62022CJ0518_RES
Case C‑518/22
J.M.P.
v
AP Assistenzprofis GmbH
(Request for a preliminary ruling from the Bundesarbeitsgericht)
Judgment of the Court (Second Chamber) of 7 December 2023
(Reference for a preliminary ruling – Social policy – Equal treatment in employment and occupation – Directive 2000/78/EC – Article 2(5) – Prohibition of discrimination on grounds of age – United Nations Convention on the Rights of Persons with Disabilities – Article 19 – Living independently and being included in the community – Charter of Fundamental Rights of the European Union – Article 26 – Social and occupational integration of persons with disabilities – Personal assistance service for persons with disabilities – Job offer stating a minimum age and maximum age of the person to be hired – Account taken of the wishes and interests of the disabled person – Justification)
Social policy – Equal treatment in employment and occupation – Directive 2000/78 – Prohibition of discrimination on grounds of age – Provision of personal assistance services – Recruitment subject to an age requirement – Account taken of the wishes and interests of the disabled person – Difference of treatment arising from the national legislation designed to protect the self-determination of persons with disabilities – Whether permissible – Condition
(Charter of Fundamental Rights of the European Union, Art. 26; Council Directive 2000/78, Art. 2(5); Council Decision 2010/48)
(see paragraphs 54-66, 68, operative part)
Résumé
In July 2018, AP Assistenzprofis GmbH, a provider of assistance and advisory services to persons with disabilities, published a job offer stating that A., a 28‑year‑old female student, was looking for female personal assistants, who should be ‘preferably between 18 and 30 years old’, to help her in all areas of everyday life.
J.M.P., who was born in 1968, applied for that job and received a rejection from AP Assistenzprofis.
Claiming that she had been discriminated against on grounds of age, J.M.P. brought an action against AP Assistenzprofis before the Arbeitsgericht Köln (Labour Court, Cologne, Germany) seeking compensation for the resulting damage. That court upheld that action.
Following the judgment of the Landesarbeitsgericht Köln (Higher Labour Court, Cologne, Germany), by which the appeal brought by AP Assistenzprofis was upheld, J.M.P. brought an appeal on a point of law (Revision) against that judgment before the referring court, the Bundesarbeitsgericht (Federal Labour Court, Germany).
Since it was uncertain regarding the justification, under Directive 2000/78, (
1
) of the direct discrimination on grounds of age suffered by J.M.P., and sought clarification on the balance to be struck, having regard to that directive, between the right to effective protection against discrimination on grounds of age and the disabled person’s right to effective protection against discrimination on the basis of her disability, the referring court decided to make a reference for a preliminary ruling to the Court of Justice.
By its judgment, the Court answers that Directive 2000/78, read in the light of Article 26 of the Charter of Fundamental Rights of the European Union, concerning the integration of persons with disabilities, and Article 19 of the United Nations Convention on the Rights of Persons with Disabilities, (
2
) entitled ‘Living independently and being included in the community’, does not preclude the recruitment of a person providing personal assistance from being subject to an age requirement pursuant to the national legislation in the case at hand, if such a measure is necessary for the protection of the rights and freedoms of others.
Findings of the Court
The Court analyses the difference of treatment on grounds of age at issue in the main proceedings in order to determine whether it is justified having regard to Article 2(5) of Directive 2000/78. (
3
)
First of all, it finds that that difference of treatment is the result of a measure laid down by national law, (
4
) in accordance with Article 2(5) of that directive.
Next, it examines whether that measure pursues the objective of ‘the protection of the rights and freedoms of others’, laid down by that provision.
In that regard, according to the Court, the national legislation in question pursues an objective of protecting the self-determination of persons with disabilities, by guaranteeing those persons’ right to express their wishes and to make choices freely as regards decisions on the personal assistance services and their provision, since those services concern all areas of life and extend considerably into the private and intimate areas of the life of the person in receipt of them, an objective which comes within the scope of Article 2(5) of Directive 2000/78.
That right to express wishes and to choose freely gives specific expression to the right to integration of persons with disabilities enshrined in Article 26 of the Charter of Fundamental Rights. Furthermore, respect for the self-determination of persons with disabilities is an objective enshrined in Article 19 of the UN Convention, the provisions of which may be relied on for the purpose of interpreting Directive 2000/78.
Lastly, the Court ascertains whether the difference of treatment at issue in the main proceedings is the result of a measure that is necessary for the protection of that right to self-determination.
The Court states, in that regard, that, in a situation such as that at issue in the main proceedings, taking account of the preference for a certain age range expressed by the disabled person is likely to promote respect for that person’s right to self-determination in the provision of those personal assistance services, inasmuch as it appears reasonable to expect that a person within the same age range as the disabled person will fit more easily in that person’s personal, social and university circle.
Thus, the Court concludes that, subject to verifications which it is for the referring court to carry out, having regard to all the facts of the main proceedings, the difference of treatment on grounds of age in the case at hand is the result of a measure that is necessary for the protection of the rights and freedoms of others, within the meaning of Article 2(5) of Directive 2000/78, and could, consequently, be justified having regard to that provision.
(
1
)	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).
(
2
)	Approved on behalf of the European Union by Council Decision 2010/48/EC of 26 November 2009 (OJ 2010 L 23, p. 35; ‘the UN Convention’).
(
3
)	Pursuant to that provision, the directive is to be 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.
(
4
)	Namely Paragraph 8(1) of the Sozialgesetzbuch, Neuntes Buch (IX) (Book IX of the Social Security Code), of 23 December 2016 (BGBl. 2016 I, p. 3234; ‘the SGB IX’), read in conjunction with Paragraph 33 of the Sozialgesetzbuch, Erstes Buch (I) (Book I of the Social Security Code), of 11 December 1975 (BGBl. 1975 I, p. 3015; ‘the SGB I’), which provides that, when deciding on personal assistance services and in the performance of those services intended to promote the disabled person’s participation in the community, the legitimate wishes of the persons entitled to receive those services are to be respected, in so far as those wishes are reasonable and by taking account of those persons’ personal circumstances, age, sex, family and religious and philosophical needs.