Article 21 - Non-discrimination
16. There are four provisions of the Treaties that address the issue of disability. They are Article 10 TFEU, according to which ‘[i]n defining and implementing its policies and activities, the Union shall aim to combat discrimination based on … disability …’, Article 19 TFEU, which provides the legal basis for the European Union to take appropriate action to combat discrimination based on disability, Article 21 of the Charter of Fundamental Rights of the European Union (‘EU Charter’) which prohibits ‘[a]ny discrimination based on any ground such as … disability’, and Article 26 of the EU Charter, which states that the ‘Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community’.
17. In contrast, obesity is not mentioned as a prohibited ground of discrimination in any of the provisions detailed above, or in any other measure of EU law. However, Article 21 of the Charter is open-ended in that it prohibits ‘discrimination based on any ground such as …’. Therefore, on the basis of the wording of this provision, taken on its own, it might be argued that there is a general principle of non-discrimination in EU law covering grounds not explicitly mentioned in Article 21 of the Charter. Examples of such prohibited grounds of discrimination might lie in physiological conditions such as appearance or size, psychological characteristics such as temperament or character, or social factors such as class or status.
18. If there is a general prohibition on discrimination in the labour market that is provided by EU law, it would have to be grounded on (i) the EU Charter provision on non-discrimination (Article 21), (5) or (ii) general EU law principles resulting from constitutional traditions common to the Member States or guaranteed in the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In support of the latter, Mr Kaltoft relies on Article 14 of the ECHR, Protocol 12 to the ECHR, and open-ended non-discrimination provisions in the Estonian, Netherlands, Polish, Finnish and Swedish constitutions.
19. However, it is important to bear in mind that the Court has affirmed that Article 6(1) TEU precludes recourse to the Charter to extend ‘in any way the competences of the European Union as defined in the Treaties’, (6) while Article 51(2) of the Charter has been interpreted in a similar way. (7) These provisions set out an outer-boundary of EU fundamental rights law that is pertinent to the case to hand.
20. Pursuant to Article 51(1) of the EU Charter, it only binds the Member States when they are ‘implementing’ EU law. Under the case-law of the Court to date, the fact that discrimination occurs in a substantive field such as the labour market is an insufficient foundation for concluding that a Member State, and in this case Denmark, is ‘implementing’ EU law. (8) Equally, where the objective of the main proceedings does not concern the interpretation or application of a rule of EU law other than those set out in the Charter, the link will be insufficient. (9)
21. Rather, before a legal situation is covered by EU fundamental rights law, as reflected in the EU Charter, there must be a certain degree of connection with EU law above and beyond the fact that matters covered are closely related, or one of those matters has an indirect impact on the other. (10)
22. The requisite link will be established when there is a specific and identified provision of Member State law, and in this case the law of Denmark, falling within the (substantive) scope of an equally specific and identified provision of EU law, whether it be found in an EU legislative act, or in the Treaties themselves. (11) A dual identification exercise of this kind does not appear in the case file. Rather, reliance is placed on the existence of a general principle of EU law precluding all discrimination in the labour market.
23. Further, Articles 10 and 19 TFEU are, in my opinion, insufficient for establishing an incidence of Member State implementation of EU law in the sense of Article 51 of the Charter. Article 10 TFEU contains, as Advocate General Wahl observed in Z, (12) a general clause which articulates a particular policy aim to which the European Union is committed. I add that Article 19 TFEU only establishes a legal basis for EU anti-discrimination measures within its competences and cannot be applied to grounds of discrimination not spelled out therein. (13) The Court has recently reiterated that national legislation capable of indirectly affecting the operation of a common organisation of the agricultural markets cannot in itself constitute a sufficient connection between that legislation and EU law so as to trigger application of Article 51(1) of the Charter. (14) Similarly, the fact that a decision taken by a public authority of a Member State, and here a decision dismissing Mr Kaltoft, might be capable of affecting EU anti-discrimination policy, can no more supply the connection required by Article 51(1) of the Charter.
24. According to the explanations to the Charter, Article 21(1) thereof ‘does not alter the extent of powers granted under Article 19 nor the interpretation given to that Article’. (15) Moreover all EU legislative acts prohibiting discriminatory conduct are addressed to specific grounds of discrimination within specific subject areas, rather than precluding in a generalised manner any discriminatory treatment. Here I have in mind, in addition to Directive 2000/78, which establishes a general framework for equal treatment in employment and occupation by reference to religion or belief, disability, age and sexual orientation, measures such as Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, (16) and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. (17) These measures do not prohibit discrimination in a generalised way but on grounds spelled out in the acts concerned.
25. Thus, a contrary conclusion to the effect that a generalised link between Member State and EU labour markets law is sufficient to engage EU fundamental rights protection at national level, would breach the established boundary on the outer limit of EU fundamental rights law. Indeed, the Court has held that, while EU fundamental rights law encompasses the general principle of non-discrimination, and binds the Member States where the national situation at issue falls within the scope of EU law, ‘it does not follow from this that the scope of Directive 2000/78 should be extended by analogy beyond the discrimination based on the grounds listed exhaustively in Article 1 thereof’. (18)
26. Finally, I do not accept the arguments of Mr Kaltoft to the effect that the general principle of EU law precluding discrimination on grounds of age, which is now reflected in Article 21(1) of the EU Charter, and which can, in some circumstances, have horizontal direct effect between two private parties, assists his case in any way. (19) There is nothing in the relevant age-discrimination rulings pointing toward the existence of a general principle of law precluding discrimination in the labour market generally. Nor can constitutional provisions common to a handful of Member States, or a protocol to the ECHR, such as Protocol 12 to the ECHR (that entered into force on 1 April 2005) establish a general principle of law which would oblige Member States to combat discrimination on grounds which, unlike age, are not spelled out in the Treaties or in EU legislation. Moreover, Article 14 of the ECHR cannot expand the competence of the European Union with regard to the principle of non-discrimination as protected by Article 21 of the Charter.
