Article 21 - Non-discrimination
Article 26 - Integration of persons with disabilities
Key facts of the case:
Reference for a preliminary ruling – Social policy – Equal treatment in employment and occupation – Directive 2000/78/EC – Article 2(5) – Prohibition of discrimination on grounds of age – United Nations Convention on the Rights of Persons with Disabilities – Article 19 – Living independently and being included in the community – Charter of Fundamental Rights of the European Union – Article 26 – Social and occupational integration of persons with disabilities – Personal assistance service for persons with disabilities – Job offer stating a minimum age and maximum age of the person to be hired – Account taken of the wishes and interests of the disabled person – Justification.
Outcome of the case:
On those grounds, the Court (Second Chamber) hereby rules: Article 2(5) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, read in the light of Article 26 of the Charter of Fundamental Rights of the European Union and Article 19 of the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Union by Council Decision 2010/48/EC of 26 November 2009, 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.
38 That court states that, in a situation such as that at issue in the main proceedings, which concerns a specific personal assistance case in which both the applicant and the disabled person may claim protection against discrimination, the present reference for a preliminary ruling seeks to clarify to what extent a balance should be struck between the applicant’s right to effective protection against discrimination on grounds of age and the disabled person’s right to effective protection against discrimination on the basis of her disability, having regard to Directive 2000/78, which gives specific expression, as regards employment and occupation, to the general principle of non-discrimination enshrined in Article 21 of the Charter.
...
41 Third, the respect of that right to autonomy and freedom of choice guarantees human dignity, within the meaning of Article 1 of the Charter and Article 1 of the GG, having regard to the fact that the personal assistance concerns all areas of life and that, accordingly, the person providing that assistance would inevitably and profoundly interfere in the personal and intimate areas of the life of the person in receipt of that assistance. Therefore, the wishes of the disabled person concerned who is in receipt of personal assistance services should be respected, provided that those wishes are, in the particular case, reasonable.
47 By its question, the referring court asks, in essence, whether Article 2(5), Article 4(1), Article 6(1) and/or Article 7 of Directive 2000/78, read in the light of the provisions of the Charter and Article 19 of the UN Convention, must be interpreted as 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.
61 In that regard, it is important to point out that the right to express wishes and to choose freely referred to in paragraph 58 above gives specific expression to the right of persons with disabilities to measures aimed at ensuring their independence, social and occupational integration and participation in the life of the community, which forms part of the rights recognised by EU law, in accordance with Article 26 of the Charter.
68 Having regard to all the foregoing considerations, the answer to the question referred is that Article 2(5) of Directive 2000/78, read in the light of Article 26 of the Charter and Article 19 of the UN Convention, 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.
