Provisional text

OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 18 June 2020 ( )

Case C–16/19

VL





other party:

Szpital Kliniczny im. dra J. Babińskiego, Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie

(Request for a preliminary ruling from the Sąd Okręgowy w Krakowie (Regional Court, Kraków, Poland))

(Reference for a preliminary ruling – Social policy – Equal treatment in employment and occupation – Directive 2000/78/EC – Prohibition of discrimination on grounds of disability – Difference in treatment among disabled workers)





1. Can the conduct of an employer who, for the sole purpose of obtaining an economic advantage in the form of a reduction in contributions, pays a monthly allowance to only some of its disabled employees, differentiating them from its other disabled employees by reason of the date on which they submitted their disability certificate, be regarded as discriminatory for the purposes of Directive 2000/78/EC?

2. A disabled Polish worker was denied a supplementary payment paid by her employer to other disabled workers for the sole reason that she had submitted her disability certificate on a date prior to a meeting between staff and management. At that meeting, in order to bring about an increase in the number of disabled workers employed, so as to obtain a reduction in its contribution to a disability fund, the company had promised the supplementary payment at issue only to workers who produced a disability certificate after the date of the meeting.

3. The legal issue, a new one for the Court, that underlies the present case thus concerns the applicability of the prohibition of (direct or indirect) discrimination to the conduct of an employer who treats two groups of disabled individuals differently on the basis of an apparently neutral criterion (in this instance, the date of submission of a disability certificate).

I. Legal framework

A. International law

4. Article 1 of the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009 ( ) (‘the United Nations Convention’), states 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.’

5. Further, in accordance with Article 5 of that United Nations Convention, entitled ‘Equality and non-discrimination’:

‘1. States Parties recognise that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.

2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.

4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present convention.’

6. Lastly, pursuant to Article 27 of the United Nations Convention, entitled ‘Work and employment’:

‘1. 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;

…’

B. EU law

7. Recitals 11, 12 and 27 of Directive 2000/78 ( ) state as follows:

‘(11) Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons.

(12) To this end, 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. …

…

(27) In its Recommendation 86/379/EEC of 24 July 1986 on the employment of disabled people in the Community, the Council established a guideline framework setting out examples of positive action to promote the employment and training of disabled people, and in its Resolution of 17 June 1999 on equal employment opportunities for people with disabilities, affirmed the importance of giving specific attention inter alia to recruitment, retention, training and lifelong learning with regard to disabled persons.’

8. Article 1 of Directive 2000/78, entitled ‘Purpose’, states that ‘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.’

9. Article 2 of Directive 2000/78, entitled ‘Concept of discrimination’, provides as follows:

‘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.

…

5. This directive shall 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.’

10. Lastly, Article 7(2) of Directive 2000/78 provides as follows:

‘With regard to disabled persons, the principle of equal treatment shall be without prejudice to the right of Member States to maintain or adopt provisions on the protection of health and safety at work or to measures aimed at creating or maintaining provisions or facilities for safeguarding or promoting their integration into the working environment.’

C. Polish law

11. Article 11 of the Ustawa z dnia 26 czerwca 1974 r. Kodeks Pracy, tekst jednolity: Dziennik Ustaw z 2018 r., poz. 917 ze zmianami (Law of 26 June 1974 establishing the Labour Code (Journal of Laws of the Republic of Poland, 2018, item 917, consolidated version, as amended; ‘the Polish Labour Code’) provides as follows:

‘Any discrimination in employment, whether direct or indirect, in particular on grounds of gender, age, disability, race, religion, nationality, political convictions, trade union membership, ethnic origin, creed, sexual orientation, as well as on grounds of being employed for a fixed term or for an indefinite term or on a full-time or part-time basis, shall be prohibited.’

12. Pursuant to Article 183a of the Polish Labour Code:

‘§ 1. Employees shall be treated equally with respect to the establishment and termination of an employment relationship, employment conditions and promotion, as well as access to vocational training, in particular, regardless of gender, age, disability, race, religion, nationality, political convictions, trade union membership, ethnic origin, creed, sexual orientation and regardless of whether they are employed for a fixed term or for an indefinite term or on a full-time or part-time basis.

§ 2. Equal treatment in employment shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in § 1.

§ 3. Direct discrimination shall be taken to occur where an employee is, has been or would be treated less favourably than other employees in a comparable situation, on any of the grounds referred to in § 1.

