DW v Nobel Plastiques Ibérica SA.

• Jurisdiction: European Union
• Celex Number: 62018CJ0397
• ECLI: ECLI:EU:C:2019:703
• Date: 11 September 2019
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-397/18

JUDGMENT OF THE COURT (First Chamber)

11 September 2019 (*1)

(Reference for a preliminary ruling — Social policy — Directive 2000/78/EC — Equal treatment in employment and occupation — Article 2(2)(b)(ii) and Article 5 — Prohibition of any discrimination based on a disability — Worker particularly susceptible to occupational risks within the meaning of national law — Existence of a ‘disability’ — Dismissal for objective reasons based on criteria of productivity, multi-skilling in the undertaking’s posts and absenteeism — Particular disadvantage for disabled persons — Indirect discrimination — Reasonable accommodation — Individual who is not competent, capable and available to perform the essential functions of the post concerned)

In Case C‑397/18,

REQUEST for a preliminary ruling pursuant to Article 267 TFEU from the Juzgado de lo Social no 3 de Barcelona (Social Court No 3, Barcelona, Spain), made by decision of 30 May 2018, received at the Court on 15 June 2018, in the proceedings

DW

v

Nobel Plastiques Ibérica SA,

intervener:

Fondo de Garantía Salarial (Fogasa),

Ministerio Fiscal,

THE COURT (First Chamber),

composed of J.-C. Bonichot, President of the Chamber, C. Toader, A. Rosas, L. Bay Larsen and M. Safjan (Rapporteur), Judges,

Advocate General: G. Pitruzzella,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– DW, by J. Pérez Jiménez, abogado,

– Nobel Plastiques Ibérica SA, by D. Sanahuja Cambra, abogada,

– the Spanish Government, by L. Aguilera Ruiz, acting as Agent,

– the European Commission, by D. Martin and P. Němečková, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Council 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).

2 The reference has been made in proceedings between DW and Nobel Plastiques Ibérica SA concerning the lawfulness of DW’s dismissal on objective grounds.

Legal context

International law

3 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’), 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.’

4 Under 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.’

5 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; …’

EU law

6 According to recitals 11, 12, 16, 17, 20 and 21 of Directive 2000/78: ‘(11) Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons. (12) To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community. This prohibition of discrimination should also apply to nationals of third countries but does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of third-country nationals and their access to employment and occupation. … (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.’

7 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.’

8 Article 2 of that directive, headed ‘Concept of discrimination’, provides, in paragraphs 1 and 2: ‘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.’

9 Article 3 of that directive, headed ‘Scope’, provides, in paragraph 1: ‘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 5 of Directive 2000/78, headed ‘Reasonable accommodation for disabled persons’, reads as follows: ‘In order to guarantee compliance with the principle of equal treatment for 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.’

Spanish law

11 Article 25 of Ley 31/1995 de Prevención de Riesgos Laborales (Law 31/1995 on the Prevention of Occupational Risks) of 8 November 1995 (BOE No 269 of 10 November 1995, p. 32590), headed ‘Protection of workers particularly susceptible to certain risks’, provides, in paragraph 1: ‘The employer shall...