62015CC0395
OPINION OF ADVOCATE GENERAL
BOT
delivered on 26 May 2016 (
1
)
Case C‑395/15
Mohamed Daouidi
v
Bootes Plus SL,
Fondo de Garantía Salarial,
Ministerio Fiscal
(Request for a preliminary ruling from the Juzgado de lo Social no 33 de Barcelona (Social Court No 33, Barcelona, Spain))
‛Reference for a preliminary ruling — Social policy — Directive 2000/78/EC — Articles 1 to 3 — Equal treatment in employment and occupation — Dismissal of a worker temporarily unable to work — Discrimination based on disability — Definition of ‘disability’ — Long-term nature of the limitation’
1.
This request for a preliminary ruling concerns the interpretation of Articles 3, 15, 21(1), 30, 31, 34(1), and 35 of the Charter of Fundamental Rights of the European Union (
2
) and of Articles 1 to 3 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. (
3
)
2.
The request has been made in the context of a dispute between Mr Mohamed Daouidi, on the one hand, and Bootes Plus SL, the Fondo de Garantía Salarial (Wages Guarantee Fund) and the Ministerio Fiscal (Public Prosecutor), on the other, relating to his dismissal during the time when he was unable to work owing to an accident at his workplace.
3.
This Opinion will concentrate on the fifth question referred by the Juzgado de lo Social no 33 of Barcelona (Social Court No 33, Barcelona, Spain), which concerns the interpretation of the concept of ‘disability’ within the meaning of Directive 2000/78.
I – Legal framework
A – International Law
4.
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/EC of 26 November 2009, (
4
) states in recital (e) of its preamble as follows:
‘Recognising that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others.’
5.
Article 1 of the UN Convention provides as follows:
‘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.’
B – EU Law
6.
According to recital 16 of Directive 2000/78:
‘The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability.’
7.
Article 1 of Directive 2000/78 provides as follows:
‘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.’
8.
Article 2(1) and (2) of Directive 2000/78 provides:
‘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.’
9.
Article 3(1)(c) of Directive 2000/78 provides:
‘1.   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.’
C – Spanish law
10.
Article 55 of the Real Decreto Legislativo 1/1995, por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores (Royal Legislative Decree 1/1995 approving the consolidated text of the Law on the Workers’ Statute), of 24 March 1995, (
5
) in the version in force at the time of the facts in the main proceedings, (
6
) entitled ‘Form and effects of dismissal on disciplinary grounds’, provides as follows in paragraphs 3 to 6:
‘3.   Dismissals shall be classified as fair, unfair or null and void.
4.   A dismissal shall be regarded as fair when the failure to perform duties alleged by the employer in the letter of notice is proved. If that is not the case, or if its form does not satisfy the requirements under Article 55(1), the dismissal shall be considered unfair.
5.   Any dismissal on one of the grounds of discrimination prohibited by the Constitution or by law or occurring in breach of the fundamental rights and public freedoms of workers shall be void.
…
6.   Nullity of a dismissal shall entail the immediate reinstatement of the worker, with payment of unpaid wages or salary.’
11.
Article 56(1) of the Workers’ Statute, entitled ‘Unfair dismissal’, provides as follows:
‘Where a dismissal is declared to be unfair, the employer, within five days of notification of the judgment, may choose either to reinstate the worker or to pay compensation equivalent to 33 days’ salary per year of service, periods shorter than a year being calculated pro rata on a monthly basis up to a maximum of 24 monthly payments. The option of compensation shall give rise to termination of the employment contract, which shall be deemed to have been effected on the date of actual cessation of work.’
12.
Article 96(1) of the Ley 36/2011, reguladora de la jurisdicción social (Law 36/2011 governing social jurisdiction) of 10 October 2011 (
7
) states as follows:
‘In proceedings in which the applicant’s allegations give rise to an inference that there are substantiated indicia of discrimination on grounds of sex, sexual orientation or identity, racial or ethnic origin, religion or beliefs, lack of capacity, age, harassment and in any other case of infringement of a fundamental right or public freedom, the defendant shall be required to produce objective, reasonable and adequately proved justification for the measures adopted and for their proportionality.’
13.
Article 108(1) and (2) of Law 36/2011 states:
‘1.   In the operative part of the judgment, the court shall classify the dismissal as fair, unfair or null and void.
It shall be classified as fair when the failure to perform duties alleged by the employer in the letter of notice is proved. If it is not proved, or if the formal requirements under Article 55(1) of [the Workers’ Statute] have not been complied with, the dismissal shall be classified as unfair.