§ 4. Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice places or would place all or a significant proportion of employees belonging to a particular group distinguished on one or more of the grounds referred to in § 1 at a disproportionate disadvantage, or at a particular disadvantage, in relation to the establishment or termination of an employment relationship, employment conditions, promotion or access to vocational training, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are necessary and appropriate.’

13. Article 183b of the Polish Labour Code provides as follows:

‘§ 1. An employer treating an employee differently on one or more of the grounds referred to in Article 183a(1) shall be considered to be in breach of the principle of equal treatment in employment, subject to the provisions of §§ 2 to 4, where the effects of such different treatment include, in particular:

…

(2) establishing disadvantageous remuneration for work or other disadvantageous terms of employment, the exclusion of the employee from promotion or other work-related benefits;

(3) …

– unless the difference of treatment is justified by objective considerations demonstrated by the employer.

…’

14. Article 183d of the Polish Labour Code provides that:

‘A person with respect to whom the employer has breached the principle of equal treatment in employment shall be entitled to compensation amounting to at least the minimum remuneration for work as determined on the basis of special provisions.’

15. The Ustawa z dnia 27 sierpnia 1997 r. o rehabilitacji zawodowej i społecznej oraz zatrudnianiu osób niepełnosprawnych (Law of 27 August 1997 on Vocational and Social Rehabilitation and Employment of Persons with Disabilities (Dz.U (Official Journal of the Republic of Poland), 1997, No 123, Text No 776), as subsequently amended, provides, in Article 2a thereof, as follows:

‘1. Persons with disabilities shall be considered part of the work force from the date on which they submit to their employer a certificate attesting to their disability. …’

16. Chapter 5 of the abovementioned law is entitled ‘Specific rights and obligations of employers in the employment of individuals’. In accordance with Article 21, employers employing 25 or more workers must contribute to the State fund for the rehabilitation of persons with disabilities (Fundusz Rehabilitacji Osób Niepełnosprawnych; ‘the Fund’):

‘1. Employers employing 25 or more workers, in terms of full-time equivalents, shall, without prejudice to paragraphs 2 to 5 and Article 22, pay monthly contributions to [the Fund] equivalent to 40.65% of average pay multiplied by the number of employees equalling the difference between the number of employees which ensures compliance with the employment index of 6% of persons having a disability in the workforce and the actual number of disabled persons employed.

2. Employers employing persons having a disability for at least 6% of their workforce shall be exempt from payment of the contribution referred to in paragraph 1. …’

II. The facts, the main proceedings and the question referred

17. VL was employed as a psychologist at the Szpital Kliniczny im. dr. J. Babińskiego, Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie (Dr J. Babiński Clinical Hospital, Independent Public Health Care Institution in Kraków; ‘the Hospital’), most recently from 3 October 2011 to 30 September 2016. On 8 December 2011, VL obtained a certificate attesting to a moderate, permanent disability, which she submitted to her employer on 21 December 2011.

18. Following a meeting with the staff in the second half of 2013, the director of the Hospital decided to pay a monthly allowance, in addition to salary, of 250 Polish złoty (approximately EUR 60) to employees who submitted a certificate attesting to a disability.

19. The relevant date for the grant of the allowance was the date on which the certificate was submitted to the Hospital’s director, rather than the date on which the certificate was obtained. Accordingly, the allowance, for which Polish law made no provision, was granted by unilateral decision of the Hospital’s director to 13 employees, specifically, those who had submitted a disability certificate on a date after the staff meeting. However, 16 employees who had already submitted a disability certificate prior to the staff meeting, including VL, were not paid the allowance.

20. In light of those facts, and following an inspection carried out by the national employment inspectorate, which found the criterion for the grant of the allowance to be discriminatory, VL challenged the measure adopted by her employer before the Sąd Rejonowy dla Krakowa – Nowej Huty w Krakowie IV Wydział Pracy i Ubezpieczeń Społecznych (District Court for Kraków-Nowa Huta in Kraków, 4th Labour and Social Insurance Division, Poland).

