The decision of the Court of Justice in TC and UB v Komisia za zashtita ot diskriminatsia (TC and UB) can be considered a milestone in the line of case law on the Employment Equality Directive ensuing from the conclusion by the EU of the UN Convention on the Rights of Persons with Disabilities (CRPD). In pursuing compliance with the CRPD and in line with previous decisions such as Tartu Vangla, the Court construes reasonable accommodation as an essential legal tool to counter barriers that hinder full participation of persons with disabilities in the justice system.

The Decision … 

TC and UB arose from a request for a preliminary ruling from the Bulgarian Supreme Administrative Court in a case between the judges TC and UB, on the one hand, and the Commission for Protection against Discrimination and VA, a blind juror of the Sofia District Court.

VA had been assigned to the chamber of Judge UB but had never been invited to participate in any oral procedures in criminal proceedings. For that reason, she asked, without success, to be moved to another judge. VA then lodged a complaint with the Commission for Protection against Discrimination alleging that she had been discriminated against on the ground of disability. The Commission ruled in favour of VA, but TC and UB challenged that decision before the national courts, claiming that a difference in the treatment of VA was justifiable because of ‘the nature of the duties of jurors, the need for particular physical characteristics and the existence of a legal objective, namely compliance with the principles of the Code of Criminal Procedure’ (para. 25). On appeal, the Bulgarian Supreme Administrative Court requested a preliminary ruling. In essence, it asked whether sight can be conceived of as a ‘genuine occupational requirement’ for a juror and with the difference in treatment of VA falling within the remit of Article 4(1) of the Employment Equality Directive.

In answering such question, the Court confirmed that Article 4(1) should be interpreted strictly (para. 45) and ultimately held that the Employment Equality Directive precludes the total exclusion of a blind juror from criminal proceedings, without having evaluated whether they can fulfil their jury duties after having been reasonably accommodated.

… And Its Significance

In its reasoning, the Court approaches reasonable accommodation as a tool to remove the disadvantage faced by persons with disabilities (paras. 55 et seq.). Interestingly, the Court cursorily refers to the social-contextual definition of disability, adopted since HK Danmark (para. 39), but, as noted elsewhere, when discussing VA’s disability, merely considers her permanent loss of sight, i.e. her impairment. However, the Court does engage with barriers experienced by VA when it discusses reasonable accommodation and by highlighting that ‘material, personal or organisational assistance’ (para. 62) could have allowed her to perform her duties. Notably, by explicitly referring to Articles 5(3) and 27 CRPD and their ‘inclusive purpose’, the Luxembourg judges hint at the conceptualisation of ‘inclusive equality’ elaborated by the CRPD Committee in General Comment No. 6. In that regard, this decision represents a step further in the progressive alignment of EU equality law with the CRPD and its human rights model of disability – alignment that seems to have been brought forward in subsequent judgments such as such as HR Rail and Ca Na Negreta. 

The significance of TC and UB also lies in the recognition of persons with disabilities as professionals and active contributors to the judicial system. In fact, while the Court made no explicit reference to Article 13 CRPD, this decision advances the protection of the right to access to justice for persons with disabilities across the EU. As discussed by Waddington, given that the activity of a juror in Bulgaria is a ‘paid, professional activity’, the case fell squarely into the domain of EU law and the application of the Employment Equality Directive was clean-cut (paras 36-37). It is not obvious whether the Court would have engaged with the matter in a case where jury activity is, for instance, a remunerated civic duty. Yet, TC and UB epitomises the reach of EU law in domains traditionally reserved to Member States, and opens up interesting perspectives on the role of the Employment Equality Directive in protecting the rights of persons with disabilities in different ambits of life.