Facts

C.M., a teacher with a disability, requested a transfer to the province of Catanzaro as part of the Italian public school staff mobility programme for the 2018/2019 school year. The scheme prioritised transfers for individuals with certain (degrees of) disabilities among the available positions. Requests for transfers within the same province were (mostly, § 20-21 & 28) granted before those for transfers between provinces.

CM’s request was denied as all vacant positions in Catanzaro had been filled through internal transfers. The Italian court concerned asked the Court two preliminary questions: (1) whether the priority to internal transfers violated the obligation to provide reasonable accommodation (Article 5 Directive 2000/78); and (2) whether this arrangement constituted (unjustified) indirect discrimination based on disability (Article 2 Directive 2000/78)?

Reasonable Accommodation

First, the Court considered the definition of reasonable accommodation, interpreted in light of Article 2 of the UN Convention on the Rights of Persons with Disabilities (CRPD) (§ 50-51). Reasonable accommodation refers to modifications and adjustments ‘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’ (§ 51). In the workplace, this may include reassignment to another position (as established in HR Rail and Ca Na Negreta; § 52, 58).

The Court noted that ‘reasonable accommodation’ should be ‘understood broadly, as covering all measures that enable the needs of a person with a disability to be met in a particular case’ (§ 61). However, the Court reasoned that as the scheme provides priority automatically for those with certain (levels of) disability, it cannot constitute a reasonable accommodation (§ 61-64). A reasonable accommodation has to be based on ‘a concrete understanding of the needs specific to that worker’s situation and the difficulties and obstacles which that worker encounters in accessing and performing his or her work’ (§ 56).

Indirect Discrimination (and Positive Action)

Next, the Court considered whether the scheme could be indirectly discriminatory, i.e., liable to result in a ‘particular disadvantage to the detriment of workers with disabilities’ (§ 68-70). The scheme instead appears beneficial only to persons with disabilities (§ 73-74). However, as it distinguishes between different disabilities and the Commission had argued it to be positive action (Article 7 Directive 2000/78), the Court was also invited to consider the case from this angle (§ 78-84). It succinctly rejected this invitation, holding that it lacked information concerning the scheme’s objective (§ 82-83).

Commentary

Although the Court’s conclusion on this specific measure is understandable, it leaves broader questions unresolved. The UN Committee similarly emphasises that reasonable accommodations should be individualised and context-sensitive (General Comment No. 6, §25-26). However, focusing on a measure’s automated character may overlook measures that do meet the substantive criteria for reasonable accommodations. For example, students with specific disabilities often automatically receive exam accommodations, such as extended exam time when they qualify for accommodations (see Lammens, Spinoy, and Willems). While these should be accompanied by a further individualized assessment (and should not replace this assessment), they still constitute measures to avoid obstacles indicated by a person with a specific disability and therefore ‘enable the needs of a person with a disability to be met’ in a particular context.

Automated measures could also constitute positive action. While reasonable accommodations address individuals’ needs and are mandatory under EU law, positive action targets the underrepresentation of protected groups and remains voluntary (see Waddington and Bell). Following significant rulings regarding positive action for women in employment (e.g., Kalanke, Marschall, Badeck, Abrahamsson, and Lommers), subsequent silence has created considerable uncertainty, particularly regarding other protected groups (which the Court has only briefly addressed: see Milkova on disability; Cresco Investigation on religion and belief).

Zirvatta demonstrates that the Court continues to regard positive action as a justification for discrimination (§ 81-83). Yet positive measures may be necessary, not simply justifiable, to tackle deep-rooted and systemic discrimination (see Fredman). Unfortunately, the Court missed this opportunity to provide clearer guidance.

Facts and relevance

Bervidi concerned a parent, G.L., who was a caregiver for her minor child ‘with extensive and comprehensive needs arising from disability’ (para 20). She had asked her employer for a permanent appointment with fixed working hours which would enable her to meet her child’s care needs, which included a programme at a fixed time in the afternoon. An Italian court considering the case asked the Court of Justice whether the prohibition of indirect discrimination (art. 2.2.b) and the provisions on reasonable accommodation (art. 2.2.b and 5) in the Employment Equality Directive applied to G.L., herself not a person with a disability.

