Provisional text
OPINION OF ADVOCATE GENERAL
RANTOS
delivered on 3 April 2025 (1)
Case C‑5/24 [Pauni] (i)
P.M.
v
S. Snc
(Request for a preliminary ruling from the Tribunale ordinario di Ravenna (District Court, Ravenna, Italy))
( Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Article 1 – Article 2(1) and (2)(b) – Prohibition of any discrimination based on disability – Indirect discrimination – Collective agreement which provides that employers may dismiss a worker where the length of sick leave exceeds 180 days per year, to which leave of 120 days in any one year may be added at the worker’s request – Provision applicable irrespective of whether or not the worker has a disability – Dismissal of a worker with a disability on account of excessive absence because of illness – Difference of treatment on grounds of disability – Justification – Availability of a worker to carry out his or her professional activity – Appropriateness – Proportionality – Article 5 – Reasonable accommodation for people with disabilities )
I.      Introduction
1.        Ms P.M., who worked for the company S. Snc, was dismissed by her employer on the ground that her absence exceeded the maximum job retention period in the event of illness laid down by the collective agreement applicable to her sector of activity (‘the collective agreement at issue’), that is to say, in the present case, a period of 180 days per year, to which a period not exceeding 120 days in any one year may be added at the worker’s request.
2.        Recognised as having a disability within the meaning of national law, Ms P.M. challenged her dismissal before the Tribunale ordinario di Ravenna (District Court, Ravenna, Italy), claiming that it constituted discrimination in so far as the maximum job retention period was applied to her without taking account of her disability.
3.        In that context, that court asks, in particular, whether the relevant provision of the collective agreement at issue, which does not draw a distinction on the basis of whether or not workers have a disability as regards the job retention period in the event of illness, constitutes indirect discrimination, within the meaning of Directive 2000/78/EC, (2) in so far as, according to the Court’s case-law, compared with a worker without a disability, a worker with a disability has an additional risk of being absent by reason of an illness connected with his or her disability. In that regard, the referring court refers in particular to the judgments in HK Danmark (3) and Ruiz Conejero. (4) If that provision is liable to place disabled workers at a disadvantage, the referring court asks whether it is objectively justified by a legitimate aim and whether the means of achieving that aim are appropriate and necessary.
4.        As the referring court points out, the practical significance of the present case is considerable since, while all national collective agreements provide for a job retention period, none lays down specific rules in relation to workers with disabilities. All those collective agreements could therefore be discriminatory and liable to a maximum penalty of nullity of the dismissal of a worker with a disability after the expiry of that period and the obligation on the part of his or her employer to make good the damage suffered.
II.    Legal context
A.      International law
5.        The United Nations Convention on the Rights of Persons with Disabilities, concluded in New York on 13 December 2006 (5) and approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009 (6) (‘the UN Convention’), states, in recital (e):
‘Recognising that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’.
6.        Article 1 of that convention, entitled ‘Purpose’, provides:
‘The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.’
7.        Article 2 of that convention, entitled ‘Definitions’, provides:
‘For the purposes of the present Convention:
…
“Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;
“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;
…’
8.        Article 27 of that convention, entitled ‘Work and Employment’, reads as follows in paragraph 1 thereof:
‘States Parties recognise the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realisation of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia:
…
(h)      promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures;
(i)      ensure that reasonable accommodation is provided to persons with disabilities in the workplace;
…
(k)      promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.’
B.      European Union law
9.        According to recitals 12, 15, 17, 20 and 21 of Directive 2000/78:
‘(12)      … any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community. …
…
(15)      The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice. Such rules may provide, in particular, for indirect discrimination to be established by any means including on the basis of statistical evidence.
…
(17)      This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.
…
(20)      Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.
(21)      To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.’
10.      Article 1 of that directive, entitled ‘Purpose’, states:
‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’
11.      Article 2 of that directive, entitled ‘Concept of discrimination’, provides, in paragraphs 1 and 2 thereof:
‘1.      For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2.      For the purposes of paragraph 1:
(a)      direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
(b)      indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:
(i)      that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or
(ii)      as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.’
12.      Article 3 of that directive, entitled ‘Scope’, provides in paragraph 1(c) thereof:
‘Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:
…
(c)      employment and working conditions, including dismissals and pay.’
13.      Article 5 of Directive 2000/78, entitled ‘Reasonable accommodation for disabled persons’, is worded as follows:
‘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.’
C.      Italian law
14.      According to the first and second paragraphs of Article 2110 of the codice civile (Civil Code):
‘In the event of an accident, illness, pregnancy or recent childbirth, where the law … does not lay down equivalent forms of protection or assistance, remuneration or an allowance is payable to the employee to the extent and for the period determined by special laws …, practice or equity.
In the cases referred to in the preceding paragraph, the employer has the right to terminate the contract in accordance with Article 2118, on expiry of the period established by law, … practice or equity.’