…
2.   Any dismissal on one of the grounds of discrimination prohibited by the Constitution or by law or occurring in breach of the fundamental rights and public freedoms of workers shall be void.
…’
14.
Article 110(1) of that Law states that:
‘If the dismissal is declared unfair, the employer shall be ordered to reinstate the worker on the same conditions as obtained before the dismissal, and to pay the wages for the period between dismissal and the disposal of proceedings challenging that dismissal referred to in Article 56(2) of [the Workers’ Statute] or, if the worker so chooses, to pay him compensation, the amount of which shall be determined in accordance with Article 56(1) of [that Statute] …
…’
15.
Article 113 of that Law provides:
‘If a dismissal is declared null and void, an order shall be made for the immediate reinstatement of the worker and for payment of the wages outstanding. …’
16.
Article 181(2) of Law 36/2011 is worded as follows:
‘In the course of the proceedings, once it is established that there is evidence of infringement of a fundamental right or public freedom, it shall be incumbent upon the defendant to produce objective, reasonable and sufficiently substantiated reasons for the measures adopted and the proportionality thereof.’
II – The dispute in the main proceedings and the questions referred for a preliminary ruling
17.
On 17 April 2014, Mr Daouidi was taken on as a kitchen assistant for 20 hours per week by Bootes Plus, which runs a restaurant situated in the Hotel Vela, Barcelona (Spain).
18.
Mr Daouidi was taken on for a period of three months on a contingent basis, determined by reference to an increase in work. That contract laid down a probationary period of 30 days.
19.
On 1 July 2014, Mr Daouidi and Bootes Plus agreed to convert that contract into a full-time contract for 40 hours per week.
20.
Mr Daoudi’s contract was then extended by nine months and its termination date was set as 16 April 2015. That extension benefited from a favourable report by the kitchen chef, who also approved the conversion of the part-time contract into a full-time contract.
21.
On 3 October 2014 Mr Daouidi suffered an accident at work when he slipped on the kitchen floor and dislocated his left elbow. On the same date, he commenced the procedure for recognition of temporary incapacity for work. His elbow had to be put in plaster, and was still in plaster at the start of the proceedings before the national court six months later.
22.
Two weeks after that accident at work, the kitchen chef telephoned M. Daouidi to ask about his state of health and to express his concern as to how long the situation might continue. Mr Daouidi replied that he could not return to work immediately. Some time later, the kitchen chef told the management of the undertaking ‘that Mr Daouidi had several problems’ and that ‘he was not functioning well’.
23.
On 26 November 2014, while he was still in a situation of being temporarily unable to work, Mr Daouidi received notice of disciplinary dismissal worded as follows:
‘We regret to inform you that we have taken a decision to terminate the employment relationship between you and this undertaking: you are dismissed immediately as from today. The reason for this decision is that you did not meet the expectations of the undertaking or perform at the level the undertaking considers appropriate or suitable for the discharge of your duties in the workplace. The facts set out are subject to the penalty of dismissal in accordance with the [Workers’ Statute].’
24.
On 23 December 2014, Mr Daouidi brought an action before the Juzgado de lo Social no 33 de Barcelona (Social Court No 33, Barcelona), seeking a declaration that his dismissal was null and void. First, he claimed that it infringed his fundamental right to physical integrity as enshrined in Spanish law. Secondly, he claimed that it was discriminatory, in particular within the meaning of Directive 2000/78 and of the judgment of 11 April 2013, HK Danmark (C‑335/11 and C‑337/11, EU:C:2013:222).
25.
In the alternative, Mr Daouidi asked that court to declare his dismissal unfair.
26.
He requested that Bootes Plus be ordered to pay him damages in the amount of EUR 6251 for non-material damage and a further sum of EUR 2841.56 for material damage.
27.
The national court points out that, according to the case-law of the Tribunal Superior de Justicia de Cataluña (Higher Court of Justice of Catalonia, Spain), the Tribunal Supremo (Supreme Court, Spain) and the Tribunal Constitucional (Constitutional Court, Spain), illness and temporary disability resulting from accidents at work do not constitute discriminatory factors, with the result that a dismissal in such a situation cannot be considered void for the purposes of Article 55(5) of the Workers’ Statute.
28.
