids to assess 
compliance with the requirements is not permitted, the provisions of Regulation 
No 12 contested in this case and subject to constitutionality review are 
incompatible with EU law. In that case, the Court of Appeal should have 
disapplied those provisions in the administrative proceedings in keeping with the 
principle of the primacy of EU law and should not have initiated constitutionality 
review proceedings. Consequently, the Senate should have dismissed the 
application in accordance with Paragraph 9(1) and Paragraph 14(2) of the 
Constitutionality Review Law on the grounds that the contested provisions were 
irrelevant to the decision in the administrative proceedings. If it transpires that the 
contested regulation is compatible with the Directive, that does not of itself mean 
that these provisions are constitutional and the Senate can proceed with its 
constitutionality review.