15.      Article 173 of the contratto collettivo nazionale di lavoro (CCNL) dipendenti aziende settore turismo Confcommercio (national collective agreement for employees of undertakings in the tourism sector of the General Confederation of Undertakings in the Trade, Tourism and Services Sector) of 20 February 2010 (‘the CCNL’), entitled ‘Retention of the post’, states:
‘1.      In case of proven illness or accident, members of staff who are not in a probationary or notice period shall be entitled to remain in post for a period of 180 days per year, namely the period between 1 January and 31 December.
2.      If an employee falls ill or is injured more than once in a year, the corresponding periods of absence may be accrued to reach the maximum job retention period referred to in the preceding paragraph.
3.      In the case of members of staff hired on a fixed-term basis, job retention is in any event limited to the duration of the season or appointment.
4.      If, on expiry of the period during which job retention is mandatory, the member of staff is unable to return to work due to persistence of the illness, the contract of employment is deemed to have been terminated, with entitlement to full termination pay and all other benefits due, apart from compensation in lieu of notice.’
16.      Article 174 of the CCNL, entitled ‘Unpaid leave, provides:
‘1.      In the case of workers who are ill and injured at work, the job retention period, fixed at a maximum of 180 days by Article 173 of this Agreement, shall be extended, at the worker’s request, for an additional period not exceeding 120 days, provided that the following conditions are met:
(a)      the illness in question is not a chronic and/or mental illness, without prejudice to the provisions of Article 175 of this Agreement (oncological illnesses);
(b)      the worker produces medical or hospital admission certificates on a regular basis;
(c)      the worker’s request in respect of the period exceeding 180 days is for unpaid “general leave” and no rights whatsoever are acquired under the contract;
(d)      the worker has not already taken that leave.
2.      A worker who intends to take the period of leave referred to in the preceding paragraph must submit a request to the undertaking by registered letter with acknowledgement of receipt, before the expiry of the 180th day of absence because of illness or accident and sign an express declaration of acceptance of the aforementioned conditions.
3.      On expiry of the period of leave, the employer may dismiss the worker in accordance with Article 173; that period shall be included for the purposes of calculating length of service in the event of continuation of the employment relationship.’
17.      Article 175 of the CCNL, entitled ‘Oncological illnesses’, is worded as follows:
‘1.      With respect to patients suffering from serious oncological illnesses certified by a medical committee set up by the local health agency with territorial competence, the period of general leave referred to in Article 174 shall be extended even if it exceeds 120 days.
2.      Before the expiry of the 120th day of general leave, the persons concerned must send the undertaking a further medical certificate attesting to their state of health and their unfitness to return to work and setting out the days of extension granted by the doctor providing the treatment or by the hospital.’
III. The dispute in the main proceedings, the questions referred and the procedure before the Court
18.      On 1 September 2021, Ms P.M. was hired as a waitress on a fixed-term contract by S., which employs, on average, nine persons, including seven employees, and carries out catering activities using temporary workers. On 1 January 2022, that contract was converted into a contract for an indefinite period.
19.      Ms P.M. was on uninterrupted sick leave from 18 June to 19 December 2022. Her first medical certificate, drawn up in Thai and translated into Italian, referred to an absence from work for the period between 18 June and 8 August 2022, because of a subarachnoid haemorrhage resulting from a ruptured aneurysm, and provided further clinical details. That medical certificate was sent to S.
Ms P.M.’s absence because of illness continued without interruption until 8 January 2023, according to the medical certificates issued by her Italian general practitioner, which, in the versions available to her employer, did not state the medical reason for her absence.
20.      On 19 December 2022, Ms P.M. was dismissed by her employer because the maximum job retention period provided for in Article 173 of the CCNL, which is 180 days per year (‘the provision at issue’), in this instance over the period between 1 January and 31 December 2022, had been exceeded.
21.      On 4 November 2022, Ms P.M. applied for administrative recognition of her invalidity. She attended a medical examination on 24 January 2023, that is to say after the date of her dismissal. On 17 February 2023, Ms P.M. obtained recognition of her civil invalidity, at a level of 35%, with the diagnosis of ‘result of endovascular treatment’, which included further clinical details, and she was recognised as having a disability, within the meaning of Article 3(1) of Legge n.° 104 – Legge-quadro per l’assistenza, l’integrazione sociale e i diritti delle persone handicappate (Law No 104 – Framework Law for Assistance, social integration and rights of persons with disabilities) of 5 February 1992, (7) in the version in force at that time. S. was not aware of that administrative procedure, which was concluded several months after Ms P.M.’s dismissal.
22.      Ms P.M.’s illness continued after her dismissal and the aforementioned date of 8 January 2023, referred to by her Italian general practitioner, as is apparent from the medical certificates which refer, including for the months of March and April 2023, to other surgical operations and hospitalisations which she underwent because of her vascular disorders. Moreover, the forensic report drawn up by one of the doctors appointed by Ms P.M. stated that, even at the time of the medical assessment in August 2023, she was ‘complaining of asthenia with easy fatigability, mental confusion, dropping objects from her hands due to lack of strength caused by early exhaustion’.