However, the national court is unsure whether EU law cannot be interpreted as meaning that dismissals on the grounds of work-related accidents infringe the principle of equality, the prohibition of all discrimination, the right to physical integrity and health, the right to receive social security payments and the right to work itself (which includes the right not to be dismissed without ‘just’ cause), which are principles and rights set out in the Charter.
29.
If that were the case, such dismissals would have to be classified as ‘void’, and not simply as ‘unfair’, within the meaning of Article 55(4) of the Workers’ Statute.
30.
In those circumstances, the Juzgado de lo Social no 33 de Barcelona (Social Court No 33, Barcelona) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1.
Must the general prohibition of discrimination affirmed in Article 21(1) of the Charter be interpreted as including, within the ambit of its prohibition and protection, the decision of an employer to dismiss a worker, previously well regarded professionally, merely because of his finding himself in a situation of temporary incapacity for work — of uncertain duration — as a result of an accident at work, when he was receiving health assistance and financial benefits from Social Security?
2.
Must Article 30 of the Charter be interpreted as meaning that the protection that must be afforded a worker who has been the subject of a manifestly arbitrary and groundless dismissal must be the protection provided for in national legislation for every dismissal which infringes a fundamental right?
3.
Would a decision of an employer to dismiss a worker previously well regarded professionally merely because he was subject to temporary incapacity — of uncertain duration — as a result of an accident at work, when he is receiving health assistance and financial benefits from Social Security, come within the ambit of Articles 3, 15, 31, 34(1) and 35(1) of the Charter (or any one or more of them)?
4.
If the three foregoing questions (or any of them) are answered in the affirmative and the decision to dismiss the worker, previously professionally well regarded, merely because he was subject to temporary incapacity — of uncertain duration — as a result of an accident at work, when he is receiving health assistance and financial benefits from Social Security, is to be interpreted as coming within the ambit of one or more articles of the Charter, may those articles be applied by the national court in order to settle a dispute between private individuals, either on the view that — depending on whether a “right” or “principle” is at issue — they enjoy horizontal effect or by virtue of application of the “principle that national law is to be interpreted in conformity with an EU directive”?
5.
If the four foregoing questions are answered in the negative, would the decision of an employer to dismiss a worker, previously well regarded professionally, merely because he was subject to temporary incapacity — of uncertain duration — by reason of an accident at work, be caught by the term “direct discrimination on grounds of disability” as one of the grounds of discrimination envisaged in Articles 1, 2 and 3 of Directive 2000/78?’
III – My analysis
31.
It is evident from the case file that Mr Daouidi is primarily asking the national court to declare his dismissal null and void and that consequently the defendant undertaking in the main proceedings be ordered to reinstate him and to pay him arrears of wages together with damages to compensate him for his non-material and material losses. (
8
) However, Law 36/2011 provides that a dismissal is void only if it is based on ‘one of the grounds for discrimination prohibited by the Constitution or by law or occurring in breach of the fundamental rights and public freedoms of workers’. That is why the Mr Daouidi’s application for a declaration of nullity in regard to his dismissal is based, first of all, on the plea that the dismissal is discriminatory as having been decided on by reason of the fact that he was unable to work for an indeterminate period as a result of the accident at work and, secondly, on the plea of infringement of his fundamental right to physical integrity enshrined in Article 15 of the Spanish Constitution.
32.
The referring court states that, as the case-law of the Tribunal Superior de Justicia de Cataluña (Higher Court of Justice of Catalonia), the Tribunal Supremo (Supreme Court) and the Tribunal Constitucional (Constitutional Court) currently stands, it is doubtful whether Mr Daouidi’s dismissal could be null and void on the basis of national law alone. That is why the national court is seeking an interpretation of several articles of the Charter and of Directive 2000/78.
33.
Article 51(1) of the Charter states that the latter’s provisions are addressed ‘to the Member States only when they are implementing Union law’. Article 6(1) TEU, which confers a binding force on the Charter, and Article 51(2) of the Charter state that the provisions of the Charter are not to extend in any way the powers of the European Union as defined in the Treaties. (
9
)
34.
Where a legal situation does not come within the scope of EU law, the Court has no jurisdiction to rule on it and any Charter provisions relied upon cannot, of themselves, form the basis for such jurisdiction. (
10
)
35.
In those circumstances, it is necessary to establish whether the subject matter of the main proceedings relates to the interpretation or application of a rule of EU law other than those set out in the Charter.
36.
That is why, as the Spanish and French Governments and the European Commission suggest, it is necessary first to consider the fifth question, concerning the interpretation of Directive 2000/78.