The Court of Justice had already found that the prohibition of discrimination applies when the alleged discrimination occurs on the basis of disability, regardless of whether the alleged victim is themselves a person with a disability (i.e., discrimination by association). In Coleman, it had held that the protection against direct discrimination and harassment apply to the parent of a child with a disability when the discrimination is based on her child’s disability. In the CHEZ case, interpreting the Race Equality Directive, the Court had considered that indirect discrimination by association was prohibited under that Directive. However, the Coleman judgment indicated that reasonable accommodation was confined to persons with a disability (at para 39).

Scholars such as Lisa Waddington and Andrea Broderick had criticised the decision for not complying with the requirements of the CRPD. The CRPD Committee had considered all forms of discrimination by association to be prohibited by the CRPD (e.g., in its General Comment on equality and non-discrimination, para 17; and in its decision in Bellini v. Italy). Moreover, in reaching this conclusion, the Court of Justice overlooked the vital role of reasonable accommodations in families where someone has a disability, regardless of which person in the family they are provided to.

The judgment

The Court in Bervidi, firstly, indicated that the Employment Equality Directive should be read in light of the CRPD, including its Article 7 on the rights of children with disabilities, and Articles 24 and 26 of the Charter of Fundamental Rights of the EU on the rights of the child and of persons with disabilities. Reaffirming its prior decision in CHEZ, the Court confirmed that indirect discrimination by association based on disability is prohibited (para 40-66). Referring to the rights of children and persons with disabilities, case law from the European Court of Human Rights, and the views of the CRPD Committee, it concluded that this prohibition applies to employees discriminated against because of their assistance in their child (with a disability)’s access to the required care.

Concerning reasonable accommodation, the Court’s reliance on those same sources led it to consider that ‘the employee must be able to provide, to his or her child who has a disability, the assistance that that child requires, which implies an obligation, on the employer, to adapt the working conditions of that employee’ (para 73). The Court explained its seeming change in position by indicating that this question had not been presented in Coleman and that the Charter and CRPD at that time were not yet binding for the EU (para 69-70). Interestingly, it also considered this finding necessary for the effectiveness of the prohibition of indirect discrimination by association (para. 74; see also this author’s previous post on the connection between reasonable accommodation and indirect discrimination in this respect).

A welcome clarification

In Bervidi, the Court further consolidates the effective protection against discrimination based on disability. On indirect discrimination, the judgment reaffirms its prior case law. By centring the CRPD and the rights of children with disabilities in its analysis, the Court was led to the application of reasonable accommodation by association, simultaneously recognizing the interaction between care obligations and work. This provides both a welcome further alignment with the CRPD and the CRPD Committee’s practice, and a more accurate reflection of the interaction between caring obligations in private life and equal access to the workplace (see, by contrast, case C-363/12). This contextualised view of the worker can also be seen in cases concerning sex equality, such as Maïstrellis (para 45) and is prominently present in the Work Life Balance Directive referred to by the Advocate General in his opinion (para 47). Accordingly, the judgment leads to a logical and welcome clarification within EU anti-discrimination law.

The first part of this blog set out the background to and outcome of Denmark’s action for annulment of the EU Directive on adequate minimum wages. Here, we delve into the Court’s reasoning for upholding the validity of Articles 4 and 6, and the rest of Article 5, before discussing the broader implications of the judgment for Social Europe.

Keeping the bulk of the Directive alive: The Court’s reasoning

The Court confirmed that Articles 4, 5 (except the annulled sections) and 6 all fall outside the exclusion of ‘pay’ from EU competence. A common theme in the reasoning related to all three provisions is the emphasis placed on state and collective autonomy for the finding that no direct interference took place.

In respect of Articles 4 and 5, the Court stressed that Member States and social partners retain broad discretion in determining a statutory minimum wage (SMW) and negotiating and concluding collective agreements. It further highlighted that the Directive contains ‘procedural’ requirements rather than prescribing specific results that determine SMW or the outcome or content of collective bargaining. In other words, what made the difference is that EU rules would not directly influence the levels of minimum wages.