23.      On 16 October 2023, Ms P.M. brought an action before the Tribunale ordinario di Ravenna (District Court, Ravenna), the referring court, seeking a declaration that her dismissal was discriminatory on the ground that the provision at issue, which does not draw a distinction on the basis of whether or not the worker has a disability, had been applied to her without taking her disability into account. She sought to be reinstated in her post, with the possibility of opting for an alternative of payment of 15 months’ salary, compensation corresponding to the unpaid monthly salary payments from the date of her dismissal until the judgment, payment of social security contributions not paid during that period, compensation for non-material damage resulting from the discrimination suffered in the amount of EUR 10 000 and reimbursement of her legal costs. The employer did not enter an appearance in court and lodged no pleading.
24.      The referring court explains that, under Italian law, when a worker is ill, job retention is provided for during a ‘periodo di comporto’ (protected period), which is subject to a maximum duration. A worker may not be dismissed by reason of his or her absence because of illness before the expiry of that period, the length of which is determined by collective bargaining. The various Italian collective agreements governing each sector set out their own time limits and methods of calculation. After the expiry of the protected period, an employer may at its sole discretion, and without further cause, dismiss a sick worker who has exceeded that period.
25.      According to that court, it is apparent from the case-law of the Corte suprema di cassazione (Supreme Court of Cassation, Italy) that the time limit on the right to retain the post takes account of two opposing interests, namely, on the one hand, the interest of the worker who is ill in remaining in employment with a view to his or her recovery or reinstatement and, on the other hand, the interest of the employer, in the light of its financial situation and organisation and the need, arising at a particular time, to be able to terminate an employment contract which can no longer be performed in a way which is profitable to the employer.
26.      In the present case, the provision at issue lays down a period of paid sick leave with a right to retain the post of 180 days between 1 January and 31 December each year. Over that period of 180 days, the Istituto Nazionale della Previdenza Sociale (National Social Security Institute, Italy) largely bears the cost of the sick pay, while the employer pays a sum equal to approximately two months’ salary without receiving anything in return. That body pays no further benefits after the 180th day of illness in a single calendar year. Moreover, Article 174 of the CCNL affords the worker, at his or her request, the possibility of remaining in employment notwithstanding absences of 120 additional days, without pay, because of ‘general’ illness (‘the supplementary provision’). However, in the case of oncological illnesses, there is no limit to the length of that additional absence giving rise to the right to retain the post. With respect to dismissal during the protected period, the maximum possible penalty under Italian law is the nullity of the dismissal with the right to reinstatement, which the worker may waive in return for payment of a sum equivalent to 15 months’ salary, as well as compensation for the loss suffered, which, in the case of discrimination, covers all the months of unpaid salary from the date of termination of the employment contract until re-employment.
27.      The referring court notes that, in the judgments in HK Danmark and Ruiz Conejero, the Court held that, compared with a worker without a disability, a worker with a disability has the additional risk of being absent by reason of an illness connected with his or her disability and consequently runs a greater risk of reaching the time limits laid down by a provision of national law relating to absences from work. The Court added that such a provision is liable to place disabled workers at a disadvantage and so to bring about a difference of treatment indirectly based on disability within the meaning of Article 2(2)(b) of Directive 2000/78. The referring court observes that, while the judgment in HK Danmark concerned the length of the notice period if the worker with a disability had been absent because of illness for 120 days over the previous twelve months and not the employer’s right to end the employment relationship, the case giving rise to the judgment in Ruiz Conejero concerned a provision of national law intended to combat absenteeism in the workplace and, therefore, short-term and sporadic, albeit legitimate, absences. That case therefore concerned the right to proceed with dismissal on the grounds of intermittent absences from work, even if justified, including absences because of illness, which amount to
20% of working hours in two consecutive months, provided that the total absences in the previous 12 months amount to
5% of working hours or
25% of working hours in four non-continuous months within a 12-month period, which is
approximately 40 days over a period of one year, including intermittent absences of eight days in the last two months.
28.      However, in the present case, it is necessary to determine whether, with respect to a long period of continuation of the employment relationship (that is to say 180 days) or a very long period, including the additional unpaid period (that is to say 300 days), which is the same for all workers, it is possible to find indirect discrimination in so far as the CCNL does not provide for expressly different treatment for persons with disabilities. The referring court points out that, in view of the length of the protected period, it was clearly intended from the outset to protect workers inter alia against absences due to disability which are not exclusively related to a mere ‘ordinary’ illness, such as flu, for which it takes an average of seven days to make a full recovery. That court considers that it is extremely difficult, in practice, for a person ‘without a disability’ to approach the maximum periods for continuation of the employment relationship laid down in relation to the protected period, in particular the 180-day period, which covers half the working year, every year, for the entire professional career. In those circumstances, there is real doubt as to whether it is reasonable to speak of discrimination as regards rules which already appear to be structured with a view primarily to protecting persons with disabilities.
29.      According to that court, in the light of the very serious consequences which would result from classifying the protected period as ‘indirect discrimination’, meaning that all Italian collective agreements would be discriminatory and that all dismissals of workers with disabilities would be null and void, with very significant financial consequences, in particular for small undertakings such as S., it is necessary to refer that question of interpretation to the Court of Justice. The referring court states that, according to the case-law of the Corte suprema di cassazione (Supreme Court of Cassation), the application to a worker of the ordinary protected period constitutes indirect discrimination since, compared with a worker without a disability, a worker with a disability has the additional risk of being absent by reason of an illness connected with his or her disability.
