Source: EURLEX
Language: en
Format: md

Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 13 March 2025 ([1](#Footnote1))

**Case C**‑**38/24 [Bervidi]**([i](#Footnotei))

**G.L.**

**v**

**AB SpA**

(Request for a preliminary ruling from the Corte suprema di cassazione (Supreme Court of Cassation, 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 discrimination on grounds of disability – Indirect discrimination by association – Worker who, without being herself disabled, claims to have been put at a particular disadvantage in the workplace on the ground of the disability of her child, to whom that worker provides the primary care and assistance needed by that child – Article 5 – Employer’s obligation to make reasonable accommodation for that worker )

  
  
  
  

I.      **Introduction**

1.        Ms G.L., who is the caregiver of her severely disabled child, claims that her employer, the company AB SpA, behaved in a discriminatory manner towards her by refusing to grant her request to be assigned, on a stable basis, a fixed morning shift for her duties at her workplace in order to enable her to provide her child with the primary care and assistance needed by that child, whilst continuing to pursue her occupational activity on an equal basis with other employees.

2.        In that context, the Corte suprema di cassazione (Supreme Court of Cassation, Italy) asks the Court, in particular, whether Directive 2000/78/EC ([2](#Footnote2)) must be interpreted as meaning that a person such as Ms G.L., who is not herself disabled, can rely in legal proceedings on the principle of *indirect* prohibition of discrimination on grounds of disability at her place of work. If so, that court seeks to ascertain whether Ms G.L’s employer must make reasonable accommodation for her, within the meaning of that directive, in order to remedy the discrimination.

3.        The present application for a preliminary ruling follows on from the judgment in *Coleman*, ([3](#Footnote3)) in which the Court established the concept of ‘discrimination by association’, with reference solely to *direct* discrimination. It will therefore be for the Court, in the light of the United Nations Convention on the Rights of Persons with Disabilities, which was concluded in New York on 13 December 2006 ([4](#Footnote4)) and entered into force on 3 May 2008 (‘the UN Convention’), to clarify the scope of the concept of ‘discrimination by association’ and the consequences it entails for the professional life of the caregiver of a disabled child.

II.    **Legal framework**

A.      **International law**

4.        The UN Convention states, in recital (e) of its preamble:

‘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.’

5.        According to Article 1 of that convention, headed ‘Purpose’:

‘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.’

6.        Article 2 of that convention, headed ‘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;

…’

7.        Article 5 of that convention, headed ‘Equality and non-discrimination’, provides, in paragraphs 1 to 3 thereof:

‘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.’

8.        Article 7 of the UN Convention, headed ‘Children with disabilities’, reads, in paragraphs 1 and 2 thereof, as follows:

‘1.      States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.

2.      In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.’

B.      **European Union law**

9.        Recitals 12, 16, 17, 20 and 21 of Directive 2000/78 state:

‘(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. …

…

(16)      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.

(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, headed ‘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, headed ‘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, headed ‘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.      According to Article 5 of Directive 2000/78, headed ‘Reasonable accommodation for disabled persons’:

‘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.      Decreto legislativo n. 216 – Attuazione della direttiva 2000/78 per la parità di trattamento in materia di occupazione e di condizioni di lavoro (Legislative Decree No 216 implementing Directive 2000/78 for equal treatment in employment and occupation) of 9 July 2003, ([5](#Footnote5)) as applicable to the dispute in the main proceedings (‘Legislative Decree No 216’), provides, in Article 2(1):

‘For the purposes of this Decree …, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on the grounds of religion, belief, disability, age or sexual orientation. This principle means that direct or indirect discrimination, as defined below, shall be prohibited:

(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 the grounds of religion, belief, disability, age or sexual orientation.

(b)      indirect discrimination shall be taken to occur where an apparently neutral provision, criterion, practice, act, pact or behaviour would put persons having a particular religion or belief, disabled persons or persons of a certain age or sexual orientation at a particular disadvantage compared with other persons.’

15.      Article 3(3a) of that legislative decree is worded as follows:

‘In order to guarantee compliance with the principle of equal treatment of persons with disabilities, public and private employers are required to make reasonable accommodation, as defined by the UN Convention …, ratified under Law No 18 of 3 March 2009, in the workplace to ensure that persons with disabilities are fully equal with other workers. Public employers must make provision for the implementation of this subparagraph without introducing or increasing burdens on public finance, using the human, financial and operational resources available under current legislation.’

III. **The main proceedings, the questions referred for a preliminary ruling and the procedure before the Court**

16.      Ms G.L. was employed by the company AB as a ‘station operator’. ([6](#Footnote6)) In her capacity as family caregiver, she requested her employer to assign her, on a stable basis, to a fixed morning shift for her duties or, with her consent, to lower-level duties, so as to enable her to care in the afternoon for her minor child, who lives with her, is severely disabled and has been recognised as being 100% disabled, whilst continuing to pursue her professional activity on an equal basis with other employees.

17.      As AB failed to take any action in response to Ms G.L.’s requests, she brought an action before the Tribunale di Roma (District Court, Rome, Italy), on 5 March 2019, seeking a declaration that her employer’s behaviour towards her was discriminatory. She requested that her employer be ordered to assign her definitively to a shift with fixed hours, between 08:30 and 15:00, or, in any event, one compatible with her child’s needs, to adopt a plan to eliminate the discrimination and to pay her compensation for damages.

