Fag og Arbejde (FOA) v Kommunernes Landsforening (KL).
Date: 2014-12-18
32. According to the case-law of the Court, the fundamental rights which form an integral part of the general principles of EU law include the general principle of non-discrimination. That principle is therefore binding on Member States where the national situation at issue in the main proceedings falls within the scope of EU law (see, to that effect, judgment in Chacón Navas , C‑13/05, EU:C:2006:456, paragraph 56).
34. As regards more specifically Article 19 TFEU, it follows from the case-law of the Court that that article contains only the rules governing the competencies of the EU and that, since it does not refer to discrimination on grounds of obesity as such, it cannot constitute a legal basis for measures of the Council of the European Union to combat such discrimination (see, by analogy, judgment in Chacón Navas , EU:C:2006:456, paragraph 55).
36. According to the case-law of the Court, the scope of Directive 2000/78 should not be extended by analogy beyond the discrimination based on the grounds listed exhaustively in Article 1 thereof (see judgments in Chacón Navas , EU:C:2006:456, paragraph 56, and Coleman , C‑303/06, EU:C:2008:415, paragraph 46).
37. Consequently, obesity cannot as such be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination (see, by analogy, judgment in Chacón Navas , EU:C:2006:456, paragraph 57).
39. In that context, the provisions of the Charter of Fundamental Rights of the European Union are likewise inapplicable in such a situation (see, to that effect, judgment in Åkerberg Fransson , C‑617/10, EU:C:2013:105, paragraphs 21 and 22).
45. In that regard, it should be recalled that, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling. The presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases, where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgments in Åkerberg Fransson , EU:C:2013:105, paragraphs 39 and 40, and B. , C‑394/13, EU:C:2014:2199, paragraph 19).
48. Moreover, a national court is not prohibited from referring to this Court for a preliminary ruling a question the answer to which leaves no scope for reasonable doubt (see judgment in Painer , C‑145/10, EU:C:2011:798, paragraph 64 and the case-law cited).
53. Following the ratification by the European Union 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 (OJ 2010 L 23, p. 35), the Court held that the concept of ‘disability’ must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers (see judgments in HK Danmark , EU:C:2013:222, paragraphs 37 to 39; Z. , C‑363/12, EU:C:2014:159, paragraph 76; and Glatzel , C‑356/12, EU:C:2014:350, paragraph 45).
57. In addition, the definition of the concept of ‘disability’ within the meaning of Article 1 of Directive 2000/78 comes before the determination and assessment of the appropriate accommodation measures referred to in Article 5 of the same directive. According to recital 16 of Directive 2000/78, such measures are intended to accommodate the needs of disabled persons and they are therefore the consequence, not the constituent element, of the concept of ‘disability’ (see, to that effect, judgment in HK Danmark , EU:C:2013:222, paragraphs 45 and 46). Therefore, the mere fact that such accommodation measures may not have been taken in respect of Mr Kaltoft does not mean that he could not be a disabled person within the meaning of the directive referred to.
59. However, in the event that, under given circumstances, the obesity of the worker concerned entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, obesity can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78 (see, to that effect, judgment in HK Danmark , EU:C:2013:222, paragraph 41).
60. Such would be the case, in particular, if the obesity of the worker hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility or the onset, in that person, of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity.