Opinion of Advocate General Saugmandsgaard Øe delivered on 22 April 2021.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:324
• Date: 22 April 2021
• Celex Number: 62019CC0824
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 22 April 2021 (1)

Case C‑824/19

TC,

UB

v

Komisia za zashtita ot diskriminatsia,

VA

intervener:

Varhovna administrativna prokuratura

(Request for a preliminary ruling from the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria))

(Reference for a preliminary ruling – Equal treatment in employment and occupation – Discrimination on grounds of disability – Directive 2000/78/EC – Pursuit by a blind person of the activity of professional juror in criminal proceedings – Article 4(1) – Genuine and determining occupational requirement for pursuit of the activity of juror – Rules of criminal procedure – Article 5 – Reasonable accommodation – Charter of Fundamental Rights of the European Union – Article 47 – Right to a fair trial – United Nations Convention on the Rights of Persons with Disabilities – Article 13 – Access to justice)

I. Introduction

1. The present case concerns discrimination on grounds of disability in the workplace. It is concerned with the pursuit of the activity of juror in criminal proceedings, an activity which is pursued in this case for remuneration, and therefore in a professional capacity, by a blind person.

2. The Court is asked to interpret Directive 2000/78/EC, (2) which prohibits discrimination on grounds of disability, in the light of the United Nations Convention of 13 December 2006 on the Rights of Persons with Disabilities (3) (‘the UN Convention’), and to determine whether the total exclusion of a blind person from participating in criminal proceedings as a paid juror can be justified on the basis of Article 4(1) of that directive. The referring court seeks, in particular, to ascertain whether sight constitutes a genuine and determining occupational requirement within the meaning of that provision.

3. The request for a preliminary ruling was made in the context of proceedings between, on the one hand, TC and UB, respectively the court president and a judge of a criminal chamber, and, on the other hand, the Komisia za zashtita ot diskriminatsia (Commission for Protection against Discrimination, Bulgaria) and VA, a blind juror of that chamber. TC and UB challenged the decision of the Commission for Protection against Discrimination imposing fines on them for discriminating on grounds of disability against VA, whom they had refused to allow to sit in court.

4. This case must lead the Court to strike a balance between, on the one hand, the obligation of the State as employer to take appropriate measures to integrate disabled persons into the working environment, in the present case to pursue the paid activity of juror in criminal proceedings, and, on the other hand, national rules of criminal procedure intended to ensure a fair trial.

5. Following my assessment, I shall propose that the Court should rule that, in the case of a paid activity, Member States must, wherever possible, interpret their rules of criminal procedure in such a way as to allow blind persons to participate as jurors in criminal proceedings. With particular reference to a person, such as the one in the main proceedings, who meets the criteria laid down in national law to be a juror in such cases and who has been admitted to work in that capacity, I would propose that the Court rule that the total exclusion of that person from participation in such proceedings, on the basis of an assessment of her presumed inability to perform the duties of a juror on account of disability, is disproportionate and constitutes discrimination contrary to Directive 2000/78, read in the light of the UN Convention.

II. Legal framework

A. International law

6. Article 5(2) of the UN Convention prohibits all discrimination on the basis of disability, in particular in the context of employment, under Article 27 thereof, and provides that States Parties are required to adopt reasonable accommodation measures in order to promote equality and eliminate discrimination.

7. Article 13 of that convention, entitled ‘Access to justice’, provides, in paragraph 1 thereof:

‘States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.’

B. EU law

8. Recitals 17, 20 and 23 of Directive 2000/78 state:

‘(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.

…

(23) In very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate. Such circumstances should be included in the information provided by the Member States to the Commission.’

9. Article 2 of that directive, entitled ‘Concept of discrimination’, states:

‘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;

…

5. This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.’

10. Article 3(1) of that directive, entitled ‘Scope’, is worded as follows:

‘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:

(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;

…

(c) employment and working conditions, including dismissals and pay;

…’

11. Article 4 of that directive, entitled ‘Occupational requirements’, provides, in paragraph 1 thereof:

‘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.’

12. Article 5 of Directive 2000/78, entitled ‘Reasonable accommodation for disabled persons’, provides:

‘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. Bulgarian law

13. Article 6 of the Constitution of the Republic of Bulgaria (DV No 56 of 13 July 1991, as amended, DV No 12 of 6 February 2007) provides, in paragraph 1 thereof:

‘(1) All individuals are born free and equal in dignity and rights.’

14. Pursuant to Article 48 of that constitution:

‘(1) Citizens shall have the right to work. The State shall ensure that the conditions for the exercise of this right are established.

(2) The State shall secure the conditions for the exercise of the right to work for persons with physical and mental disabilities …’

15. Article 4(1) of the Zakon za zashtita ot diskriminatsia (Law on protection against discrimination) (DV No 86 of 30 September 2003, as amended, DV No 26 of 7 April 2015, ‘the Law on discrimination’) prohibits any direct or indirect discrimination based, inter alia, on disability.

16. Under Article 7(1)(2) of the Law on discrimination:

‘The following shall not constitute discrimination:

The difference in treatment of a person based on a characteristic related to one of the grounds referred to in Article 4(1), where that characteristic constitutes a genuine and determining occupational requirement by reason of the nature of a particular occupation or activity or of the context in which that occupation [or that activity] is carried out, the objective is legitimate and the requirement does not go beyond what is necessary to achieve it’.

17. Pursuant to Article 66 of the Zakon za sadebnata vlast (Law on the judiciary) (DV No 64 of 7 August 2007, as amended, DV No...