30.      In the event that the protected period entails indirect discrimination in the abstract, it should be ascertained whether the interests of the person with a disability are, in any event, already sufficiently protected by the relevant legislation, in the light of the other relevant interests. In that regard, Directive 2000/78 provides that a criterion or practice which is objectively justified by a legitimate aim is lawful where the means of achieving that aim are appropriate and necessary. According to the referring court, the objective of compromise pursued by the Italian legislation, referred to in point 25 of the present Opinion, may be regarded as legitimate in so far as that legislation protects workers against the risk of illness by providing for a long period of job retention, while allowing the employer freely to terminate an employment relationship which is not profitable for the employer once that period has elapsed. As far as the appropriateness of the means employed is concerned, that legislation on illness appears above all to protect persons with a disability, since it guarantees a number of periods of sick leave which, in general, can be accrued only by a person with a disability, including over several years. It is only when, in one year, the period of non-performance of the employment contract is longer than the period of its performance that the employer’s economic and organisational interests can prevail. Moreover, although the supplementary provision provides for an additional, unpaid, 120-day period of continuation of the contractual relationship, Ms P.M. did not request from her employer the benefit of that period, though she had the opportunity to do so.
31.      As regards the necessity of the means employed, the national legislation provides for the possibility of dismissal where the objective ineffectiveness of the contractual relationship becomes apparent, that is to say where the duration of the sick leave exceeds the time spent working in a given year. Moreover, that legislation stems also from the need to protect the private life of the person with a disability, who is required to disclose to an employer neither his or her disabled status, unless he or she is employed from the outset as a person with a disability (which is not the situation in the present the case), nor the reasons, namely the diagnosis, underlying his or her absences because of illness. In fact, under Article 5 of legge n. 300 – Norme sulla tutela della libertà e dignità dei lavoratori, della libertà sindacale e dell’attività sindacale, nei luoghi di lavoro e norme sul collocamento (Law No 300 relating to rules on the protection of the freedom and dignity of workers, freedom of association and trade union activity in the workplace, as well as regulations on employment) of 20 May 1970, (8) entitled ‘Health checks’, checks by the employer on a worker’s fitness and infirmity because of an illness or accident are prohibited, while checks on absences resulting from infirmity may be carried out only by the inspection services of the competent social security institutions, which are required to carry them out when the employer so requests. Furthermore, according to the Italian legislation, the employer does not receive medical certificates setting out a diagnosis, that is to say indicating the cause of the illness, since those certificates can state only a prognosis.
32.      In summary, where the maximum period laid down by the provision at issue is exceeded, the national legislation allows the employer discretion as to whether to dismiss a worker and, only where the worker does not request the application of the supplementary provision, do the employer’s economic and organisational interests prevail, permitting it to proceed with dismissal subject to the single and simple condition that the maximum period has been exceeded. Moreover, that legislation also protects persons with disabilities outside the employment relationship and, more generally, in the labour market, since undertakings employing more than 14 employees must reserve a variable quota of posts for persons with disabilities. (9)
33.      In those circumstances, the Tribunale ordinario di Ravenna (District Court, Ravenna) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Does Directive 2000/78 preclude national legislation which, by providing for the right to retain the post in the event of illness for 180 paid days, in the period from 1 January to 31 December of each year, in addition to a further 120 days of unpaid leave (which can be taken only once) at the worker’s request, does not provide for different rules between workers who can be classified as disabled and workers who cannot?
(2)      If the national legislation described in the grounds were to be regarded in the abstract as constituting indirect discrimination, is the legislation itself nevertheless objectively justified by a legitimate aim and are the means of achieving that aim appropriate and necessary?
(3)      Can the provision of unpaid leave, at the worker’s request, following the end of the [180] days of sick leave, which is capable of preventing dismissal until its expiry amount to suitable and sufficient reasonable accommodation for avoiding discrimination?
(4)      Can an accommodation consisting of the employer’s duty to grant – on the expiry of the period of 180 days of paid sick leave – a further period fully paid by it, without obtaining consideration for work, be regarded as reasonable?
(5)      For the purposes of assessing the discriminatory conduct of the employer, can (for the purposes of establishing the lawfulness or otherwise of the dismissal) the fact that even a [possible] further period of stability in the relationship paid for by the employer would not have enabled the disabled person to return to work, given his or her continuing illness, be taken into account?’
34.      By order of the President of the Court of Justice of 9 April 2024, the application for a ruling to be given in this case under the accelerated procedure provided for in Article 105(1) of the Court’s Rules of Procedure was dismissed.
35.      Written observations were submitted by the Italian, Greek and Netherlands Governments as well as by the European Commission.
36.      By letter of 20 November 2024, the Court of Justice sent a request for clarification to the referring court, pursuant to Article 101(1) of its Rules of Procedure, relating in particular to the case-law of the Corte suprema di cassazione (Supreme Court of Cassation) referred to in the order for reference, to which it replied by letter lodged at the Registry of the Court of Justice on 26 November 2024.