18.      In that regard, Ms G.L., criticising her employer for not being flexible in its working hours, claimed in particular, first, that AB had treated her differently from her colleagues who, for health reasons, were considered to be temporarily or permanently unfit to perform their work in the normal manner. Whereas those colleagues were temporarily assigned to other tasks pending retraining in different duties, being assigned to a subsidised or ‘assisted’ service in a fixed workplace, she was not given that opportunity since, in her case, the assessment of fitness was made on the basis not of the health status of her child, but of her own health status. Second, AB adopted, in her case, measures of a temporary and non-definitive nature over an unreasonably long period of time in order to resolve the difficulties she was experiencing in continuing her working life arising from the assistance obligations weighing on her as her child’s caregiver. Third, AB failed to take any action in respect of her request to be potentially assigned, if necessary, to lower-level duties in order to resolve those difficulties.

19.      The Tribunale di Roma (District Court, Rome) dismissed Ms G.L.’s action on the ground that she was not the person authorised to act against the discrimination at work, who could only be the disabled person. Ms G.L. lodged an appeal against that judgment before the Corte d’appello di Roma (Court of Appeal, Rome, Italy), which dismissed that appeal on the merits. In that regard, that court based its decision on the judgment in *Coleman* in order to hold that a family caregiver is entitled to rely on national provisions protecting disabled persons against discrimination at work, in particular Article 2(1) and Article 3(3a) of Legislative Decree No 216. Nonetheless, in the present case, according to that court, no discriminatory conduct on the part of AB had been established and, in any event, that company had made ‘reasonable accommodation’. That court stated that, in particular, AB had in any case sufficiently facilitated Ms G.L.’s work, even though it was still by means of temporary administrative orders, and that, with regard to the treatment of workers who were unfit to work in the ordinary way and were temporarily assigned to other tasks pending retraining in a fixed place of work, AB had rightly not granted Ms G.L that possibility, given that her colleagues were the recipients of the prescriptions indicated in the medical certificates produced.

20.      Ms G.L. brought an appeal on a point of law before the Corte suprema di cassazione (Supreme Court of Cassation), the referring court, claiming that she met the legal requirements for the protection of her right to non-discrimination on grounds of disability in the workplace. In that regard, she disputed the fact that AB had made ‘reasonable accommodation’ and maintained that she was fully entitled to such accommodation. Ms G.L. also maintained that the temporary measures granted by AB, which were limited to a few months for discontinuous periods and not applied in written form, did not rule out the alleged discrimination. She also alleged an infringement of the rules on proving discrimination. After she brought her appeal on a point of law, Ms G.L. informed the court that she had been dismissed on 10 October 2022.

21.      The referring court states that, in Italian law, the first legal definition of ‘family caregiver’ resulted from a law adopted during 2017 ([7](#Footnote7)) and that, although national law entitles such a family caregiver to certain tax and social security benefits, that caregiver did not enjoy, at the time of the facts in the main proceedings, general protection against discrimination and harassment in the workplace as a result of the care duties incumbent on them. ([8](#Footnote8)) For that reason, the Tribunale di Roma (District Court, Rome) dismissed Ms G.L.’s action. However, the Corte d’appello di Roma (Court of Appeal, Rome), referring to the judgment in *Coleman* to support its argument, held that the family caregiver of a disabled person is entitled to protection against discrimination on the grounds of disability in the workplace.

22.      The referring court notes, however, that the judgment in *Coleman* related expressly and solely to *direct* discrimination and does not, at first sight, appear to extend application of Directive 2000/78 to caregivers of disabled persons relying on the existence of *indirect* discrimination in the workplace. Nonetheless, it considers that a broader interpretation of that directive would also be possible, based on consideration of the objectives it pursues, on its overall logic and on the changes in current legislation and economic and social dynamics.

23.      As regards legal changes, that court points out that the UN Convention entered into force on 3 May 2008 and that that convention can be relied on for the purposes of the interpretation of Directive 2000/78. In the light of the definition of the concept of ‘discrimination on the basis of disability’ in Article 2 of that convention, that convention does not seem to attach importance to the distinction between direct and indirect discrimination in relation to the protection of disabled persons. The Committee on the Rights of Persons with Disabilities, in its Views adopted under Article 5 of the Optional Protocol to the UN Convention, ([9](#Footnote9)) concerning Communication No 51/2018 of 26 August 2022, ([10](#Footnote10)) recognised, with reference to the Italian legal system, the serious consequences for persons with disabilities who are cared for that derive from a failure to recognise the legal status of the caregiver and from the absence of effective social protection measures for such caregivers, such as access to incentives, funds and the pension system, and flexibility in working hours and in the proximity of their homes.

24.      If the family caregiver of a disabled child is entitled to rely in legal proceedings on protection against indirect discrimination suffered in the workplace by reason of the care provided to that child, it would also be necessary to clarify whether that protection entails the provision of reasonable accommodation by the caregiver’s employer, in order to ensure compliance with the principle of equal treatment in relation to other workers. In that event, the referring court considers that it would be necessary to define the concept of ‘caregiver’ for the purposes of applying Directive 2000/78.

25.      In those circumstances, the Corte suprema di cassazione (Supreme Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Should European Union law be interpreted – where applicable on the basis also of the [UN Convention] – as meaning that a family caregiver of a severely disabled child who claims to have suffered indirect discrimination in an employment context as a result of the care provided by that individual is entitled to rely on the anti-discrimination protection that would be afforded to that disabled person, if they were the worker, by [Directive 2000/78]?

(2)      If the answer to question (1) is in the affirmative, should European Union law be interpreted – where applicable on the basis also of the [UN Convention] – as meaning that it is incumbent on the employer of the abovementioned caregiver to make reasonable accommodation to guarantee compliance – also in favour of that caregiver – with the principle of equal treatment in relation to other workers, modelled on the provisions laid down in relation to persons with disabilities in Article 5 of [Directive 2000/78]?

