Petya Milkova v Izpalnitelen direktor na Agentsiata za privatizatsia i sledprivatizatsionen kontrol.
Date: 2017-03-09
34


As a preliminary point, it should be recalled that the purpose of Directive 2000/78, as stated in Article 1 thereof, is to lay down a general framework for combating discrimination, as regards employment and occupation, on any of the grounds referred to in that article, which include disability. In that regard, as is apparent in particular from Article 2(1) of that directive, the principle of equal treatment which it affirms applies by reference to those grounds listed exhaustively in Article 1 (judgments of 7 July 2011, Agafiţei and Others, C‑310/10, EU:C:2011:467, paragraph 34, and of 21 May 2015, SCMD, C‑262/14, not published, EU:C:2015:336, paragraph 29).
36


In the first place, the concept of ‘disability’ within the meaning of Directive 2000/78 has to 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 (judgment of 1 December 2016, Daouidi, C‑395/15, EU:C:2016:917, paragraph 42 and the case-law cited).
42


Thus, it does not appear that the national legislation at issue in the main proceedings establishes a difference of treatment on grounds of disability, in terms of the combined provisions of Article 1 and Article 2(2)(a) of Directive 2000/78, since it uses a criterion that is not inseparably linked to disability (see, by analogy, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraphs 72 to 74).
43


Furthermore, it does not appear from the file before the Court that the national legislation at issue in the main proceedings, albeit formulated in neutral terms, that is to say, by reference to other criteria — in the present case, the nature of the employment relationship — which are not related to the protected characteristic — in the present case, disability — would lead to the result that particularly persons possessing that characteristic are put at a disadvantage, involving indirect discrimination within the meaning of the Court’s case-law on that concept (see, to that effect, judgment of 18 March 2014, Z., C‑363/12, EU:C:2014:159, paragraph 53).
44


Finally, as regards discrimination on the basis of the employment relationship itself, the Court has held that such discrimination does not fall within the general framework laid down by Directive 2000/78 (see, to that effect, judgment of 7 July 2011, Agafiţei and Others, C‑310/10, EU:C:2011:467, paragraphs 31 to 35).
46


In that regard, it must be recalled that that provision allows a distinction to be established, based on disability, provided that it forms part of provisions on the protection of health and safety at work or measures aimed at creating or maintaining provisions or facilities for safeguarding or promoting the integration of persons with disabilities into the working environment. Thus, such a distinction in favour of people with disabilities contributes to achieving the aim of Directive 2000/78, as laid down in Article 1 of that directive, that is to say, the fight against discrimination, in the present case, based on disability as regards employment and occupation, with a view to putting into effect in the Member State concerned the principle of equal treatment (see, to that effect, judgment 17 July 2008, Coleman, C‑303/06, EU:C:2008:415, paragraph 42).
47


The purpose of Article 7(2) of Directive 2000/78 is to authorise specific measures aimed at effectively eliminating or reducing actual instances of inequality affecting people with disabilities, which may exist in their social lives and, in particular, their professional lives, and to achieve substantive, rather than formal, equality by reducing those inequalities.
48


That interpretation is supported by the UN Convention which, in accordance with settled case-law, may be relied on for the purposes of interpreting Directive 2000/78, which must, as far as possible, be interpreted in a manner that is consistent with that convention (judgment of 1 December 2016, Daouidi, C‑395/15, EU:C:2016:917, paragraph 41 and the case-law cited).
50


It follows from the foregoing that the legislation at issue in the main proceedings comes within the scope of Article 7(2) of Directive 2000/78 and, as such, pursues an objective covered by EU law, for the purposes of the Court’s settled case-law adopted in order to determine whether such a national measure falls within the implementation of EU law within the meaning of Article 51(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see, to that effect, judgments of 6 March 2014, Siragusa, C‑206/13, EU:C:2014:126, paragraphs 22 and 25 and the case-law cited, and of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 37).
51


According to established case-law, where Member States act within the scope of EU law, they are required to respect fundamental rights defined in the context of the European Union and the general principles of EU law (see, to that effect, judgment of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 33).
52