37.      In accordance with the Court’s request, the present Opinion will focus on the examination of the first two questions referred for a preliminary ruling.
IV.    Analysis
38.      By its first two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 1 and Article 2(1) and (2)(b) of Directive 2000/78 must be interpreted as precluding provisions of a national collective agreement which provide that a worker may be dismissed where his or her absence because of illness has exceeded a paid period of 180 days per year, to which a period not exceeding 120 days in any one year may be added at the worker’s request, and which do not draw a distinction on the basis of whether or not the worker has a disability within the meaning of that directive.
39.      As a preliminary point, I would recall that it is clear from the title of, and preamble to, Directive 2000/78, as well as from its content and purpose, that that directive is intended to establish a general framework for ensuring that everyone benefits from equal treatment ‘in matters of employment and occupation’ by providing effective protection against discrimination based on any of the grounds listed in Article 1 thereof, which include disability. (10) Under Article 2(1) of that directive, the ‘principle of equal treatment’ means that there is to be ‘no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1’. Moreover, pursuant to Article 3(1)(c), that directive is to apply to all persons, as regards both the public and private sectors, including public bodies, in relation to, inter alia, conditions for dismissals.
40.      According to the Court’s case-law, where they adopt measures which come within the scope of that directive, which gives specific expression, in the domain of employment and occupation, to the principle of non-discrimination on grounds of disability, now enshrined in Article 21 of the Charter of Fundamental Rights of the European Union, the Member States and the social partners must respect Directive 2000/78. (11)
41.      In the present case, the main proceedings concern the dismissal of a worker after the expiry of the job retention period provided for by the provision at issue, that is to say a paid period of 180 days per year, consecutive or otherwise. I would point out from the outset that, as the referring court states, the supplementary provision provides that the job retention period may be extended, at the worker’s request, for a period not exceeding 120 days in any one year. However, it is clear from the order for reference that Ms P.M. did not request the application of the latter provision, although she had the opportunity to do so. In those circumstances, the remainder of my analysis will focus on the 180-day period as provided for in Article 173 of the CCNL, while referring to that 120-day period in the context of the overall examination of the compatibility of the collective agreement at issue with EU law.
42.      The referring court states that Ms P.M. was recognised as having a disability, within the meaning of national law, subsequent to her dismissal. However, the fact that a worker is recognised as having a disability within the meaning of national law does not necessarily indicate that he or she has a disability within the meaning of Directive 2000/78. (12) As regards the concept of ‘disability’ within the meaning of that directive, it has to be understood as referring to a limitation that results in particular from long-term 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. (13) In the present case, it is apparent from the order for reference that the referring court, which has sole jurisdiction to assess the facts, considers that Ms P.M. is a person with a disability, within the meaning of that directive.
43.      By its first two questions, that court seeks to ascertain whether the provision at issue constitutes discrimination within the meaning of Directive 2000/78. As to whether there is direct discrimination, Article 2(2)(a) of that directive provides that such discrimination occurs where one person is treated less favourably than another person in a comparable situation on any of the grounds listed in Article 1 of that directive. In the present case, it is apparent from the order for reference that the provision at issue applies in the same way to all workers, whether or not they have a disability, as does the supplementary provision. In that context, it cannot be held that those provisions establish a difference in treatment directly based on disability, for the purposes of the combined provisions of Article 1 and Article 2(2)(a) of that directive, where they are based on a criterion that is not inextricably linked to disability. (14)
44.      As regards the existence of indirect discrimination, Article 2(2)(b) of Directive 2000/78 provides that, except in the cases referred to in points (i) and (ii), indirect discrimination is to be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular disability at a particular disadvantage compared with other persons. That provision provides for a two-stage examination. The purpose of the first stage is to ascertain whether the provision of national law in question results in unfavourable treatment on grounds of disability. If so, that first stage is not sufficient to establish the existence of indirect discrimination against persons with disabilities. According to the case-law of the Court, it should be noted that unfavourable treatment on grounds of disability does not run counter to the protection provided for by Directive 2000/78 unless it constitutes discrimination within the meaning of Article 2(1) of that directive. A worker with a disability covered by that directive must be protected against all ‘discrimination’ in relation to a worker not so covered. (15) Therefore, the second stage is to determine whether the conditions referred to in point (i) or point (ii) of Article 2(2)(b) of that directive are satisfied. If the answer is in the affirmative, even if persons with disabilities are at a disadvantage, the rule which establishes that disadvantage does not constitute indirect discrimination within the meaning of Directive 2000/78.