In respect of Article 6, the Court found EU countries are still free to introduce (or not introduce) variations or deductions. Article 6 ‘merely requires’ any variations or deductions to comply with non-discrimination and proportionality and thus does not directly interfere in pay levels (para 106).

On the ‘right to association’, the Court took a narrow view of the exclusion as not covering measures governing the right to collective bargaining. This finding was informed, among others, by the existence of separate provisions on the rights to association and collective bargaining in some human rights instruments (such as the EU Charter and European Social Charter). As a result, it confirmed EU competence to legislate on collective bargaining under Article 153(f) TFEU, ‘representation and collective defence of the interests of workers and employers’ (para 136). However, this legal basis requires unanimity among Member States in the Council of the EU to adopt legislation, which is difficult to achieve in practice.

A finding of potentially greater significance is that ‘working conditions’ (Article 153(2)(b) TFEU) can serve as a legal basis for collective bargaining rules. The latter need only to be a means for promoting working conditions, and their effect on representation and collective defence to be ‘ancillary’ to this aim (para 136). In this case, the duty to promote collective bargaining was construed as a means for ensuring the adequacy of minimum wages (which are considered part of working conditions). Using ‘working conditions’ as a legal basis offers a crucial advantage. Aside from the approval of European Parliament, only a qualified majority is needed among Member States in the Council to adopt legislation (i.e., the support of at least 15 out of 27 states,  representing at least 65% of the EU population).

Implications of the judgment for Social Europe

The judgment can be considered a landmark moment in the evolution of Social Europe and its complex relationship with the CJEU. Its significance lies not only in what the Court decided, but equally in the path not taken: by rejecting the full annulment of the Directive, the Court avoided a major setback for (Social) Europe. It is too early to understand the longer-run implications of the judgment, but we can identify some immediate effects.

First, the judgment finally confirms the validity of most of the Directive with its core substance, innovations, and spirit intact, allowing the focus to shift to effective implementation. Second, it adopts an interpretation of the exceptions of ‘pay’ and ‘right to association’ that allows substantial scope for interventions not only in wage-setting but also in collective bargaining. In this sense, the Directive successfully tested the boundaries of what EU law is permitted to do in these areas.

Third, and very importantly, it confirmed that if collective bargaining provisions are related to the objective of promoting ‘working conditions’, a qualified majority (rather than unanimity) suffices. The same reasoning could apply to other legal bases listed in Article 153(1), such as workers’ health and safety or equality between men and women, if collective bargaining is shown to be an effective means to promoting them. This is significant. The judgment opens up legal space here that policy-makers can creatively use to strengthen the social dimension of the European project.

Conclusion

By any measure, the judgment is overall a positive step for Social Europe. Of course, the very fact that the Directive encountered such a strong challenge shows that genuine progress towards Social Europe is often an uphill battle. And while the judgment is a cause for celebration, it is important to avoid complacency. The judgment did not bring by itself any change on the ground and the implementation of the Directive is still a work in progress. But the CJEU has opened a door for progressive social experimentation and innovation in advancing Social Europe. Walking through that door, however, ultimately depends on political will matched by concrete action.

This two-part blog explores the judgment and its implications. We first outline the main provisions of the Directive, the challenge to its validity before the CJEU, and the outcome in the case. In the second part, we take a closer look at the reasoning of the Court and its implications for future social legislation.

The Directive on adequate minimum wages

Against the background of the euro-crisis, and the deregulation and austerity measures that followed it, the Directive on adequate minimum wages was one of the instruments adopted by the EU with the potential to reassure citizens that the Union can deliver better rights and social standards. It aims to improve living and working conditions, in particular the adequacy of minimum wages, and thus contribute to upward social convergence and reducing wage inequality (Article 1). It rests on three main pillars, expressed in Articles 4-6.