(3)      If the answer to questions (1) and/or (2) is in the affirmative, should European Union law be interpreted – where applicable also on the basis of the [UN Convention] – as meaning that the relevant caregiver for the purposes of [Directive 2000/78], should be understood as any person, whether a member of the family or a de facto cohabiting partner, who cares in a domestic setting, even informally, free of charge, for a significant number of hours, on an exclusive, continuous and long-term basis, for a person who, by reason of their severe disability, is not absolutely self-sufficient in the performance of the daily activities of living, or should European Union law be interpreted as meaning that the definition of caregiver in question is broader or even narrower than as stated above?’

26.      Written observations were submitted to the Court by Ms G.L., AB, the Italian and Greek Governments and the European Commission.

27.      In accordance with the Court’s request, this Opinion will be targeted at the first two questions referred for a preliminary ruling.

IV.    **Analysis**

A.      **The first question referred**

28.      By its first question, the referring court asks, in essence, whether Article 1 and Article 2(1) and (2)(b) of Directive 2000/78 should be interpreted as meaning that a worker who, without being himself or herself disabled, claims to have been put at a particular disadvantage at work, on the ground of the disability of his or her child, to whom that worker provides the primary care and assistance needed by that child, can rely in legal proceedings on the principle of the prohibition of indirect discrimination on the ground of disability laid down in those provisions.

29.      In accordance with Article 1 of Directive 2000/78, and as is clear from the title thereof, and preamble thereto, as well as from its content and purpose, that directive is intended to establish a general framework for combating discrimination on the ground, inter alia, of disability as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment, by providing everyone with effective protection against discrimination based, in particular, on that ground. ([11](#Footnote11)) Article 2(1) of that directive defines the principle of equal treatment for the purposes of that directive as the absence of any direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 of that directive, which include disability. Article 2(2)(a) of that directive provides that 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 the ground of, inter alia, disability, and Article 2(2)(b) thereof provides that, with the exception of the cases referred to in Article 2(2)(b)(i) and (ii), indirect discrimination is to be taken to occur where an apparently neutral provision, criterion or practice would put persons having, inter alia, a particular disability at a particular disadvantage compared with other persons.

30.      As regards the concept of ‘disability’, it must be recalled that the European Union approved the UN Convention by way of Decision 2010/48/EC. ([12](#Footnote12)) The provisions of the convention are thus, from the time of that decision’s entry into force, an integral part of the EU legal order. Moreover, according to the appendix to Annex II to that decision, in the field of independent living and social inclusion, work and employment, Directive 2000/78 is one of the EU acts which refers to matters governed by the convention. It follows that, according to the case-law of the Court, the UN Convention may be relied on for the purposes of the interpretation of that directive, which must, as far as possible, be interpreted in a manner consistent with that convention. It is for that reason that, following the European Union’s approval of the UN Convention, the Court took the view that the concept of ‘disability’ within the meaning of Directive 2000/78 must be understood as referring to a limitation of capacity 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. ([13](#Footnote13)) In the present case, the referring court states that the minor child of Ms G.L. is severely disabled and has been recognised as being 100% disabled. It is not disputed that that child is ‘disabled’ within the meaning of Directive 2000/78 or that Ms G.L. provides the primary care and assistance that he needs.

31.      In her written observations, Ms G.L. claims that she requested AB, in the first place, to assign her, on a stable basis, to a fixed morning shift for her duties so as to enable her to fulfil her obligation to provide assistance to her child, who must undergo a programme of essential treatment which must be administered to him at a fixed time in the afternoons, as required by the local health authority. In the second place, she asked to be assigned, if necessary, to lower-level duties in order to enable her to care for her child. However, her employer failed to take any action in respect of her requests, thereby treating her in a discriminatory manner. ([14](#Footnote14)) The dispute in the main proceedings therefore falls within the scope of employment and working conditions, within the meaning of Article 3(1)(c) of Directive 2000/78.

32.      By its question, the referring court seeks to ascertain whether the prohibition of indirect discrimination on the ground of disability laid down in that directive is applicable to a worker such as Ms G.L., in her capacity as a caregiver of a disabled child. That court refers to the judgment in *Coleman*, in which the Court ruled that that directive and, in particular, Article 1 and Article 2(1) and (2)(a) thereof, must be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions is not limited only to people who are themselves disabled. Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by Article 2(2)(a).

33.      The referring court asks whether, in the light of that judgment, which expressly and solely referred to direct discrimination, the application of Directive 2000/78 extends to caregivers of disabled persons who claim to have suffered *indirect discrimination* in their place of work. In that regard, it should be noted that, in that judgment, the Court, sitting in Grand Chamber formation, held that the purpose of the directive, as regards employment and occupation, is to combat *all forms of discrimination* on grounds of disability and that 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. ([15](#Footnote15)) According to the Court, the fact that Directive 2000/78 includes provisions designed to accommodate specifically the needs of disabled people *does not lead to the conclusion* that the principle of equal treatment enshrined in that directive must be interpreted strictly, that is, as *prohibiting only direct discrimination on grounds of disability* and relating exclusively to disabled people. ([16](#Footnote16)) The Court stated that, in the situation where the person who is subject to direct discrimination on grounds of disability is not herself disabled, the fact remains that it is the disability which is the ground for the less favourable treatment which she claims to have suffered. ([17](#Footnote17)) The Court added that, where it is established that an employee who is her disabled child’s primary carer suffers direct discrimination on grounds of disability, an interpretation of Directive 2000/78 limiting its application only to people who are themselves disabled is liable to deprive that directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee. ([18](#Footnote18))

34.      I would point out that, by the judgment in *Coleman*, the Court established the concept of ‘discrimination by association’, according to which a person may rely on Directive 2000/78 where that person is not himself or herself disabled, but is treated less favourably in the workplace in his or her capacity as caregiver of a disabled person. It is true that in the operative part of that judgment, the Court referred only to direct discrimination, in answer to the questions referred for a preliminary ruling, which mentioned only that form of discrimination. However, as stated in Article 2(1) of Directive 2000/78, the principle of equal treatment means the absence of *any direct or indirect* discrimination whatsoever on any of the grounds referred to in Article 1 thereof. ([19](#Footnote19)) Therefore, in my view, it follows from the wording of that provision that the prohibition of *direct* discrimination by association on the grounds of disability logically entails prohibition of *indirect* discrimination by association. In other words, to draw a distinction between those two forms of discrimination would be to call into question the internal consistency of that directive. ([20](#Footnote20)) Accordingly, the Court stated in paragraph 38 of the judgment in *Coleman* that the purpose of that directive is to combat *all forms* of discrimination on grounds of disability. As the Italian Government observed in its written observations, it is also explicitly clear from the very wording of that judgment, and in particular from paragraph 43 thereof, that Directive 2000/78 *prohibits not only direct discrimination* on grounds of disability and relating exclusively to disabled people, which, in my view, means that that directive also prohibits indirect discrimination by association. ([21](#Footnote21))

35.      Moreover, the purpose of that directive, as stated in Article 1 thereof, is to lay down a general framework with a view to putting into effect the principle of equal treatment. The prohibition of direct discrimination by association and the prohibition of indirect discrimination by association are closely linked in that, as the referring court points out, there can be no real protection against unfavourable treatment in the workplace that does not systematically address both of those forms of discrimination.

36.      The interpretation that Directive 2000/78 applies both to direct discrimination and indirect discrimination by association is supported by the case-law of the Court. In that regard, reference should be made to the judgment in *CHEZ*, ([22](#Footnote22)) relating to Directive 2000/43/EC, ([23](#Footnote23)) Article 1 and Article 2(1) of which are drafted in terms similar to those in Article 1 and Article 2(1) of Directive 2000/78 in respect not of ‘disability’ but of ‘race or ethnic origin’. In that judgment, the Court, also sitting in Grand Chamber, ruled that the concept of ‘discrimination based on ethnic origin’, within the meaning of Directive 2000/43, must be interpreted as meaning that, in circumstances in which, in an urban district mainly lived in by inhabitants of Roma origin, all the electricity meters are placed on pylons forming part of the overhead electricity supply network at a height of between six and seven metres, whereas such meters are placed at a height of less than two metres in the other districts, that concept is intended to apply, *irrespective* of whether that collective measure affects persons who have a certain ethnic origin or those who, without possessing that origin, suffer, together with the former, the less favourable treatment or particular disadvantage resulting from that measure. In its reasoning, the Court, referring, by analogy, to the judgment in *Coleman**,* emphasised that the case-law under which the scope of that directive cannot, in the light of its objective and the nature of the rights which it seeks to safeguard, be defined restrictively, is, in this instance, such as to justify the interpretation that the principle of equal treatment to which that directive refers applies not to a particular category of person but by reference to the grounds mentioned in Article 1 thereof, so that that principle is intended to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds. ([24](#Footnote24)) Therefore, the Court expressly held that indirect discrimination by association fell within the scope of Directive 2000/43, which is drafted according to the same structure as Directive 2000/78. ([25](#Footnote25))

37.      The prohibition by the latter directive, of indirect discrimination by association is also supported by the UN Convention which, according to the case-law of the Court, may be relied on for the purposes of the interpretation of that directive, which must, as far as possible, be interpreted in a manner that is consistent with that convention. ([26](#Footnote26)) Article 5(2) of that convention provides that 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*. That convention therefore adopted a broad interpretation of the concept of ‘discrimination on the basis of disability’ from which it logically follows that the UN Convention prohibits indirect discrimination by association.

38.      In that respect, the Committee on the Rights of Persons with Disabilities ([27](#Footnote27)) established in the Optional Protocol to the UN Convention, in its General comment No. 6 (2018) on equality and non-discrimination of 26 April 2018, ([28](#Footnote28)) considered that Article 5(2) of the UN Convention contains the legal requirements for achieving equality rights for persons with disabilities and *persons associated with them* and that the obligation to prohibit all discrimination on the basis of disability includes persons with disabilities and their associates, *for example*, *parents of children with disabilities.*([29](#Footnote29)) That committee also stated that discrimination ‘on the basis of disability’ can in particular be against persons who are associated with a person with a disability, the latter form of discrimination being known as ‘discrimination by association’, and that the reason for the wide scope of Article 5 is to eradicate and combat all discriminatory situations and/or discriminatory conducts that are linked to disability. ([30](#Footnote30)) The committee further states that the concept of protection against ‘discrimination on all grounds’ means that all possible grounds of discrimination and their intersections must be taken into account. ([31](#Footnote31))

39.      More recently, in its Views adopted under Article 5 of the Optional Protocol, concerning Communication No. 51/2018, of 26 August 2022, ([32](#Footnote32)) the Committee on the Rights of Persons with Disabilities examined the communication of a person acting in her capacity as caregiver to her daughter and to her partner, both of whom are persons with disabilities. That committee, referring to its General comment No. 6, applied the concept of ‘discrimination by association’, noting the author’s claim that the legal vacuum characterizing the Italian legal system leaves family caregivers vulnerable and exposed to discrimination due to association in violation of Article 5 of the UN Convention.