45.      According to the Court’s case-law, taking account of days of absence because of illness linked to disability in the calculation of days of absence because of illness amounts to assimilating illness linked with disability to the general concept of ‘illness’, although the concepts of ‘disability’ and ‘illness’ cannot simply be treated as being the same. In that respect, a worker with a disability is, in principle, more exposed to the risk of having a provision laying down a limit on the length of absence from work applied to him or her than a worker without a disability. Compared with a worker without a disability, a worker with a disability has the additional risk of being absent by reason of an illness connected with his or her disability. He or she therefore runs a greater risk of accumulating days of absence because of illness, and consequently of reaching the limits laid down by that provision. Moreover, according to the Court’s case-law, it is thus apparent that the rule in that provision is liable to place disabled workers at a disadvantage and so to bring about a difference of treatment indirectly based on disability within the meaning of Article 2(2)(b) of that directive. (16)
46.      Consequently, in the present case, as regards the first stage of the examination of the provision at issue and of the supplementary provision, (17) which concern the number of days of absence per year, it is important to note that they do not establish a specific scheme for workers with disabilities. Accordingly, they introduce unfavourable treatment on grounds of disability, for the purpose of that directive. However, as I have stated in point 44 of the present Opinion, that finding alone does not make it possible to establish the existence of indirect discrimination within the meaning of that directive. If it did, it would be necessary to hold that not only those provisions, but also all the provisions of the Member States in the field of social security, where they did not draw a distinction between persons with a disability and those without, infringe, by that fact alone, the principle of equal treatment laid down by EU law.
47.      Since the present Opinion focuses on the first two questions referred, which relate, in essence, to Article 2(2)(b)(i) of Directive 2000/78, I shall examine, as a first step, the conditions laid down in that provision which are applicable to a difference of treatment on grounds of disability, even though Article 2(2)(b)(ii) of that directive refers specifically to disability. (18) It follows from Article 2(2)(b)(i) that, in a situation where persons having, inter alia, a particular disability are put at a particular disadvantage compared with other persons, discrimination does not occur where the national legislation is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. It must therefore be ascertained whether the provision at issue is objectively justified by a legitimate aim, whether the means relied on to achieve that aim are appropriate and whether they do not go beyond what is necessary to achieve the aim pursued by the social partners which concluded the collective agreement at issue. (19)
48.      In that regard, it is clear from the Court’s case-law that Member States enjoy a broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it. (20) Accordingly, inter alia, the Court held in paragraph 44 of the judgment in Ruiz Conejero that combating absenteeism at work may be regarded as a legitimate aim, within the meaning of Article 2(2)(b)(i) of Directive 2000/78, since it concerns a measure of employment policy. The case which gave rise to that judgment concerned short-term intermittent periods of sick leave. Similarly, according to the Court, a measure taken to promote the flexibility of the labour market may be regarded as a measure of employment policy(21)
49.      So far as concerns the present case, I note that, according to recital 17 of Directive 2000/78, the directive does not require the maintenance in employment of a person who is not available to perform the essential functions of the post concerned, without prejudice to the obligation to provide reasonable accommodation for people with disabilities. Accordingly, I consider that, in the context of employment policy, and with regard to periods of long-term sick leave, ensuring the availability of workers to carry out their professional activity constitutes a legitimate aim of social policy for the purposes of Article 2(2)(b)(i) of that directive. That directive does not have the purpose of prolonging an employment relationship by keeping in employment persons who are unfit for work.
50.      It is nevertheless important to ascertain whether the means relied on by the collective agreement at issue to achieve that aim are appropriate and whether they do not go beyond what is necessary to achieve it. In that regard, the referring court pointed out that, according to the case-law of the Corte suprema di cassazione (Supreme Court of Cassation), the time limit on the right to retain the post takes account of the interest of, on the one hand, the worker who is ill in remaining in employment with a view to his or her recovery or cure and, on the other hand, the employer, having regard to its financial situation, its organisation and the need to be able to terminate an employment contract which can no longer be performed in a manner which is profitable for it. (22) Accordingly, the provision at issue allows a worker to be absent for illness-related reasons for approximately half the year, each year, without loss of pay or employment. That worker may also request the application of the supplementary provision, which provides for unpaid sick leave. In return, the employer has the option of terminating that contractual relationship if the maximum period is exceeded.
51.      For the purposes of that examination, it should be pointed out that, according to the referring court, in the light of the length of the protected period, it was intended from the outset to protect workers inter alia against absences due to disability which are not exclusively related to a mere ‘ordinary’ illness. To that effect, the Italian government claims in its written observations that the length of that period is justified by the need to protect disabled persons, given that, in the absence of a disability and with the exception of oncological illnesses, which are subject to a separate scheme, it is very rare that an illness persists for such a long time. For the sake of simplicity, Italian legislation adopts a longer period, based on the logical, rather than legal, principle that ‘in the greater is always included the lesser’.
52.      Moreover, it is necessary to take account of all other relevant factors, including the direct and indirect costs that must be borne by companies as a result of absenteeism from the workplace. (23) It is also necessary to examine whether the provision at issue and the supplementary provision, by providing the right to dismiss workers absent because of illness for a particular number of days, have the effect, for employers, of encouraging recruitment and maintenance in employment. (24)
53.      Having regard to the broad discretion enjoyed by the Member States not only in choosing to pursue a particular aim in the field of social and employment policy but also in defining measures to implement it, I am of the view that a measure such as the provision at issue does not appear inappropriate for achieving the aim referred to in point 49 of the present Opinion. Member States or the social partners are, in my view, entitled to require that a worker be available for at least six months each year to carry out the tasks set out in his or her employment contract.