21. The purpose of that action was to obtain payment of the allowance (in the sum of 6 000 Polish złoty – approximately EUR 1 400 – in respect of the period from 1 September 2014, the date from which the allowance was paid to the 13 disabled employees, to 31 August 2016), together with compensation for the harm suffered as the result of a breach of the principle of equal treatment in employment.ą

22. By judgment of 5 December 2017, the District Court in Kraków (Sąd Rejonowy dla Krakowa) dismissed the action. As regards the allowance, that court found that no internal document of the Hospital currently in force stipulated that VL had any entitlement thereto, nor was any such entitlement stipulated in her individual employment contract or in any specific measure adopted by the employer. As for the claim for compensation in respect of discrimination, the court of first instance found that the allowance did not constitute remuneration for work done and that the criterion applied by the Hospital’s director to differentiate between employees, namely the date on which the disability certificate was submitted, did not come within the scope of the prohibition in Article 183a of the Polish Labour Code.

23. In particular, according to the court of first instance, the employer had not treated VL differently on account of her disability, inasmuch as such different treatment presupposed a comparison with employees who had no disability.

24. VL challenged the judgment at first instance before an appellate court, the Sąd Okręgowy w Krakowie (Regional Court, Kraków, Poland; ‘the referring court’), arguing that Directive 2000/78 prohibits any direct or indirect discrimination against disabled persons.

25. According to VL, the Hospital’s use of the arbitrary and unjustified criterion of the date of submission of the disability certificate for the purpose of determining whether to grant the allowance constituted discrimination against her, in that it created an unjustified distinction between her own situation and that of other disabled employees of the Hospital, ultimately resulting in a breach of the principle of non-discrimination. VL expressly requested the appellate court to refer a question to the Court of Justice of the European Union for a preliminary ruling.

26. In that context, being in doubt as to the interpretation of Article 2 of Directive 2000/78 and, in particular, as to whether direct or indirect discrimination, as referred to in the directive, could be taken to occur where an employer treats in different ways employees within a group that is distinguished by the same protected characteristic, in this case disability, the Sąd Okręgowy (Regional Court) stayed the main proceedings and referred the following question to the Court of Justice for a preliminary ruling:

‘Is Article 2 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation to be interpreted as meaning that the differing treatment of the situations of individual members of a group distinguished by a protected characteristic (disability) constitutes a form of breach of the principle of equal treatment where the employer treats individual members of that group differently on the basis of an apparently neutral criterion and that criterion cannot be objectively justified by a legitimate aim and the means of achieving that aim are not appropriate and necessary?’

III. Legal analysis

A. Preliminary observations

27. The referring court is essentially asking the Court of Justice to clarify the interpretation of Article 2 of Directive 2000/78 and, specifically, whether differing treatment of the situations of individuals within a group that shares the same protected characteristic, in this case disability, may be regarded as a ‘form of breach of the principle of equal treatment’.

28. The Court is thus called upon to decide whether the scope of Directive 2000/78, which has traditionally been confined to the prohibition of discrimination between individuals who have a certain protected characteristic and those who do not, may be extended, by means of interpretation, so as to cover situations where persons who have the same protected characteristic (in this instance disability) are treated differently.

29. The appellant in the main proceedings, the Republic of Poland and the Portuguese Republic, albeit with slightly different reasoning, propose that the question referred should be answered in the affirmative: conduct such as that adopted by the employer in the present case constitutes, in their view, discrimination prohibited by Directive 2000/78. The respondent in the main proceedings and the European Commission, on the other hand, propose that the question should be answered in the negative, on the ground that the situation under examination does not come within the scope of Directive 2000/78.

B. The general principles of equal treatment and non-discrimination and the purpose of Directive 2000/78

30. The principle of equal treatment is a general principle of EU law, enshrined in Article 20 of the Charter of Fundamental Rights of the European Union (‘the Charter’), of which the principle of non-discrimination laid down in Article 21(1) of the Charter is a particular expression. ( ) According to the Court’s settled case-law, that principle requires the EU legislature to ensure, in accordance with Article 52(1) of the Charter, that comparable situations are not treated differently and that different situations are not treated in the same way unless such treatment is objectively justified. ( )

31. The provisions of Directive 2000/78 give specific expression in secondary legislation to the limits to which the principle of non-discrimination enshrined in Article 21 of the Charter is, like all fundamental rights of the European Union, subject. ( )

32. The purpose of Directive 2000/78 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’. ( )

33. As is apparent in particular from Article 2(1) of that directive, the principle of equal treatment applies (exclusively) by reference to the grounds listed exhaustively in Article 1 thereof. ( )

34. We can therefore glean from the case-law of the Court cited that: (1) the purpose of Directive 2000/78 – implementing, by means of secondary legislation, the principles of equal treatment and non-discrimination – is to provide effective protection ( ) to individuals who find themselves in one or other protected situation, to ensure that they are not treated differently ( ) from individuals who are not in the same protected situation; (2) in so far as concerns the types of situation that are protected (Article 1 of the directive), a restrictive interpretation is called for; ( ) (3) not every difference in treatment between workers constitutes discrimination for the purposes of Directive 2000/78, but only those differences which concern one or other of the protected situations.