The fact that, as is apparent from Article 7(2) of Directive 2000/78, Member States are not required to maintain or adopt measures such as those provided for under that provision, but have discretion in that regard, does not permit the conclusion that rules adopted by Member States, such as those at issue in the main proceedings, fall outside the scope of EU law (see, by analogy, judgments of 21 December 2011, N. S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 64 to 69, and of 22 October 2013, Sabou, C‑276/12, EU:C:2013:678, paragraph 26).
53


In that regard, it must also be recalled that where EU legislation allows Member States a choice between various methods of implementation, the Member States must exercise their discretion in accordance with general principles of EU law, including the principle of equal treatment (see, to that effect, judgments of 20 June 2002, Mulligan and Others, C‑313/99, EU:C:2002:386, paragraph 46, and of 16 July 2009, Horvath, C‑428/07, EU:C:2009:458, paragraph 56, and order of 16 January 2014, Dél-Zempléni Nektár Leader Nonprofit, C‑24/13, EU:C:2014:40, paragraph 17).
54


It follows that the national legislation applicable to the main proceedings falls within the implementation of EU law, which means that, in the present case, the general principles of EU law, including the principle of equal treatment, and of the Charter are applicable (see, to that effect, judgment of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 33).
55


The principle of equal treatment is a general principle of EU law, now enshrined in Articles 20 and 21 of the Charter, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgments of 22 May 2014, Glatzel, C‑356/12, EU:C:2014:350, paragraph 43, and of 21 December 2016, Vervloet and Others, C‑76/15, EU:C:2016:975, paragraph 74 and the case-law cited). A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment (judgment of 22 May 2014, Glatzel, C‑356/12, EU:C:2014:350, paragraph 43 and the case-law cited).
56


With regard to the requirement relating to the comparability of the situations for the purpose of determining whether there is an infringement of the principle of equal treatment, that requirement must be assessed in the light of all the factors characterising those situations (see, inter alia, judgments of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 25, and of 1 October 2015, O, C‑432/14, EU:C:2015:643, paragraph 31).
57


It must also be made clear, first, that it is required not that the situations be identical, but only that they be comparable and, secondly, that the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the objective and of the aim of the national legislation creating the distinction at issue (see, to that effect, judgments of 10 May 2011, Römer, C‑147/08, EU:C:2011:286, paragraph 42; of 12 December 2013, Hay, C‑267/12, EU:C:2013:823, paragraph 33; of 15 May 2014, Szatmári Malom, C‑135/13, EU:C:2014:327, paragraph 67; and of 1 October 2015, O, C‑432/14, EU:C:2015:643, paragraph 32).
58


Thus, the comparison of the situations must be based on an analysis focusing on all the rules of national law governing, on the one hand, the positions of employees with a particular disability and, on the other, the positions of civil servants with the same disability, as they result from the relevant domestic provisions applicable to the present case, taking into account the purpose of the protection against the dismissal at issue in the main proceedings.
59


In that regard, it must be stated, first, that, by raising the special nature of the protection provided under Bulgarian law, the referring court makes it clear that the purpose of that protection is to ensure that a specialised body assesses the impact of the dismissal on the health of the person concerned and decides whether or not to authorise that dismissal.
60


Thus, the purpose of legislation such as that at issue in the main proceedings is to protect a worker, not on the basis of the type of legal connection which constitutes the employment relationship, but on the basis of the worker’s state of health.
61


Therefore, the distinction made by such legislation between employees with a particular disability and civil servants with the same disability does not appear to be sufficient in the light of the aim pursued by that legislation, all the more so since both those categories of people with disabilities may be employed by the same administration.
62


As regards the alleged difference in treatment in the main proceedings, it is for the national court to determine whether all the applicable national rules of law provide a level of protection for civil servants with disabilities which is equivalent to that provided for under the mechanism for prior authorisation from the labour inspectorate in relation to employees with disabilities, employed in the public administration sector.
63


Finally, if the referring court were to find that there is a difference in treatment between those groups of persons who are in a comparable situation, it would ultimately fall to that court, which alone has jurisdiction to assess the facts at issue in the dispute before it and to interpret the applicable national legislation, to determine whether, and to what extent, legislation of a Member State, such as that at issue in the main proceedings, is objectively justified in the light of the principle of equal treatment.
66