54.      The Court has stated that, in order to determine whether the measures provided for by the provision at issue go beyond what is necessary to achieve the aim pursued, that provision must be placed in its context and the adverse effects it is liable to cause for the persons concerned must be considered. For that purpose, it is for the referring court to examine whether the Italian social partners, in pursuing the legitimate aim of, first, ensuring the availability of workers to carry out their professional activity and, secondly, striking a reasonable balance between the opposing interests of employees and employers with respect to absences because of illness, omitted to take account of relevant factors relating in particular to workers with disabilities. In this respect, 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 state of health requires, should not be overlooked. (25)
55.      In that context, as stated in recital 15 of Directive 2000/78, indirect discrimination may be established by any means including on the basis of statistical evidence. Accordingly, as the Commission pointed out in its written observations, in order to determine the extent to which workers with disabilities suffer harm as a result of the application of the provision at issue and the supplementary provision, the referring court must ascertain, on the basis of the factual evidence before it, how many of those workers have been on sick leave for a period exceeding 180 days in a year or 300 days in any one year. Following that factual examination, which it is for that court to carry out, if it is apparent that a considerable number of workers with disabilities have exceeded those protected periods, then those periods are likely to have a significant negative impact on workers with disabilities and may not be proportionate to the situation in which they find themselves. It is for the national court to assess to what extent the statistical evidence adduced before it is valid and whether it can be taken into account, that is to say, whether, for example, it illustrates purely fortuitous or short-term phenomena, and whether it is sufficiently significant. (26)
56.      Among the factors to be taken into account is also the existence, in the Italian legal system, of provisions aimed at specifically protecting persons with disabilities. Such provisions are capable of preventing or compensating for the disadvantages caused by a disability, including the possibility of suffering illnesses linked to the disability. (27)
57.      In the light of those factors, it is for the referring court to assess, with respect to persons with disabilities, whether the measures provided for by the provision at issue and the supplementary provision go beyond what is necessary to attain the aim pursued.
58.      Although the first two questions referred for a preliminary ruling do not concern reasonable accommodation, referred to in Article 2(2)(b)(ii) of Directive 2000/78, I should nevertheless like, as a second step and on an additional basis, to make a few observations in that regard. It is clear from the Court’s case-law that the provisions of the UN Convention may be relied on for the purposes of interpreting those of that directive, with the result that the latter must, as far as possible, be interpreted in a manner that is consistent with that convention. Under Article 2 of that convention, the concept of ‘discrimination on the basis of disability’ covers any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. That concept includes all forms of discrimination, including denial of reasonable accommodation. As regards such accommodation, it is clear from the wording of Article 5 of that directive, read in the light of recitals 20 and 21 thereof, that the employer is required to take appropriate measures, that is to say effective and practical measures, taking each individual situation into account, 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. (28)
59.      In the present case, the referring court states that S. had knowledge of Ms P.M’s first medical certificate, which set out the medical reason for her absence for the period from 18 June to 8 August 2022. By contrast, the medical certificates issued by her Italian general practitioner for the period up to 8 January 2023 did not specify the medical reason for her absence. As that court points out, under the national legislation, an employer is not aware of the reason for a worker’s absence, since it does not receive medical certificates which contain a diagnosis, that is to say which state the cause of the illness, but only a prognosis. Moreover, that company was not informed of Ms P.M.’s request to have her disability recognised through administrative channels. Furthermore, as that court points out, that legislation expressly prohibits an employer from carrying out its own medical checks on a worker. (29)
60.      In those circumstances, it is for the referring court to examine whether, in the light of national law and the circumstances specific to the dispute in the main proceedings, it is for the worker to inform his or her employer of his or her disability (30) or whether the employer is under an obligation, before dismissing a worker for exceeding the protected period, to ask that worker whether his or her absences are linked to the existence of a disability. If the employer is required to make inquiries, the dismissal of a worker with a disability without the employer having sought to adopt an appropriate measure in the context of ‘reasonable accommodation’, within the meaning of Article 5 of Directive 2000/78, does not comply with the conditions laid down in Article 2(2)(b)(ii) of that directive.
61.      In the light of all the foregoing, I am of the opinion that Article 1 and Article 2(1) and (2)(b) of Directive 2000/78 must be interpreted as meaning that they do not preclude the provisions of a national collective agreement which provides that a worker may be dismissed where his or her absence because of illness has exceeded a paid period of 180 days per year, to which a period not exceeding 120 days in any one year may be added at the worker’s request, and which does not draw a distinction on the basis of whether or not that worker has a disability, within the meaning of that directive, unless those
provisions, while pursuing the legitimate aim of ensuring the availability of workers to carry out their professional activity, go beyond what is necessary to achieve that aim.
V.      Conclusion
62.      In the light of the foregoing, I propose that the Court answer the first and second questions referred by the Tribunale ordinario di Ravenna (District Court, Ravenna, Italy) as follows:
Article 1 and Article 2(1) and (2)(b) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation
must be interpreted as meaning that
they do not preclude the provisions of a national collective agreement which provides that a worker may be dismissed where his or her absence because of illness has exceeded a paid period of 180 days per year, to which a period not exceeding 120 days in any one year may be added at the worker’s request, and which does not draw a distinction on the basis of whether or not that worker has a disability, within the meaning of that directive, unless those provisions, while pursuing the legitimate aim of ensuring the availability of workers to carry out their professional activity, go beyond what is necessary to achieve that aim.