37.
In this regard, it should be recalled that the purpose of Directive 2000/78, as stated in Article 1 thereof, is to lay down a general framework for combating discrimination, as regards employment and occupation, on any of the grounds referred to in that article, which include disability.
38.
According to Article 2(2)(a) of that directive, direct discrimination is to 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 grounds of, inter alia, disability.
39.
Pursuant to Article 3(1)(c) of Directive 2000/78, that directive applies, within the limits of the areas of competence conferred on the European Union, to all persons, as regards both the public and private sectors, including public bodies, in relation to, inter alia, the conditions governing dismissal.
40.
Following ratification by the European Union of the UN Convention, the Court has taken the view that the concept of ‘disability’ within the meaning of Directive 2000/78 must be understood as referring to a limitation which 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. (
11
) The Court has thus adopted an evolving and relatively broad definition of the concept of disability. (
12
)
41.
That concept of ‘disability’ must be understood as referring not only to the impossibility of exercising a professional activity, but also to a hindrance to the exercise of such activity. Any other interpretation would be incompatible with the objective of that directive, which is, inter alia, intended to enable a disabled person to access or perform work. (
13
)
42.
Furthermore, it would run counter to the very aim of the directive, which is to implement equal treatment, to define its scope by reference to the origin of the disability. (
14
) According to the Court, Directive 2000/78 does not appear to be intended to cover only disabilities present from birth, or which have their origin in an accident, and to exclude those caused by illness. (
15
)
43.
Therefore, if a curable or incurable 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 if the limitation is a long-term one, such an illness can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78. (
16
) On the other hand, an illness not entailing such a limitation is not covered by the concept of ‘discrimination’ within the meaning of Directive 2000/78. Sickness cannot as such be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits all discrimination. (
17
)
44.
Given the functional way in which the Court has interpreted the concept of ‘disability’, the cause of the disability is irrelevant. I conclude from this that, where a person is unable to work as a result of an injury caused by an accident at work, that person may, if he fulfils the conditions in the definition adopted by the Court, come within the concept of ‘disability’ for the purposes of Directive 2000/78.
45.
It is for the national court to determine whether those conditions are fulfilled in the case of Mr Daouidi.
46.
In this regard, although it appears to be established that Mr Daouidi is limited as a result of his elbow injury and that that limitation, interacting with other obstacles, is impeding his full and effective participation in working life in the same way as other workers, the long-term nature of that limitation (
18
) has yet to be established.
47.
In order to determine whether such a limitation is long-term in nature, the national court will be able to rely on all of the evidence brought before it, in particular on documents and medical certificates assessing the likely duration of the disability in question. If it is clear from this evidence that the limitation suffered by Mr Daouidi is long-term in nature, that is to say that, as a result of possible sequelae, it is likely to last longer than the average time needed for an injury such as the one that he suffered to heal, and is likely to last for a significant period, then that limitation may come within the definition of ‘disability’ within the meaning of Directive 2000/78.
48.
By contrast, contrary to the indications provided by the national court, the employer’s assessment that Mr Daouidi absented himself for a sufficiently long period that it considered it necessary to dispense with his services is not such as to establish that his limitation was long-term in nature. Disability is an objective concept and it is therefore irrelevant to take account of the subjective views of the employer as to whether the inability to work of the applicant in the main proceedings was sufficiently long-term or not.
49.
In addition, still with regard to establishing whether or not the limitation is long-term, the French Government observes that the national court expressly classifies Mr Daouidi’s incapacity for work as ‘temporary’, which suggests that, when the national court considers his incapacity for work per se, and not in connection with the grounds justifying the employer’s decision to dismiss him, it does not consider the disability to be truly long-term in nature. However, in my view, the fact that the disability was initially classified as ‘temporary’ does not mean that it cannot, on the basis of medical evidence, later be regarded as being long-term. In addition, classification of a situation as coming within the concept of ‘disability’ for the purposes of Directive 2000/78 must not, in my view, depend on its classification as a ‘temporary disability’ within the meaning of national law, which was applied to the applicant in the main proceedings. Furthermore, I would point out that it is clear from the wording of the fifth question that Mr Daouidi is subject to temporary incapacity ‘of uncertain duration’.
50.