40.      Even though the European Union has not approved the Optional Protocol to the UN Convention and even though the Committee on the Rights of Persons with Disabilities is not a judicial body, it is significant that that committee also adopts, as a consequence, a broad interpretation of the concept of ‘discrimination on the basis of disability’ and explicitly refers to discrimination by association, without limiting that discrimination to direct discrimination.

41.      I would also point out that, in accordance with the case-law of the Court, Directive 2000/78 is a specific expression, within the field that it covers, of the general prohibition of discrimination laid down in Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which prohibits *any discrimination* based, inter alia, on disability. Moreover, Article 26 of the Charter provides that the European Union is to recognise and respect 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. ([33](#Footnote33)) Under Article 52(3) of the Charter, in so far as the Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), the meaning and scope of those rights are to be the same as those laid down by the Convention. Article 53 of the Charter further states that nothing in the Charter is to be interpreted as restricting or adversely affecting, within the scope of EU law, the rights recognised inter alia by the ECHR.

42.      However, in that regard, it should be noted that the European Court of Human Rights (‘the ECtHR’), ([34](#Footnote34)) hearing a case brought by an applicant who relied inter alia on indirect discrimination, ([35](#Footnote35)) held that a person’s health status, including disability and various impairments, fall within the term ‘other status’ in the text of Article 14 of the ECHR. ([36](#Footnote36)) That Court reiterated that the words ‘other status’ have generally been given a wide meaning in its case-law and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent, and that it follows that, in the light of its objective and the nature of the rights which it seeks to safeguard, Article 14 of the ECHR also covers instances in which an individual is treated less favourably on the basis of another person’s status or protected characteristics. The ECtHR concluded from this that the alleged discriminatory treatment of the applicant on account of the disability of his child, with whom he has close personal links and for whom he provides care, is a form of disability-based discrimination covered by Article 14 of the ECHR. ([37](#Footnote37)) That Court therefore established the concept of ‘discrimination by association’, without drawing a distinction between direct discrimination and indirect discrimination. ([38](#Footnote38))

43.       Accordingly, I consider that, even though Article 2(2)(b) of Directive 2000/78 refers to ‘persons having a particular disability’, that provision means that the family caregiver of a disabled child is entitled to rely in legal proceedings, under the prohibition of indirect discrimination by association, on the protection against discrimination which would be afforded to the disabled person himself if that person were the worker, if that directive is not to be deprived of part of its effectiveness. In other words, that directive ensures the protection of two persons at once, namely, on the one hand, the disabled child, who receives the assistance of a caregiver within the family, and, on the other hand, that caregiver in the professional context, because of his or her diminished availability to carry out his or her tasks as a result of the assistance provided.

44.      In the present case, the referring court starts from the premiss that Ms G.L. may have suffered indirect discrimination by association. In that regard, it should be recalled that, according to the settled case-law of the Court, it cannot be held that a provision or practice establishes a difference in treatment directly based on disability, for the purposes of the combined provisions of Article 1 and Article 2(2)(a) of Directive 2000/78, where it is based on a criterion that is not inextricably linked to disability. ([39](#Footnote39))

45.      In the case which gave rise to the judgment in *Coleman*, the applicant reported that she had been treated less well by her employer than her colleagues who were parents of non-disabled children. ([40](#Footnote40)) That difference in treatment was regarded as concerning the concept of ‘direct discrimination by association’, which 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 the grounds, inter alia, of disability. Such a difference in treatment appears to be inextricably linked to the child’s disability. ([41](#Footnote41))

46.      According to Article 2(2)(b) of Directive 2000/78, with the exception of the cases referred to in Article 2(2)(b)(i) and (ii), ‘indirect discrimination by association’ may stem from a measure which, albeit formulated in neutral terms, that is to say, by reference to other criteria not related to the protected characteristic, leads, however, to the result that persons possessing that characteristic are put at a particular disadvantage. ([42](#Footnote42)) In my view, the typical example of such discrimination is the introduction by the employer, in a general manner, of inflexible patterns of working time. That rule is formulated in neutral terms in that it applies to all employees but it is particularly disadvantageous for family caregivers of disabled children, who need more flexible working hours in order to be able to provide the care and assistance which such children require in view of their health status. ([43](#Footnote43))

47.      It is for the referring court, which alone has jurisdiction to assess the facts, to verify whether the conduct for which AB is criticised is attributable to direct discrimination by association within the meaning of Article 2(2) of Directive 2000/78.

48.      In the light of the foregoing considerations, I propose that the answer to the first question referred for a preliminary ruling should be that Article 1 and Article 2(1) and (2)(b) of Directive 2000/78 must be interpreted as meaning that a worker who, without being himself or herself disabled, claims to have been put at a particular disadvantage at work, on the ground of the disability of his or her child, to whom that worker provides the primary care and assistance needed by that child, can rely in legal proceedings on the principle of the prohibition of indirect discrimination on the ground of disability laid down in those provisions.

B.      **The second question referred**

49.      By its second question, which is raised in the event that the first question is answered in the affirmative, the referring court asks, in essence, whether Article 5 of Directive 2000/78 must be interpreted as meaning that, where a worker who, without being disabled, is the caregiver of his or her disabled child, that caregiver’s employer is required, as a matter of ‘reasonable accommodation’ under that article, to take appropriate measures to enable that caregiver, where needed in a particular case, to provide his or her child with primary care and assistance.

50.      Under Article 5 of Directive 2000/78, in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation must be provided. Thus, employers must 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.