Article 4 requires several measures to promote collective bargaining coverage and facilitate the exercise of the right to collective bargaining on wage-setting. This includes measures to protect trade unions and employers’ organisations participating or wishing to participate in collective bargaining from interference by each other in their establishment, functioning or administration (Article 4(1)(b)), and an obligation for Member States where collective bargaining coverage is less than 80% to provide for ‘a framework of enabling conditions for collective bargaining’ (Article 4(2)).

Article 5 requires Member States with a statutory minimum wage (SMW) to establish a procedure for setting and updating it, guided by criteria that seek to ensure the ‘adequacy’ of SMW levels. While optional, the Directive mentions a ‘double decency threshold’ for minimum wages (60% of gross median wage and 50% of gross average wage) as an indicative reference.

Article 6 provides that variations or deductions in SMW rates for specific workers should respect the principles of non-discrimination and proportionality. Such workers typically include young people, workers with disabilities, and seasonal or domestic workers. The Directive thus promotes several key social rights.

The action for annulment

Even before the end of the transposition period (i.e., the period of incorporating EU directives into the national laws of EU Member States), some Member States had introduced measures responding to the Directive that led to increases in minimum wages.

In 2023, however, Denmark brought an action to annul the Directive, in whole or only Articles 4(1)(d) and/or Article 4(2). Denmark argued that it does not fall within the Union’s constitutional competence to legislate under Article 153 of the Treaty on the Functioning of the EU (TFEU). While Article 153(1)(b) TFEU provides that the EU can adopt directives on ‘working conditions,’ Article 153(5) excludes EU measures on ‘pay, the right of association, the right to strike or the right to impose lock-outs.’ The Directive, Denmark argued, concerned ‘pay’ and ‘right of association’. In his controversial advisory opinion of January 2025, Advocate General Emiliou recommended that the Directive be fully annulled as directly interfering with the exclusion of ‘pay’.

The Court’s verdict: A minimal partial annulment

By contrast, the CJEU held that only part of Article 5 could be considered a ‘direct interference of EU law in the determination of pay’ within the EU, establishing this as the criterion determining the exclusion of competence relating to pay (paras 68-70).

The Court annulled Article 5(2), which contains compulsory elements to be included in national criteria to ensure the ‘adequacy’ of SMW. This fell within the exclusion since it concerned EU requirements relating to constituent elements of SMW that would have a direct effect on their level. For the same reason, the Court annulled the last clause of Article 5(3), which specifies that, where used, an automatic mechanism for indexation adjustments of SMW cannot lead to a decrease in SMW.

While these provisions would have made procedures for setting adequate SMW more robust, their annulment does not compromise the core obligation in Article 5. Their annulment may also be of little practical significance, as Member States have already transposed the compulsory criteria in national regulations, and few Member States use an automatic mechanism for indexation.

The Court upheld the rest of the Directive. In the second part of this blog, we analyse more closely the Court’s reasons for reaching this outcome and the broader implications of the judgment.

What Kind of Conditions can Amount to a Disability under the Directive?

We now know that sensory impairments can amount to disabilities as evidenced by Tartu Vangla, which concerned a prison guard with a hearing impairment, and TC and UB v Komisia za zashtita ot diskriminatsia (TC and UB), which involved a juror who was blind. Meanwhile, the worker in VL v Szpital Kliniczny, had a ‘moderate and permanent’ disability (para 12), as established by a disability certificate. Nevertheless, there is no indication in the Court’s case law, or the Directive, that an individual needs to have officially been assessed as having a disability in order to be protected by the Directive.

In HR Rail the Court interpreted broadly the interactional element of its definition of disability. The Court found that having a pacemaker hindered the worker’s professional life through its interaction with “various barriers”. Specifically, pacemakers react to electromagnetic fields emitted by railway tracks, and this prevented the worker from carrying out the work for which he was recruited. No doubt, in many other contexts, a pacemaker would not have resulted in a worker facing “barriers” at work, and would therefore not have amounted to a disability under the Directive.

What is a reasonable accommodation?