The French Government also points out that it is common ground that the applicant in the main proceedings was not dismissed until 53 days after his accident at work, which, in its view, appears to constitute much too short a period for it to be classifiable as ‘long-term’. The period of time between the occurrence of an accident at work and dismissal does not, however, appear to me to constitute a criterion for assessing the long-term nature or otherwise of a limitation suffered by a worker. Such a limitation could unquestionably be regarded as long-term, even if a worker was dismissed immediately following the accident at work. To adopt the contrary position would manifestly run counter to the protection of disabled workers, in that it would encourage employers to dismiss, as quickly as possible, sick or injured workers whose incapacity for work might become long-term.
51.
It is on the basis of the foregoing that the national court will have to determine whether Mr Daouidi’s situation comes within the concept of ‘disability’ for the purposes of Directive 2000/78.
52.
Since the application of Directive 2000/78 is linked to the assessment to be carried out by the national court following the Court’s judgment in this case, there is no need to consider whether the situation at issue in the main proceedings come within the scope of EU law at the present stage of the proceedings. (
19
)
IV – Conclusion
53.
Having regard to all of the foregoing considerations, I propose that the Court reply to the questions referred by the Juzgado de lo Social no 33 of Barcelona (Social Court No 33, Barcelona, Spain) along the following lines:
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, where a worker finds himself in a situation of temporary incapacity for work for an indeterminate period as the result of a work-related accident, his condition may be classified as a ‘disability’, within the meaning of that directive, where it entails a limitation resulting from, inter alia, long-term physical impairments which, in interaction with various obstacles, may impede the person concerned from participating fully and effectively in working life on the basis of equality with other workers. It is a matter for the national court to determine whether those conditions are satisfied in the case in the main proceedings.
(
1
)	Original language: French.
(
2
)	Hereinafter ‘the Charter’.
(
3
)	OJ 2000 L 303, p. 16.
(
4
)	OJ 2010 L 23, p. 35; hereinafter the ‘UN Convention’.
(
5
)	BOE No 75 of 29 March 1995, p. 9654.
(
6
)	Hereinafter the ‘Workers’ Statute’.
(
7
)	BOE No 245 of 11 October 2011, p. 106584, hereinafter ‘Law 36/2011’.
(
8
)	By contrast, as the national court emphasises, if the dismissal of Mr Daouidi had to be classified as ‘unfair’, the consequence of that classification would be that that worker would be entitled to minimum compensation only, amounting to the equivalent of barely 22 days’ pay.
(
9
)	See, inter alia, order of 23 February 2016, Garzón Ramos and Ramos Martín, C‑380/15, not published, EU:C:2016:112, paragraph 24 and the case-law cited.
(
10
)	See, inter alia, order of 23 February 2016, Garzón Ramos and Ramos Martín, C‑380/15, not published, EU:C:2016:112, paragraph 25 and the case-law cited.
(
11
)	See, inter alia, judgment of 18 December 2014, FOA, C‑354/13, EU:C:2014:2463, paragraph 53 and the case-law cited.
(
12
)	See Cavallini, J., ‘Maladie et discrimination indirecte fondée sur le handicap’, La semaine juridique — Édition sociale, 2013, No 23, p. 20. The author observes that ‘In order for there to be a disability, it is sufficient that a person is impeded, as a long-term consequence of illness, from carrying on a professional activity in a “normal” manner’, (p. 21). See also Boujeka, A., ‘La définition du handicap en droit international et en droit de l’Union européenne’, Recueil Dalloz, 2013, No 20, p. 1388. With regard to the ‘revised’ concept of disability under the UN Convention, the author states that ‘the lessons of sociology and anthropology have taught us that disability is not so much a deficiency as a result of the interplay between the individual’s functional limitation and social and environmental obstacles. Far from setting up a watertight barrier between illness and disability, this new approach regards the former as one of several causes of the latter’ (paragraph 9).
(
13
)	See, inter alia, inter alia, judgment of 18 December 2014, FOA, C‑354/13, EU:C:2014:2463, paragraph 54 and the case-law cited.
(
14
)	See, inter alia, judgment of 18 December 2014, FOA, C‑354/13, EU:C:2014:2463, paragraph 55 and the case-law cited.
(
15
)	See judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 40.
(
16
)	See judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 41.
(
17
)	See judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 42 and the case-law cited.
(
18
)	See, inter alia, for a formulation of this condition, the judgment of 18 March 2014, Z., C‑363/12, EU:C:2014:159, paragraph 79.
(
19
)	See, on this point, judgment of 27 March 2014, Torralbo Marcos, C‑265/13, EU:C:2014:187, paragraph 40.