51.      In paragraph 42 of the judgment in *Coleman*, the Court stated that the fact that that Article 5 relates specifically to disabled persons is because the measures in question are specific measures which would be rendered meaningless or could prove to be disproportionate if they were not limited to disabled persons only. The Court added that, as recitals 16 and 20 of that directive indicate, the measures in question are intended to accommodate the needs of disabled people at the workplace and to adapt the workplace to their disability. Such measures are therefore designed specifically to facilitate and promote the integration of disabled people into the working environment and, for that reason, can only relate to disabled people and to the obligations incumbent on their employers and, where appropriate, on the Member States with regard to disabled people.

52.      However, under Article 2(2)(b)(ii) of Directive 2000/78, indirect discrimination is to be taken to occur where an apparently neutral provision, criterion or practice would put persons having, inter alia, a particular disability at a particular disadvantage compared with other persons unless the employer or any person or organisation to whom that directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 of that directive in order to eliminate disadvantages entailed by such provision, criterion or practice. Therefore, the provision of reasonable accommodation makes it possible to remedy a situation of indirect discrimination. Accordingly, as the Commission stated in its written observations, indirect discrimination and the reasonable accommodation incumbent on employers are closely linked. Similarly, pursuant to Article 2 of the UN Convention, discrimination on the grounds of disability includes all forms of discrimination, including denial of reasonable accommodation. In those circumstances, since it is recognised that Directive 2000/78 prohibits indirect discrimination by association, it logically follows from this that reasonable accommodation must be provided for the worker who has suffered indirect discrimination by association in the workplace on the ground of disability in order to implement the principle of equal treatment.

53.      Moreover, the UN Convention, which was approved by the European Union *after*  the date of delivery of the judgment in *Coleman**,* defines, in Article 2 thereof, reasonable accommodation as ‘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 fundamental rights and freedoms’. It is clear from that definition that, unlike the wording of Article 5 of Directive 2000/78, reasonable accommodation is not restricted to persons with disabilities in the workplace and that it may also benefit a disabled person who is unable to engage in an occupational activity in the form of accommodation provided to the worker as a caregiver. By means of that accommodation, the worker is able to provide the primary care and assistance required by the disabled person, *irrespective of his or her age*. In that regard, Article 5(3) of that convention provides that ‘in order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided’, without imposing any limit on the persons concerned.

54.      Furthermore, Article 7(1) of the UN Convention states that ‘States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children’. Since a disabled child is dependent on another person for the enjoyment of those rights and freedoms, that child’s caregiver must be able to provide that child with the assistance that he or she needs, which may mean adapting that caregiver’s working conditions. The need for reasonable accommodation is all the greater where the disabled person is a child. However, as stated, that convention can be relied on for the purposes of the interpretation of Directive 2000/78, which must, as far as possible, be interpreted in a manner consistent with the convention([44](#Footnote44)) More generally, Article 7(2) of the UN Convention, like Article 24(2) of the Charter, provides that, in all actions concerning children with disabilities, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration.

55.      As regards the type of reasonable accommodation that may be relied on by the caregiver of a disabled person, it should be noted that recital 20 of Directive 2000/78 includes amongst the appropriate measures ‘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’. In that regard, the Court has already held that that recital provides a non-exhaustive list of appropriate measures, and that they may be physical, organisational and/or educational, since Article 5 of that directive, read in the light of Article 2 of the UN Convention, prescribes a broad definition of the concept of ‘reasonable accommodation’. ([45](#Footnote45))

56.      As I have already stated in my Opinion in *HR Rail**,*([46](#Footnote46)) the objective of Article 5 of Directive 2000/78, read in the light of recitals 17 and 20 thereof, 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. Where the caregiver is not him or herself a disabled person, the caregiver’s working environment must also be adapted to the same end. The appropriate measures that the employer may adopt, where needed in a particular case, then relate not to the adaptation of premises and equipment but, in particular, to the patterns of working time or the distribution of tasks. ([47](#Footnote47)) As regards patterns of working time, the Court has already held that Article 5 of that directive must be interpreted as meaning that a reduction in working hours may constitute one of the accommodation measures referred to in that article. ([48](#Footnote48)) In the present case, Ms G.L. requested her employer, in the first place, to assign her to a fixed morning shift, which appears to be covered by patterns of working time and performance of tasks. In the second place, she asked her employer to assign her, if necessary, to lower-level duties. According to the case-law of the Court, in certain circumstances, reassignment to another job may constitute an appropriate measure in the context of ‘reasonable accommodation’ within the meaning of Article 5 of that directive. ([49](#Footnote49))

57.      That being said, Article 5 of Directive 2000/78 does not oblige an employer to take measures which would impose a disproportionate burden on it. In that regard, it follows from recital 21 of that directive that, in order to determine whether the measures in question give rise to a disproportionate burden on that employer, account should be taken in particular of the financial costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance. ([50](#Footnote50))

58.      In the present case, in its written observations, AB maintains that there was a shortage of staff in the ‘station operators’ category, and that, in any event, no vacant post was available in the ‘mobility assistants’ category, who belong to a different professional group. Ms G.L. was nonetheless removed from the normal working pattern of her position applicable to station operators on the metro line to which she was attached, and was assigned, unlike her other colleagues, to a fixed place of work with preferential working hours. AB therefore made the necessary reasonable accommodation, without managing to assign Ms G.L. to a fixed post for an indefinite period.

59.      In that regard, it is for the referring court to verify whether Ms G.L.’s request constituted a disproportionate burden on her employer within the meaning of Directive 2000/78.

60.      In the light of all of the foregoing, I propose that the answer to the second question referred should be that Article 5 of Directive 2000/78 must be interpreted as meaning that, where a worker who, without being disabled, is the caregiver of his or her disabled child, that caregiver’s employer is required, as a matter of ‘reasonable accommodation’ under that article, to take appropriate measures, in particular relating to adjustment of patterns of working time and alteration of tasks to be performed, to enable that worker, where needed in a particular case, to provide his or her child with primary care and assistance, provided that those measures do not impose a disproportionate burden on that employer.

