Persons with disabilities enjoy the right to live independently and be included in the community (Article 19 UN Convention of the Rights of Persons with Disabilities (CRPD)). For that purpose, personal assistance is essential (Article 19b CRPD; CRPD General Comment 5, 16(d)). Up to now, emphasis has been primarily on the right to have a personal assistant, with a focus on its implementation (ECtHR, Diaconeasa v. Romania), conditions for access (CRPD, S.K. v. Finland; ECtHR, Jivan v. Romania), and its relationship to care by relatives (CRPD, Maria Simona Bellini v. Italy). In J.M.P. v. AP Assistenzprofis (7 December 2023), the Court of Justice of the EU (“the Court”) has added another perspective, bringing the rights of the (future) personal assistants into focus. 

Facts and central question

The Court addressed a preliminary question by the German Federal Labour Court regarding AP Assistenzprofis’ rejection of Ms J.M.P., who had applied for a job as the personal assistant of a disabled young woman. The refusal was based on the fact that Ms J.M.P.’s age was not within the preferred age range of 18 to 30 years. The German judge wanted to hear from the CJEU to what extent the Employment Equality Directive allows for justifying such direct age-based discrimination.

While the Employment Equality Directive has primarily been discussed in this series for its prohibition of disability-based discrimination, this case takes a different turn. Here, a person with a disability applies age-based criteria when hiring a personal assistant, using their disability as justification.  Since the EU and its Member States are parties to the CRPD, the key question is how the prohibition of discrimination under the Employment Equality Directive aligns with the CRPD’s right to freely choose an assistant.

Allowed if necessary

The Court followed the Advocate General (AG)’s approach and did not tap into what was perhaps the expected approach of the ‘genuine and determining occupational requirements’ (Art. 4(1) Employment Equality Directive). Instead, both argued that the case ought to be tested under Article 2(5) of the Directive, allowing “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.” The German law tested against this provision states that services intended to promote participation in society must respect a person’s legitimate wishes, including personal circumstances, age, sex, family and religious and philosophical needs.

The Court concluded “that Article 2(5) of the Employment Equality Directive, read in the light of Article 26 of the Charter [of Fundamental Rights of the EU] and Article 19 of the [CRPD], must be interpreted as not precluding the recruitment of a person providing personal assistance from being subject to an age requirement pursuant to national legislation under which account is to be taken of the individual wishes of persons who are entitled to personal assistance services as a result of their disability, if such a measure is necessary for the protection of the rights and freedoms of others” (para 68). However, the Court leaves it to the national judge to verify, having regard to all the facts of the main proceedings, whether the result of the measure is necessary (para 66). Given direct age-based discrimination, the German judge must balance the applicant’s right to protection from age discrimination and the disabled person’s right to protection from disability discrimination.

But appropriate?

The Court is mild for (directly discriminatory) preferences of persons with disabilities, in particular in comparison to other cases where the preferences of, for example, clientele were approached with a much higher level of scrutiny (Feryn). This is in line with the position of the CRPD Committee, which has repeatedly emphasised that personal assistance services should be gender-, age-, and culturally appropriate (CRPD, Second and Third Concluding Observation on Peru, §39; CRPD, Concluding Observation on Mexico, para 44) and that free choice is essential (CRPD General Comment 5, 16(d)). After all, a personal assistant becomes part of the person’s life and interacts with its most intimate aspects. However, the question remains whether allowing direct discrimination is appropriate to reconcile the right to independent living with anti-discrimination law. Empathy with age might also meet gender-, age-, and cultural appropriateness without introducing new forms of discrimination.