The Court recognised as (possible) accommodations: allowing a worker to use assistive devices – specifically, a hearing aid (Tartu Vangla) or “medico-technical” equipment (TC and UB) – to enable the worker to meet a “genuine and determining occupational requirement”. An organisational form of accommodation was also addressed in the latter case, where the Court suggested that one accommodation could be only to assign such a juror to cases in which they could adequately assess the evidence. This amounts to a partial reallocation of tasks. HR Rail similarly concerned an organisational accommodation. In addition to reasonable accommodation in the form of material and organisational measures, the Court recognised a further type of reasonable accommodation in TC and UB, when it referred to “personal […] assistance” (para 62).

What do we know about disproportionate burden?

In HR Rail the Court found that a reassignment to a completely new position could be a form of reasonable accommodation, but noted that this would only be possible where there was at least one vacancy for a job that the worker was able to carry out. It therefore did not interpret the duty as extending to the creation of a new position which the worker with a disability is able to carry out, although it did not explicitly state that the creation of such a position would amount to a disproportionate burden. In contrast, Advocate General Rantos did take this view (para 77). The Court’s finding in Ca Na Negreta further reinforced the reasonable accommodation duty. It held that national legislation allowing a worker with a disability to be dismissed on the grounds of being permanently unable to do the job, without the employer being required to make or maintain a reasonable accommodation which would allow the worker to perform the work, breaches the Directive.

In Tartu Vangla, Advocate General Saugmandsgaard Øe noted that no evidence had been presented to show that allowing a prison officer to wear a hearing aid in order to enable him to meet the required levels of hearing would amount to a disproportionate burden (para 100). Clearly, the employer must produce such evidence to establish that a disproportionate burden exists.

Conclusion

The Court’s case law confirms that reasonable accommodation has been an issue which has troubled national courts over the past five years, and the Court is gradually clarifying what is required of employers in this context. The focus on what amounts to a disability, found in the earlier case law, is now less prominent, although the CJEU’s case law inevitably continues to address this, as it relates to individuals who have brought litigation. Two interesting cases to look out for in 2025 are Bervidi, which concerns reasonable accommodation duties for/towards a person who associates with (cares for) a person with a disability and Pauni, which concerns possible indirect discrimination against persons with disabilities resulting from limitations on the amount of sick leave and possible dismissal after having been on sick leave for some time.

 In fact, this problem is not entirely new, and can already be seen in a case  of 18 January 2018, Ruiz Conejero. These two rulings stand out the incorrect adaptation of the UN Convention on the Rights of Persons with Disabilities (CRPD) to the Spanish legal system concerning employment extinctions of people with disabilities.

The Spanish situation is linked to the disability characterization expansion as a result of art. 2 CRPD. The international standard incorporates a disability concept which connects long-term physical, mental, intellectual or sensory impairments with social barriers. So, the shift  from  the previous model based on an entirely medical concept to a social concept which focuses on accessibility and accommodation has meant an increase of situations that can lead to discrimination on grounds of disability. In fact, the Court has appreciated that the social concept of disability requires an extra effort to achieve full employment of people with disabilities, and in particular it has to be focused on preventing the termination of employment contracts.

Employment extinctions: reasonable accommodation

In Ca Na Negreta, it points out the need to keep improving employers’ extinction faculties and disability protection. Spain has allowed to automatically terminate  employment contracts due to the official recognition of a work invalidity (Incapacidad Permanente) since 1979, which the Court found does not comply with the prohibition of disability-based discrimination in the Employment Equality Directive. The duty to provide reasonable accommodation plays a very important role in this discussion, which the Spanish legislator has not integrated  in practically any termination modality to date. The Court emphasized the purpose to maintain the employment as a priority to eliminate disability discrimination, given that the CRPD focus is to achieve equal opportunities by enabling him or her to participate fully and effectively in professional life on an equal basis with other workers, through reasonable accommodations (see, to that effect HR Rail, para. 41 and 43). In particular, Spanish legislation allowed an automatic extinction without fulfilling the duty to provide reasonable accommodation, and it is precisely this omission that the Court considers to be a key argument, as CRPD states that disability discrimination includes also denial of reasonable accommodation (para. 42 Ca Na Negreta and art. 2 CRPD).

Therefore the Court provides a clear statement that is in line with the strong protective character it has shown over the last few years, holding that reasonable accommodation is a duty that has to be always fulfilled as a control prior to terminations affecting people with disabilities.