35. It is therefore necessary to consider whether a situation such as that at issue in the main proceedings comes within the scope of Directive 2000/78.

C. The scope of Directive 2000/78

36. Two opposing positions are taken on this point by the parties involved in the present case: the respondent in the main proceedings and the Commission appear to offer a restrictive interpretation of the whole of Directive 2000/78, in the sense that it can apply only in cases where disabled persons are treated differently from individuals who are not disabled ( ) and for reasons that are closely and directly related to the disability itself; the appellant in the main proceedings, the Republic of Poland and the Portuguese Republic, on the other hand, are of the opinion that Directive 2000/78 can also apply in situations, such as that in the present dispute, where the employer treats various disabled workers in different ways on the basis of a distinguishing criterion which (apparently) is not directly connected with disability.

37. As already indicated, it is apparent from the Court’s case-law that, in view of the wording of Article 13 EC (now Article 19 TFEU), from which Directive 2000/78 arises, the scope of the latter cannot be extended by analogy, including by reference to the general principle of non-discrimination, beyond the grounds of discrimination listed exhaustively in Article 1 of that directive. ( )

38. The grounds listed in Article 1 must, therefore, be interpreted restrictively. However, in so far as concerns the body of provisions contained in the directive (regarding, for example, the persons who are to be protected and those with whom they may be compared for the purposes of establishing discrimination), it is desirable, in my view, that they should be interpreted less strictly and with greater attention to the overall objectives of the directive and to its potential effectiveness in combating discrimination in employment relationships. ( )

39. The case-law of the Court offers interesting pointers in the direction of the conclusion which I have just indicated.

40. With reference to the persons who are to be protected, the Court has already offered a broad interpretation, in line with the directive’s objectives, stating clearly that ‘it does not follow from [the] provisions of Directive 2000/78 that the principle of equal treatment which it is designed to safeguard is limited to people who themselves have a disability within the meaning of the directive. ( ) On the contrary, the purpose of the directive, as regards employment and occupation, is to combat all forms of discrimination on grounds of disability. The principle of equal treatment enshrined in the directive in that area applies not to a particular category of person but by reference to the grounds mentioned in Article 1. That interpretation is supported by the wording of Article 13 EC, which constitutes the legal basis of Directive 2000/78, and which confers on the Community the competence to take appropriate action to combat discrimination based, inter alia, on disability.’ ( )

41. As regards the individuals with whom a comparison may be made, given that the ‘typical’ function of Directive 2000/78 – as of all legislative provisions prohibiting discrimination – is to protect workers in certain situations deserving of special protection by comparison with individuals who are not in the same situation, the point of reference for assessing whether or not conduct or measures are discriminatory is usually an individual who does not have the protected characteristic.

42. There may, however, be cases where the difference in treatment occurs within a group that is characterised by the protected situation, in the present case disability.

43. An interpretation according to which differing treatment would fall outside the scope of Directive 2000/78 merely because the individuals being compared were not disabled persons and persons with no disability, but disabled persons alone, would be formalistic, to say the least, and quite inconsistent with the aim which the directive purports to achieve, which is to ensure that certain individuals are not treated differently because of disability.

44. Obviously, this does not mean that every difference in treatment between one disabled worker (or group of disabled workers) and another disabled worker (or another group of disabled workers) should be treated as discrimination prohibited by Directive 2000/78, ( ) since such an interpretation could result in the paradox of reverse discrimination, which would impose on employers an absolute and automatic obligation to treat all disabled workers equally that is not enshrined in EU law. What is prohibited, on the other hand, is the favourable treatment, on grounds of disability, of one group of disabled workers to the detriment of another group of disabled workers.