In that regard it must be recalled that, according to settled case-law, where discrimination contrary to EU law has been established, as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category (judgments of 26 January 1999, Terhoeve, C‑18/95, EU:C:1999:22, paragraph 57; of 22 June 2011, Landtová, C‑399/09, EU:C:2011:415, paragraph 51; and of 28 January 2015, ÖBB Personenverkehr, C‑417/13, EU:C:2015:38, paragraph 46). Disadvantaged persons must therefore be placed in the same position as persons enjoying the advantage concerned (judgment of 11 April 2013, Soukupová, C‑401/11, EU:C:2013:223, paragraph 35).
67


In such a situation, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and apply to members of the disadvantaged group the same arrangements as those enjoyed by the persons in the other category (judgments of 12 December 2002, Rodríguez Caballero, C‑442/00, EU:C:2002:752, paragraph 43; of 7 September 2006, Cordero Alonso, C‑81/05, EU:C:2006:529, paragraph 46; and of 21 June 2007, Jonkman and Others, C‑231/06 to C‑233/06, EU:C:2007:373, paragraph 39). That obligation persists regardless of whether or not the national court has been granted competence under national law to do so (judgment of 7 September 2006, Cordero Alonso, C‑81/05, EU:C:2006:529, paragraph 46).
68


In that regard, the Court has stated that that approach is intended to apply only if there is a valid point of reference (judgments of 19 June 2014, Specht and Others, C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 96, and of 28 January 2015, ÖBB Personenverkehr, C‑417/13, EU:C:2015:38, paragraph 47). That is so in the case in the main proceedings.
69


In the event that the referring court finds that the principle of equal treatment has not been adhered to, it follows that Article 7(2) of Directive 2000/78, read in the light of the UN Convention, precludes legislation of a Member State such as that at issue in the main proceedings. The system applicable to employees with disabilities, favoured by the current system, is therefore the only valid point of reference. Thus, re-establishing equal treatment, in a situation such as that at issue in the main proceedings, involves granting civil servants with disabilities, disadvantaged by the current system, the same benefits as those enjoyed by employees with disabilities, favoured by that system, in particular in respect of specific advance protection in the event of dismissal and involving the obligation, for the employer, to seek prior authorisation from the labour inspectorate before terminating the employment relationship (see, by analogy, judgment of 28 January 2015, ÖBB Personenverkehr, C‑417/13, EU:C:2015:38, paragraph 48).
72


According to the Court’s settled case-law, the requirements concerning the content of a request for a preliminary ruling are expressly set out in Article 94 of the Court’s Rules of Procedure, of which the national court should, in the context of the cooperation instituted by Article 267 TFEU, be aware and which it is bound to observe scrupulously (judgments of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 19, and of 10 November 2016, Private Equity Insurance Group, C‑156/15, EU:C:2016:851, paragraph 61 and the case-law cited).
73


Thus, the court making the reference must set out the precise reasons that led it to raise the question of the interpretation of certain provisions of EU law and to consider it necessary to refer questions to the Court for a preliminary ruling. The Court has previously held that it is essential that the national court should give at the very least some explanation of the reasons for the choice of the EU law provisions which it seeks to have interpreted and of the link it establishes between those provisions and the national legislation applicable to the proceedings pending before it (judgments of 10 March 2016, Safe Interenvíos, C‑235/14, EU:C:2016:154, paragraph 115, and of 10 November 2016, Private Equity Insurance Group, C‑156/15, EU:C:2016:851, paragraph 62).
74


It should be noted in that regard that the information provided in requests for a preliminary ruling serves not only to enable the Court to provide useful answers to the questions submitted by the referring court, but also to ensure that the governments of the Member States and other interested parties have the opportunity to submit observations, in accordance with Article 23 of the Statute of the Court of Justice of the European Union (judgment of 10 November 2016, Private Equity Insurance Group, C‑156/15, EU:C:2016:851, paragraph 63, and, to that effect, judgment of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 20).
76


In the light of those shortcomings, the order for reference does not provide the governments of the other Member States or other interested parties within the meaning of Article 23 of the Statute of the Court of Justice with the opportunity to submit useful observations on that second question or the Court to provide the referring court with a useful answer to that question to enable it to resolve the dispute pending before it (see, by analogy, judgment of 10 November 2016, Private Equity Insurance Group, C‑156/15, EU:C:2016:851, paragraph 66).