V.      **Conclusion**

61.      In the light of the foregoing considerations, I propose that the Court of Justice should answer the first and second questions referred by the Corte suprema di cassazione (Supreme Court of Cassation, Italy) as follows:

(1)      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 a worker who, without being himself or herself disabled, claims to have been put at a particular disadvantage at work on the ground of the disability of his or her child, to whom that worker provides the primary care and assistance needed by that child, can rely in legal proceedings on the principle of the prohibition of indirect discrimination on the ground of disability laid down in those provisions.

(2)      Article 5 of Directive 2000/78

must be interpreted as meaning that where a worker who, without being himself or herself disabled, is the caregiver of his or her disabled child, that caregiver’s employer is required, as a matter of ‘reasonable accommodation’ under that article, to take appropriate measures, in particular relating to adjustment of patterns of working time and alteration of tasks to be performed, to enable that worker, where needed in a particular case, to provide his or her child with primary care and assistance, provided that those measures do not impose a disproportionate burden on that employer.

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[1](#Footref1)      Original language: French.

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[i](#Footrefi)      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

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[2](#Footref2)      Council Directive of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

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[3](#Footref3)      Judgment of 17 July 2008 (C‑303/06, ‘the judgment in *Coleman*’, EU:C:2008:415).

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[4](#Footref4)      *United Nations Treaty Series*, Vol. 2515, p. 3.

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[5](#Footref5)      GURI No 187 of 13 August 2003, p. 4.

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[6](#Footref6)      In its written observations, AB stated that station operators, working in the traffic sector of the rail network (metro/train/tram), do not have a fixed workplace and are attached to an administrative workplace which coincides with the whole of the metro line, or the whole section of railway line, on which they are employed. They have an assigned workplace corresponding to one of the stations on their line or section where they need to be in order to pursue their activity.

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[7](#Footref7)      Legge n. 205 – Bilancio di previsione dello Stato per l’anno finanziario 2018 e bilancio pluriennale per il triennio 2018-2020 (Law No 205 on the estimated State budget for the financial year 2018 and the multiannual budget for the three-year period from 2018 to 2020) of 27 September 2017 (GURI No 302 of 29 December 2017, Ordinary Supplement to the GURI No 62).

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[8](#Footref8)      The referring court states that Article 25(2a) of Legislative Decree No 216, introduced by Legge n. 162 (Law No 162) of 5 November 2021 (GURI No 275 of 18 November 2021), which was adopted after the time of the facts in the main proceedings, provides that ‘“discrimination”, for the purposes of the present Title, means any treatment or alteration to the accommodation of working conditions or working time which, because of sex, age, personal or family care needs, pregnancy, maternity or paternity including adoptive maternity or paternity, or on grounds of detention and the exercise of related rights, places or may place the worker in at least one of the following situations: (a) disadvantageous situation compared with that of other workers; (b) limitation of possibilities for participation in the life and decision-making of the undertaking; (c) limitation of access to promotion and career progression mechanisms’.

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[9](#Footref9)      According to Article 1(1) of that protocol, a State Party to the protocol recognizes the competence of the Committee on the Rights of Persons with Disabilities to receive and consider communications from or on behalf of individuals or groups of individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of the provisions of the UN Convention. Article 5 of that protocol states that the Committee must hold closed meetings when examining communications under that protocol and that, after examining a communication, the Committee is to forward its suggestions and recommendations, if any, to the State Party concerned and to the petitioner.

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[10](#Footref10)      Those views, available in particular in Spanish-, English- and French-language versions, may be consulted at the following address: https://tbinternet.ohchr.org/\_layouts/15/treatybodyexternal/SessionDetails1.aspx?SessionID= 2545&Lang=en, in the section ‘Consideration of individual complaints’, then ‘Jurisprudence CRPD/C/27/D/51/2018 Maria Simona Bellini’.

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[11](#Footref11)      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 32 and the case-law cited).

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[12](#Footref12)      Council Decision of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (OJ 2010 L 23, p. 35).

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[13](#Footref13)      See judgment of 11 September 2019, *Nobel Plastiques Ibérica* (C‑397/18, EU:C:2019:703, paragraphs 39 to 41 and the case-law cited). On the concept of ‘disability’ within the meaning of Directive 2000/78, see, also, judgment of 18 January 2024, *Ca Na Negreta* (C‑631/22, EU:C:2024:53, paragraph 34).

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[14](#Footref14)      See point 18 of this Opinion.

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[15](#Footref15)      See judgment in *Coleman* (paragraph 38). See, also, 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 34 and the case-law cited).

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[16](#Footref16)      See judgment in *Coleman* (paragraph 43).

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[17](#Footref17)      See, to that effect, judgment in *Coleman* (paragraph 50).

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[18](#Footref18)      See, to that effect, judgment in *Coleman* (paragraph 51).

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[19](#Footref19)      See, also, recital 12 of Directive 2000/78.

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[20](#Footref20)      See, to that effect, Opinion of Advocate General Kokott in *CHEZ Razpredelenie Bulgaria*  (C‑83/14, EU:C:2015:170, point 106), according to which ‘I think that it is fair to recognise the concept of “discrimination by association” in connection with indirect discrimination in the same way as in connection with direct discrimination’.

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[21](#Footref21)      See, however, Waddington, L., ‘Case C‑303/06, S. Coleman v. Attridge Law and Steve Law, Judgment of the Grand Chamber of the Court of Justice of 17 July 2008’, *Common Market Law Review*, Vol. 46, No 2, 2009, pp. 665-681, in particular pp. 675 and 676. According to that author, the Court did not rule on the question of indirect discrimination by association in the judgment in *Coleman*.

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[22](#Footref22)      Judgment of 16 July 2015, *CHEZ Razpredelenie Bulgaria* (C‑83/14, ‘the judgment in *CHEZ*’, EU:C:2015:480). On the links between the judgments in *Coleman* and in *CHEZ* regarding the scope of discrimination by association, see Benedi Lahuerta, S., ‘Ethnic Discrimination, Discrimination by Association and the Roma Community’, Common Market Law Review, Vol. 53, No 3, 2016, pp. 797-817, in particular pp. 809-812.

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[23](#Footref23)      Council Directive of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22).

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[24](#Footref24)      Judgment in *CHEZ* (paragraph 56 and the case-law cited).

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[25](#Footref25)      See, to that effect, McCrudden, C., ‘The New Architecture of EU Equality Law after CHEZ: Did the Court of Justice Reconceptualise Direct and Indirect Discrimination ?’, *European equality law review*, No 1, 2016, pp. 1-10, in particular p. 7. That author notes that the judgment in *CHEZ* extended the circle of persons who may rely on the prohibition of indirect discrimination, that extension being due to the application of the concept of ‘discrimination by association’ to indirect discrimination.

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[26](#Footref26)      See, point 30 of this Opinion.

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[27](#Footref27)      See, on that committee, point 23 of this Opinion.

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[28](#Footref28)      CRPD/C/GC/6. That document, available inter alia in English-, Spanish- and French-language versions, may be consulted at the following address: https://www.ohchr.org/en/documents/general-comments-and-recommendations/general-comment-no6-equality-and-non-discrimination.

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[29](#Footref29)      General comment No 6, (paragraph 17).

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[30](#Footref30)      General comment No 6, (paragraph 20).

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[31](#Footref31)      General comment No 6, (paragraph 21).

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[32](#Footref32)      On those views, see, also, point 23 of this Opinion. See, in particular, paragraph 7.9 of those views.

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[33](#Footref33)      See judgment of 18 January 2024, *Ca Na Negreta* (C‑631/22, EU:C:2024:53, paragraph 40 and the case-law cited).

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[34](#Footref34)      See ECtHR, 22 March 2016, *Guberina v. Croatia*, CE:ECHR:2016:0322JUD002368213.

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[35](#Footref35)      According to the Information Note on the case-law of the ECHR, available at the following address: https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-11097%22]}, ‘the applicant lived with and provided care for his severely disabled child. In order to provide the child with better and more suitable accommodation, the applicant sold the family’s third-floor flat, which did not have a lift, and bought a house. He then sought tax relief on the purchase but his request was refused on the grounds that his previous flat had met the family’s needs. In the Convention proceedings, the applicant complained that the manner in which the tax legislation had been applied to his situation amounted to discrimination based on his child’s disability’.

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[36](#Footref36)      Under that article, ‘the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’.

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[37](#Footref37)      See paragraphs 76 to 79 of that judgment.

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[38](#Footref38)      It should be noted that, in that judgment, the ECtHR, in the section ‘Relevant International Material’, referred inter alia to the judgments in *Coleman*  and in *CHEZ*  (see paragraphs 41 and 42).

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[39](#Footref39)      See 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).

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[40](#Footref40)      See judgment in *Coleman* (paragraph 26).

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[41](#Footref41)      As Advocate General Poiares Maduro stated in his Opinion in *Coleman* (C‑303/06, EU:C:2008:61, point 20), ‘Ms Coleman’s case raises an issue of direct discrimination. As the order for reference makes clear, she is not complaining of the impact a neutral measure had on her as the mother and carer of a disabled child, but claims that she was singled out and targeted by her employer precisely because of her disabled son. Therefore, the issue for the Court is whether direct discrimination by association is prohibited by the Directive’.

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[42](#Footref42)      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 55 and the case-law cited).

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[43](#Footref43)      For example, a family caregiver who must work every day of the week between 09:00 and 18:00, without any flexibility, would obviously find it difficult to go to a medical appointment with her child during the week, in view of the opening hours of medical practices.

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[44](#Footref44)      See point 30 of this Opinion.

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[45](#Footref45)      See judgment of 10 February 2022, *HR Rail* (C‑485/20, EU:C:2022:85, paragraph 40 and the case-law cited).

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[46](#Footref46)      C‑485/20, EU:C:2021:916, point 59.

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[47](#Footref47)      It should be noted that the possibility of obtaining adjustment of patterns of working time for caregivers is now explicitly provided for in EU law. Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU (OJ 2019 L 188, p. 79), which is not applicable *ratione temporis* to the dispute in the main proceedings, states, in Article 9(1) thereof, that ‘Member States shall take the necessary measures to ensure that workers with children up to a specified age, which shall be at least eight years, and carers, have the right to request flexible working arrangements for caring purposes. The duration of such flexible working arrangements may be subject to a reasonable limitation’. Article 3(1)(f) of that directive defines ‘flexible working arrangements’ as ‘the possibility for workers to adjust their working patterns, including through the use of remote working arrangements, flexible working schedules, or reduced working hours’.

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[48](#Footref48)      See judgment of 11 April 2013, *HK Danmark* (C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 64).

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[49](#Footref49)      See, to that effect, judgment of 10 February 2022, *HR Rail* (C‑485/20, EU:C:2022:85, paragraph 43).

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[50](#Footref50)      See judgment of 18 January 2024, *Ca Na Negreta* (C‑631/22, EU:C:2024:53, paragraph 45 and the case-law cited).

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