Key facts of the case:
‛Reference for a preliminary ruling — Social policy — Equal treatment in employment and occupation — National legislation affording special protection to disabled employees in the event of dismissal — No such rules for the benefit of disabled civil servants — Permissibility — Directive 2000/78/EC — Articles 4 and 7 — United Nations Convention on the Rights of Persons with Disabilities — Article 5(2) — Extension of the national protective rules to benefit disabled civil servants’
Outcome of the case:
In the light of the foregoing, I propose that the Court’s answer to the questions referred for a preliminary ruling by the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria) should be as follows:
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that it is not applicable to a situation in which the difference of treatment which the national legislation introduces as between employees and civil servants with the same types of disability is based on the criterion not of disability but of the nature of the employment relationship between those two categories of disabled person and their respective employers.
40) That court states that it is unsure of the extent to which the provisions of the UN Disability Convention, the EU Charter of Fundamental Rights (‘the Charter’) and Directive 2000/78, which, in its view, have laid down common conditions with respect to the equal treatment of all disabled persons, permit the continued existence of that position in Bulgarian law, which gives rise to a difference in the treatment of two categories of vulnerable worker despite the fact that they are both in a similar situation involving the termination of their employment.
60) The referring court briefly mentions the Charter in the grounds of its order, but does not in any way spell out how that instrument of EU law might be relevant to the facts of the dispute in the main proceedings. It does not put forward any argument with respect to the impact that might emanate in this case from any of the provisions of that act, which, moreover, is not the subject of the questions referred. The written observations submitted to the Court do not elaborate any further on the matter. ( 31 )
61) However, it is settled case-law that the fundamental rights guaranteed by the Charter are applicable only in situations governed by EU law and that the Court must possess all of the information enabling it to conclude that the situation at issue falls within the scope of EU law in order to be able to rule on the interpretation of provisions from the Charter. ( 32 ) Since the referring court has not established that the national rules capable of governing the substance of the dispute in the main proceedings ( 33 ) had as their purpose the specific and direct implementation of the relevant provisions of EU law, as required by Article 51 of the Charter, ( 34 ) the Court should, in my view, find that there is no need to assess the conformity of those rules with the fundamental rights enshrined in that act. ( 35 )
62) Moreover, any interpretation of provisions of EU law — in this instance, the articles from Directive 2000/78 mentioned in the second and third questions referred — given in the light of the provisions of the Charter — and, more specifically, Articles 20, 21, 26 and 30 ( 36 ) — is possible only within the limits of the powers conferred on the Court, which here depend on the substantive scope of that directive. Any Charter provisions relied on cannot, in themselves, serve to substantiate the Court’s jurisdiction to adjudicate on a legal situation which does not fall within the scope of EU law. ( 37 )
63) I note that the order for reference refers implicitly to a principle prohibiting all forms of discrimination against disabled persons. In that regard, I would recall that, where a question has been referred to the Court for a preliminary ruling on the interpretation of the general principle of non-discrimination based on age as enshrined in Article 21 of the Charter and given specific expression in Directive 2000/78, ( 38 ) that question has been examined by reference to that directive alone, ( 39 ) in particular in disputes between an individual and a national administrative authority, as in the present case. Logically, the same approach should be adopted with respect to a principle of non-discrimination based on disability, also enshrined in Article 21 of the Charter and given specific expression in Directive 2000/78.
64) Since the latter is not, in my view, applicable in circumstances such as those of the dispute in the main proceedings where the differentiation at issue is based on a criterion other than those exhaustively listed in Article 1 thereof, as I have explained above, ( 40 ) I consider that the provisions of that directive cannot be interpreted in the light of the provisions of the Charter in the present case.
65) Taking into account the foregoing, I take the view, principally, that there is no need to interpret Articles 4 and 7 of Directive 2000/78 in the present case, even in the light of the provisions of the Charter. I shall nevertheless present a number of observations in the alternative to cater for the eventuality that the Court does not follow that recommendation.