45. What must be investigated, therefore, is whether the difference in treatment is related to the protected characteristic (disability), regardless of whether the comparison is made with individuals within the group having the protected characteristic or with individuals outside that group. In the words of the Court, ‘the principle of equal treatment enshrined in the directive in that area applies not to a particular category of person but by reference to the grounds mentioned in Article 1’. ( )

46. The example comes to mind of situations in which an employer treats disabled workers differently one from another, according to the type or degree of disability which each has. In such cases, the relation between the difference in treatment and the protected characteristic is unequivocal and we would, therefore, in my view, be squarely within the scope of Directive 2000/78, even though the comparison is made within the group of disabled workers. ( )

47. Having thus clarified, in the light of the Court’s case-law, the relationship between the general principles of equal treatment and non-discrimination and the objectives of Directive 2000/78 and the extent of the directive’s scope, it is necessary to conduct an analysis of a legal situation of the type at issue in the present case in order to determine whether it involves discrimination prohibited by that directive.

D. Assessment of discrimination: comparison, identification of the disadvantage and (possible) justification

1. The measure taken by the employer

48. The present case concerns a measure taken by an employer which granted a continuing monthly allowance exclusively to disabled workers who submitted a disability certificate after a certain date. In doing so, the employer withheld that allowance from workers who, being also disabled, had submitted the disability certificate on an earlier date.

49. Can such conduct amount to a case of discrimination within the meaning of Directive 2000/78? Does the criterion on which the difference in treatment was based relate to disability? With which individuals must a comparison be made in order to determine whether discrimination occurred? Was it direct or indirect discrimination? If it was indirect discrimination, might there be some objective justification which results in the measure adopted not being discriminatory?

2. The criterion of differentiation and its relation to the protected characteristic

50. As explained above, the case-law of the Court and an interpretation guided by international sources on discrimination and the objectives of Directive 2000/78 make it possible for us to overcome the objection that the directive applies only to situations in which disabled workers are compared with workers who do not have a disability.

51. In my opinion, the Court is now being called upon to add to its existing interpretation of Directive 2000/78 and, specifically, to clarify that it is possible for discrimination to occur even within groups of disabled persons for the very reason that Directive 2000/78 protects workers against differing treatment that relates to one of the protected characteristics, irrespective of the individual being discriminated against (a disabled person or someone directly related to a disabled person) and irrespective of the individual taken as a reference for comparison (a person with no disability or another disabled person).

52. The criterion on which the difference in treatment was based was, as we have seen, the date on which the disability certificate was submitted.

53. In the view of the respondent in the main proceedings (the Hospital) and, in part, of the Commission, that criterion bears no relation to disability and cannot therefore contribute to establishing discrimination, a necessary requirement of which, as an expression of the ‘principle of equal treatment’, is that it must, pursuant to Article 2 of Directive 2000/78, be based ‘on [one] of the grounds referred to in Article 1’.

54. By contrast, the appellant in the main proceedings (the employee), the Republic of Poland and the Portuguese Republic, albeit with slightly different reasoning, consider that the criterion of differentiation is closely related to the protected situation of ‘disability’, referred to in Article 1 of Directive 2000/78, and therefore can establish discrimination prohibited by that directive.

55. In order to give a full picture of all the possibilities, it is also relevant to mention that, as is apparent from the case file, the Polish employment inspectorate also took the view, following an inspection at the place of work of the appellant in the main proceedings, that the allowance was discriminatory. ( ) The court of first instance before which the appellant brought proceedings took the opposite view and dismissed her action solely on the basis of national law. The referring court, on the other hand, while appearing not to rule out the possibility that the employer’s conduct was discriminatory (taking the form of indirect discrimination), entertains the doubts expressed in the question referred regarding the possibility of applying Article 2 of Directive 2000/78 to situations which do not involve a comparison between a group of disabled persons and a group of individuals who do not have a disability.

56. The criterion of differentiation on which the employer based the difference in treatment is clearly illogical and lacking in objectivity. ( )

57. Indeed, the criterion rests on a date which places a group of disabled persons at a disadvantage (those who had already submitted their certificates on a date prior to the meeting), depriving them of the allowance and in a manner at odds with the objective pursued by the employer.

58. As the respondent in the main proceedings has expressly acknowledged, the reason for the unusual request that was made at the staff meeting was to increase the number of disabled employees so as to reduce the contribution to the Fund. ( )

59. If that is true, and if the employer’s decision was thus based on the reduction in the contribution obtained as a result of the number of disabled persons employed, the allowance should have been payable to all disabled workers, since they are all contributing in equal measure to the reduction in the contribution by the fact of their employment. Everyone who has submitted a certificate attesting to his or her disability, on whatever date, is contributing in equal share to the reduction in the contribution to that Fund.