1      Original language: French.
i      The name of this case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
2      Council Directive of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).
3      Judgment of 11 April 2013, HK Danmark (C‑335/11 and C‑337/11, ‘the judgment in HK Danmark’, EU:C:2013:222).
4      Judgment of 18 January 2018, Ruiz Conejero (C‑270/16, ‘the judgment in Ruiz Conejero’, EU:C:2018:17). See, concerning that judgment, Broderick, A., ‘Ruiz Conejero: (Re-)conceptualizing disability-based discrimination and sickness absence at work’, International Labor Rights Case Law Journal, Brill Nijhoff, Leiden, No 5, 2019, pp. 86 to 91.
5      United Nations Treaty Series, Vol. 2515, p. 3.
6      OJ 2010 L 23, p. 35.
7      Ordinary Supplement to GURI No 39 of 17 February 1992.
8      GURI No 131 of 27 May 1970.
9      The referring court refers in that regard to legge n. 68 – Norme per il diritto al lavoro dei disabili (Law No 68 on the rules relating to the right to work of persons with disabilities) of 12 March 1999 (Ordinary Supplement to GURI No 68 of 23 March 1999).
10      See judgment of 10 February 2022, HR Rail (C‑485/20, EU:C:2022:85, paragraph 26 and the case-law cited).
11      See, by analogy, with regard to discrimination on grounds of age, judgment of 19 July 2017, Abercrombie & Fitch Italia (C‑143/16, EU:C:2017:566, paragraph 17 and the case-law cited). Article 26 of the Charter of Fundamental Rights also provides that the Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.
12      See the judgment in Ruiz Conejero (paragraph 32).
13      See judgment of 18 January 2024, Ca Na Negreta (C‑631/22, EU:C:2024:53, paragraph 34 and the case-law cited).
14      See, to that effect, judgment of 26 January 2021, Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie (C‑16/19, EU:C:2021:64, paragraph 44 and the case-law cited).
15      See the judgment in Ruiz Conejero (paragraph 36 and the case-law cited).
16      See, to that effect, the judgment in Ruiz Conejero (paragraphs 38 and 39 and the case-law cited).
17      The referring court points out that the supplementary provision, in so far as it excludes the possibility of taking additional leave in the event of chronic and psychological illnesses, appears to discriminate against a person with a disability who has such an illness. However, as that court also points out, since Ms P.M did not request the application of that additional period, although she had the opportunity to do so, there is no need to examine that question in the context of the present
Opinion.
18      See, inter alia, the judgment in HK Danmark (paragraphs 75 to 92 and the case-law cited). See, also, Opinion of Advocate General Sharpston in Ruiz Conejero (C‑270/16, EU:C:2017:788, point 33), according to which Article 2(2)(b)(i) of Directive 2000/78 must be read in conjunction with Article 2(2)(b)(ii) thereof, since the second provision can be seen as informing an understanding of the ‘proportionality’ of the first provision and it cannot be said that the second should be applied to disabled persons to the exclusion of the first since, whilst it may be the case that the former will apply to the majority of persons suffering from a disability, it cannot apply to all of them.
19      See, to that effect, judgment of 19 September 2018, Bedi (C‑312/17, EU:C:2018:734, paragraph 58).
20      See judgment of 20 April 2023, BVAEB (Adjustment of retirement pensions) (C‑52/22, EU:C:2023:309, paragraph 55 and the case-law cited).
21      See the judgment in HK Danmark (paragraph 82).
22      See point 25 of the present
Opinion.
23      See, to that effect, the judgment in Ruiz Conejero (paragraph 47). In that regard, the referring court refers to the organisational and training costs associated with the recruitment of fixed-term employees to replace workers absent because of illness.
24      See, to that effect, the judgment in Ruiz Conejero (paragraph 48 and the case-law cited).
25      See, to that effect, judgments in HK Danmark (paragraph 82) and Ruiz Conejero (paragraphs 49 to 51 and the case-law cited).
26      Judgment of 30 June 2022, INSS (Combination of total occupational invalidity pensions) (C‑625/20, EU:C:2022:508, paragraph 41 and the case-law cited).
27      See, to that effect, the judgment in Ruiz Conejero (paragraph 55).
28      Judgment of 18 January 2024, Ca Na Negreta (C‑631/22, EU:C:2024:53, paragraphs 41 to 43 and the case-law cited). As I pointed out in my Opinion in HR Rail (C‑485/20, EU:C:2021:916, point 59), Article 5 of Directive 2000/78, read in the light of recitals 17 and 20 thereof, must be understood as meaning that, as a matter of priority and as far as possible, the employer must accommodate the job which the worker had prior to the onset of the disability. The objective is, using an approach based on the social concept of ‘disability’, to adapt the working environment of the disabled person in order to enable him or her to participate fully and effectively in professional life on an equal basis with other workers.
29      See point 31 of the present
Opinion.
30      I note that, in the present case, Ms P.M. did not request the application of the additional 120-day period provided for by the supplementary provision.