This is crucial to ensure effective protection against discrimination on grounds of disability. And although this has been pointed out on different occasions by scientific doctrine/legal scholarship, Spanish case law, with some exceptions, has not fully integrated the importance of this corporate duty. Thus, for example, the procedure for Spanish objective terminations due to economic or production reasons should change to include the obligation to make reasonable adjustments beforehand.

New challenges on disability discrimination: Disproportionate burden

However, from a broader perspective, there is another issue regarding the duty to provide reasonable accommodation that has been little explored even by the Court. Reasonable accommodation has to be offered unless this would constitute a “disproportionate burden”. The latter is a concept on which the Court has not yet had the opportunity to rule, and Ca Na Negreta was a good opportunity to address this issue. So, for example, the social security benefit resulting from the recognition of the situation of permanent incapacity could be assessed as an element of the excessive burden. In more detail, the social security benefit is recognized in situations of limited capacity to work, and the amount of the benefit recognized can be a crucial circumstance in determining whether the worker has a need to continue to provide services.

In conclusion, the Employment Equality Directive is now 25 years old and protection against the dismissal of people with disabilities has been an issue that gained prominence over the years. In fact, it has  triggered national challenges, especially from a Spanish perspective, which, thanks to the protective will of the Court, has led to building stronger legal systems protecting the employment of people with disabilities and ensuring the fulfillment of the duty to provide reasonable accommodation. However, outstanding issues, like the definition of disproportionate burden, still remain as a challenge to achieve full employment of people with disabilities.

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.

Facts and central question

 The complainant was a trainee working as a technician on the Belgian railways. After one year, he was diagnosed with a heart condition and this required the fitting of a pacemaker. The railway tracks contained electromagnetic fields, but the pacemaker was incompatible with repeated exposure to such fields. Consequently, the company’s medical centre confirmed that he was unfit to continue in his existing position. The complainant was temporarily reassigned to the role of warehouseman, but he was dismissed after three months. According to the company’s staff rules, reassignment in the event of disability was only available to permanent members of staff and not to trainees.

Was this compatible with the company’s duty to provide reasonable accommodation for employees with disabilities? The Belgian Conseil d’État referred this question to the Court for an interpretation of Article 5 of the Employment Equality Directive. This states 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 does not provide a clear indication as to whether ‘appropriate measures’ should encompass reassignment to a different job.

(Extent of) reassignment as reasonable accommodation

Advocate-General (AG) Rantos advised the Court that ‘appropriate measures’ should be interpreted as including reassignment to another position. Taking a purposive approach, he argued that reasonable accommodation was a/the “legal translation of the social concept of disability” and “the means to achieve substantive equality in a concrete and individualised situation of discrimination” (para 84). Drawing inspiration from the UN Convention on the Rights of Persons with Disabilities (CRPD) and the EU Charter of Fundamental Rights, he contended that “people with disabilities should be kept in employment rather than being dismissed for unfitness, which should only be a last resort” (para 68). The Court’s judgment followed his reasoning. In particular, it drew attention to recital 20. This states: “appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability” In the view of the Court, adaptation of the ‘workplace’ extended/extends to reassignment to another position therein (para 41).

HR Rail is a very significant decision because it confirms that employers should consider reassignment to another position, even in respect of non-permanent trainees. This interpretation of the Directive was not a foregone conclusion. For example, in 2019, the Irish Supreme Court held that appropriate measures did not extend to reassignment to “an entirely different job” (MacMenamin J, para106). Nevertheless, the possibility for reassignment remains contingent upon this not giving rise to a ‘disproportionate burden’ for the employer. The Court indicates that this will depend upon an assessment of the factual situation, which is a function performed by the national court (para 46). It observes, however, that the possibility of reassignment is “only available where there is at least one vacancy that the worker in question is capable of holding” (para 48). AG Rantos was more expansive on this issue. He advised that reassignment was subject to the complainant being “competent, capable and available to perform the essential functions of the new post” (para 74), and that this could not result in another worker being forced to “swap jobs” (para 77).