60. Stranger still is the reasoning which the respondent in the main proceedings adopted at the hearing to explain the differing treatment of the two groups of disabled persons.

61. If it has been understood correctly, payment of the allowance to every employee who had submitted a disability certificate would have been too costly for the employer and perhaps disproportionate, overall, to the reduction in the contribution

62. Given that reasons of a purely economic nature would not be sufficient to preclude the discriminatory nature of the treatment, that argument confirms that it was not an objective decision on the employer’s part to treat in unequal fashion two groups of individuals in the same situation (disabled persons who submitted to their employer a disability certificate and who thereby all contributed to the reduction in the contribution to the Fund).

63. The criterion of differentiation was therefore not, as formally stated, the date on which the certificate was submitted, which is entirely neutral for the purposes of the reduction in the contribution, there being nothing on the case file to indicate any greater reduction in costs for the employer by reason of the date on which the disability certificate was submitted.

64. The criterion of differentiation was the receipt of a new disability certificate such as would increase the number of disabled persons employed.

65. If the criterion really had been the date on which the certificate was submitted, rather than the possession of a new certificate, then, paradoxically, it would have been sufficient for everyone who had already submitted a certificate to submit a new certificate in order to receive the allowance.

66. The true criterion of differentiation, therefore, was the obtaining and the submission of a certificate on a date subsequent to the meeting, which was arranged specifically to encourage workers to acquire a certificate, for the purpose of reducing the contribution.

67. If that is so, is such a criterion related to the protected situation (disability)?

68. In my view it is, because only a disabled worker is in a position to obtain a disability certificate, and consequently disability is the necessary prerequisite for an employee (who, theoretically already disabled, had, for personal reasons, not yet requested a disability certificate or submitted such a certificate to the employer) to be able to obtain a disability certificate and hand it to the employer.

3. Types of unlawful discrimination, comparable situations and (possible) justification

69. What type of discrimination does the conduct described involve?

70. Among the various arguments that she puts forward, the appellant in the main proceedings maintains that, even if Article 2 of Directive 2000/78 should be held not to apply in the present case, the employer’s conduct could amount to positive action within the meaning of Article 7 of that directive. ( )

71. I am inclined to rule out such a possibility. Positive actions may be defined, on the basis of Article 7 of Directive 2000/78, as measures which, designed ‘to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1’, are intended to remove actual barriers to equal opportunities, to promote employment and to achieve substantive equality between workers.

72. The present case does not, I think, involve a positive action. First of all, as the employer expressly admits, the objective of the adopted measure was to make a saving by way of a reduction in the contribution to the Fund; it was not a positive measure for the benefit of disabled workers. ( ) Secondly, I fail to see how positive action can consist in providing for an allowance that is reserved exclusively to a group of disabled workers who are distinguished from non-beneficiaries not by characteristics related to their employment relationship (as in Milkova), ( ) but solely by the date on which they submitted to their employer their disability certificate.

73. The reduction of the contribution to the Fund in response to the recruitment of new disabled persons could probably be regarded as a positive action on the part of the Polish legislature. The grant of the allowance in question, however, while related to that reduction, seems to me to have nothing to do with the objective of Article 7 of Directive 2000/78, inasmuch as the allowance is limited solely to one group of disabled persons on the basis of an illogical, unobjective criterion, has as its aim the obtaining of new certificates from individuals already employed, rather than the recruitment of new employees, and is unrelated to objectives of better integration of disabled employees.

74. As for the typical cases of discrimination, the distinction between direct discrimination and indirect discrimination is not particularly clear from the wording of the directive, and there are differing opinions also in the interpretation of those two categories.

75. I am inclined to take the view that the present case does not involve direct discrimination (as, it seems, do the employee and the Republic of Poland). ( )

76. Direct discrimination is normally found in situations where the unfavourable treatment is of ‘one person’ by comparison with ‘another … in a comparable situation’ and ‘on [one] of the grounds referred to in Article 1’. In the present case, however, the unfavourable treatment is of a ‘group of persons’ (disabled individuals who submitted their disability certificate on a date prior to the meeting).

77. There is therefore no direct connection between the employer’s measure and the protected characteristic. A direct causal nexus in the true sense is therefore lacking. The criterion used for differentiating between the two groups of disabled workers does not, in fact, relate directly to disability (to the type, degree, origin or duration of the disability), but is ‘apparently neutral’, resting on the date on which the disability certificate is or was submitted.

