Judgments nº C-406/15 of Court of Justice, March 09, 2017
|Issuing Organization:||Court of Justice|
|Resolution Date:||March 09, 2017|
(Reference for a preliminary ruling - Social policy - Equal treatment in employment and occupation - United Nations Convention on the Rights of Persons with Disabilities - Articles 5 and 27 - Directive 2000/78/EC - Article 7 - Enhanced protection in the event of dismissal of employees with disabilities - No such protection for civil servants with disabilities - General principal of equal treatment)
In Case C-406/15,
REQUEST for a preliminary ruling under Article 267 TFEU from the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria), made by decision of 16 July 2015, received at the Court on 24 July 2015, in the proceedings
Izpalnitelen direktor na Agentsiata za privatizatsia i sledprivatizatsionen control,
Varhovna administrativna prokuratura,
THE COURT (Second Chamber),
composed of M. Ilešič, President of the Chamber, A. Prechal (Rapporteur), A. Rosas, C. Toader and E. Jarašiūnas, Judges,
Advocate General: H. Saugmandsgaard Øe,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
- the Bulgarian Government, by D. Drambozova and E. Petranova, acting as Agents,
- the European Commission, by D. Martin and D. Roussanov, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 27 October 2016,
gives the following
1 This request for a preliminary ruling concerns the interpretation of Articles 4 and 7 of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16), and of Article 5(2) 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 UN Convention’).
2 The request has been made in proceedings between Ms Petya Milkova and the Izpalnitelen direktorna Agentsiata za privatizatsia i sledprivatizatsionen kontrol (Executive Director of the Privatisation and Post-Privatisation Control Agency, Bulgaria) (‘the Agency’) concerning Ms Milkova’s dismissal.
3 Article 1 of the UN Convention provides:
‘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.’
4 Under Article 5 of that convention, entitled ‘Equality and non-discrimination’:
‘1. States Parties recognise that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.
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.
In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present convention.’
5 Article 27 of the UN Convention, headed ‘Work and employment’, provides as follows:
‘States Parties recognise the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realisation of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia:
(h) promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures;
6 Recital 27 of Directive 2000/78 states:
‘In its Recommendation 86/379/EEC of 24 July 1986 on the employment of disabled people in the Community [OJ 1986 L 225, p. 43], the Council established a guideline framework setting out examples of positive action to promote the employment and training of disabled people, and in its Resolution of 17 June 1999 on equal employment opportunities for people with disabilities [OJ 1999 C 186, p. 3], affirmed the importance of giving specific attention inter alia to recruitment, retention, training and lifelong learning with regard to disabled persons.’
7 According to Article 1, the purpose of Directive 2000/78 is ‘to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment’.
8 Article 2 of that directive, headed ‘Concept of discrimination’, provides:
‘1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:
(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or
(ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.
9 Under Article 3(1) of that directive:
‘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;
10 Article 4 of that directive, entitled ‘Occupational requirements’, provides in paragraph 1:
‘Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’
11 Article 7 of Directive 2000/78, headed ‘Positive action’, is worded as follows:
‘1. With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1.
With regard to disabled persons, the principle of equal treatment shall be without prejudice to the right of Member States to maintain or adopt provisions on the protection of health and safety at work or to measures aimed at creating or maintaining provisions or facilities for safeguarding or promoting their integration into the working environment.’
12 The kodeks na truda (Labour Code) (DV No 26 of 1 April 1986 and No 27 of 4 April 1986), which entered into force on 1 January 1987, is, according to Article 1, the main legislative measure regulating ‘labour relationships between worker or employee and employer and other relationships immediately related to them’.
13 Article 328 of the Labour Code, governing the termination of contracts of employment by the employer after notice has been given, provides, in paragraph 1, item 2:
‘An employer may terminate a contract of employment by issuing written notice to the worker or employee; such notice must comply with the periods provided for in Article 326(2), in the following cases:
in the event of the closure of part of the undertaking or the abolition of posts;
14 Article 333 of the Labour Code, entitled ‘Protection in the event of dismissal’, provides in paragraph 1, item 3:
‘In the cases defined in Article 328(1), items 2, 3, 5 and 11, and in Article 330(2), item 6, the employer may carry out dismissals only with the prior authorisation of the labour inspectorate in each case:
[in the case of] a worker suffering from an illness defined in a decree issued by the Minister for Health;
15 The zakon za administratsiata (Law on Public Administration) (DV No 130 of 5 November 1998), which entered into force on 6 December...
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