HR Rail confirms that employers have to explore the possibility of reassignment if an employee cannot continue in their existing position and suitable internal vacancies exist elsewhere in the organization. While this is consistent with the rationale of the CRPD, there is the potential for this to disrupt workplace norms about how internal vacancies are filled. Such opportunities may be sought after by other employees, eg because they offer a favourable schedule or working conditions. Consequently, challenges may arise when employers seek to balance their accommodation duties with wider issues of human resource management or industrial relations. For large organizations, this makes it advisable to put in place clear procedures for handling reassignment as a type of reasonable accommodation.

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.

Facts and central question

The case involved XX, a prison officer at the Estonian Tartu Prison for nearly 15 years, who was dismissed in June 2017 due to a medical certificate indicating his hearing did not meet the standards set by Regulation No. 12. This regulation mandates minimum hearing standards without corrective aids for prison officers. XX, who had a lifelong hearing impairment, claimed his dismissal was discriminatory and violated the Estonian Constitution and equal treatment laws.

The case escalated to the Estonian Supreme Court, which asked whether the Employment Equality Directive precludes national legislation that outright bans individuals from becoming prison officers if they do not meet auditory acuity requirements and prohibits the use of hearing aids to meet these standards (para. 24).

Direct distinction with a legitimate aim

The Court found that Regulation No. 12 constituted a direct distinction based on disability (para. 30). It then examined whether this difference in treatment could be justified under Article 4(1) of the Directive, which allows for such differences if they are genuine and determining occupational requirements, provided they pass a proportionality test/the objective is legitimate and the requirement is proportionate (para. 41). The Court noted that the requirement for prison officers to meet minimum hearing standards is related to the nature of their duties and the context in which they are performed (para. 41). It aims to preserve safety and public order, making it a legitimate objective (para. 42). The Court then assessed whether the requirement was appropriate and did not exceed what was necessary to achieve these objectives.

The Court noted that legislation is suitable for achieving its objective only if it consistently reflects a genuine concern to do so. It identified an inconsistency in the application of the Regulation, allowing corrective devices for visual acuity but not for hearing acuity (para. 45). However, the Court failed to explore whether the procedures underpinning Regulation No 12 were suitable to fulfil its objective based on the reading of the Directive in light of the requirements of the CRPD (Articles 5 and 27).  This approach would have provided a systemic review of occupational assessments and their compatibility with the requirements of the CRPD.

Necessity and Reasonable Accommodation

Instead, the Court moved to the necessity assessment, concluding that Articles 2(2)(a), 4(1), and 5 of Directive 2000/78 preclude national legislation that imposes an absolute bar on a prison officer’s employment if their hearing acuity does not meet the prescribed minimum standards. This conclusion is reached without assessing whether the officer can fulfil those duties, where appropriate, after adopting reasonable accommodation measures as defined in Article 5 (para 53).

The importance the Court placed on the individual assessment of persons’ ability to perform the essential duties of a job before dismissal, shows the gaps of the Estonian Regulation. Nevertheless, the fact that this argument of the Court was developed as part of the necessity assessment of the measure, could imply that the Court views this issue as a component of the reasonable accommodation duty and not as a necessary component of the medical assessment process of  Regulation No 12 specifically. The Court confirmed this interpretation in TC & UB v. Komisia za zashtita ot diskriminatsia.

(Not) an inclusive employment system

This view of the individual assessment is more restrictive than the approach taken by the CRPD Committee. The Committee has reiterated [J.M.V.A. v. Spain] that, while reasonable accommodation is an ex nunc duty, States parties must take all necessary preventive measures to enable public authorities to manage capacities effectively, thereby optimising the exercise of rights for persons with disabilities. In other words, State Parties should adopt proactive measures, including capacity assessment procedures, to build the capacities of their employees who have acquired a disability and to not rely on the reactive duty of reasonable accommodation as exception to systems that are not inclusive to the needs of persons with disabilities.

It will be interesting to see whether the Court will adopt this bolder interpretive approach in future cases, aligning more closely with the proactive and preventive measures advocated by the CRPD Committee.