78. However, it is neutral only in appearance, because, as the parties (the appellant in the main proceedings, the Republic of Poland and the Portuguese Republic) have rightly argued, a disability certificate can be requested from, and submitted only by, a disabled person. It follows that the submission of such a certificate and the date on which it is submitted are inextricably linked to the protected characteristic. ( )

79. This enables a clear distinction to be drawn between the situation at issue in this case and that examined by the Court in Milkova. In its judgment in that case, the Court confined itself, quite reasonably, to excluding from the scope of Directive 2000/78 differences in treatment which, formally and substantively, albeit directed toward disabled employees, were referable to the ‘nature of the employment relationship’ and bore no relation to the disability itself.

80. In the present case, by contrast, the criterion, although ‘apparently neutral’ (in that it does not expressly and directly refer to disability), places ‘at a particular disadvantage’ (the withholding of the allowance certainly fits that concept) ‘persons having … a particular disability’ ‘in comparison with other persons’ and, in a way, as some of the parties concerned ( ) have argued, equates them with persons having no disability. ( )

81. It is on this point that the innovative scope of the Court’s decision should expand, if the Court decides to accept the suggestions made in this Opinion. Indeed, the provision contained in Article 2(2)(b) of Directive 2000/78 should be interpreted as including the possibility of comparing ‘(certain) persons having … a particular disability’ ‘with other persons (also possibly having a disability)’.

82. The comparator ‘with other persons’ is in fact usually interpreted as meaning that the reference is to persons not having the protected characteristic. This ‘traditional’ interpretation, which is in line with the equally ‘traditional’ function of the directive, is not, however, binding, as I have argued, in a case concerning discrimination in which, as in the present case, it is necessary to assess a measure which places certain disabled persons at a disadvantage in comparison with other disabled persons by virtue of a criterion that is (in appearance only) neutral.

83. I am thus inclined to take the view that the comparator may also be a group of disabled persons.

84. I therefore think that, in the present case, the situations are comparable, ( ) this being a requirement in order for an infringement of the prohibition of discrimination to be found: as I have indicated, some of the disabled employees (those who received no allowance) were treated less favourably than the other disabled employees, despite the fact that all the disabled persons are in a comparable situation, having all contributed in equal measure, by submitting a certificate, to generating the saving sought by the Hospital.

85. The interpretation offered, therefore, is not intended to protect a group solely because it is in a situation protected by Article 1 of Directive 2000/78, but to prevent two like groups that share the same protected characteristic from being treated differently because of a situation that is intrinsically linked to, although not caused by, the protected characteristic.

86. The interpretation offered of the situation under consideration and the suggestion that it involves indirect discrimination nevertheless calls for an assessment, not required in the case of direct discrimination, of the grounds of justification (one general and one specific) referred to in points (i) and (ii) of Article 2(2)(b) of the directive.

87. One of those justifications, specific to disability and provided for in point (ii), should be ruled out in the present case because, from what appears from the case file, the employer is not obliged by national legislation to adopt ‘reasonable accommodation’ (as referred to in Article 5 of Directive 2000/78) ‘in order to eliminate disadvantages entailed by such provision, criterion or practice’.

88. As for the general justification, provided for in point (i), in order to justify a difference in treatment it is necessary, essentially, to demonstrate that the rule or practice in question pursues a legitimate aim and that the means chosen to achieve that aim (that is to say, the measure which gave rise to the difference in treatment) are appropriate and necessary to achieving it.

89. In order to determine whether the difference in treatment is appropriate, the referring court must therefore check whether there were no other possible means of achieving the aim pursued that would have had less of a detrimental effect on the right to equal treatment or, in other words, that the disadvantage suffered is the minimum possible effect consistent with achieving the aim pursued and that the aim was sufficiently important to warrant that effect.

IV. Conclusion

90. In light of the foregoing considerations, I propose that the Court answer the question asked by the referring court as follows.

‘Article 2 of Council Directive 2000/78/CE of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that differing treatment of situations within a group defined by a protected characteristic (disability) may constitute a breach of the principle of equal treatment, namely indirect discrimination, under the following conditions: (a) the employer treats individual members of that group differently on the basis of an apparently neutral criterion; (b) that criterion, although apparently neutral, is inextricably related to the protected characteristic (in this case, disability); (c) that criterion cannot be objectively justified by a legitimate aim and the means of achieving that aim are not appropriate and necessary.’