(Reference for a preliminary ruling– Social policy– Directive 2000/78

25By its question, the referring court asks, in essence, whether Article5 of Directive 2000/78 must be interpreted as meaning that the concept of ‘reasonable accommodation’ for disabled persons, within the meaning of that article requires that a worker, including someone undertaking a traineeship following his or her recruitment, who, owing to his or her disability, has been declared incapable of performing the essential functions of the post that he or she occupies, be assigned to another position for which he or she has the necessary competence, capability and availability.

26As a preliminary point, it should be recalled that it is clear from the title of, and preamble to, Directive 2000/78, as well as from its content and purpose, that that directive is intended to establish a general framework for ensuring that everyone benefits from equal treatment ‘in matters of employment and occupation’ by providing effective protection against discrimination based on any of the grounds listed in Article1 thereof, which include disability (judgment of 15July 2021, Tartu Vangla, C‑795/19, EU:C:2021:606, paragraph26 and the case-law cited).

27That directive is a specific expression, within the field that it covers, of the general prohibition of discrimination laid down in Article21 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Moreover, Article26 of the Charter provides that the European Union is to recognise and respect 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 (judgment of 21October 2021, Komisia za zashtita ot diskriminatsia, C‑824/19, EU:C:2021:862, paragraphs32 and 33 and the case-law cited).

28At the outset, it is necessary to determine whether that directive may be relied on by a person who, like the applicant in the main proceedings, while undertaking a traineeship with his or her employer following recruitment, has had to be fitted with a pacemaker, which made it impossible for him or her to continue to perform the duties for which he or she was originally hired, taking into account the sensitivity of that device to the electromagnetic fields emitted by railway tracks, and consequently led to his or her dismissal.

29In that regard, first, as follows from Article3(1) thereof, Directive 2000/78 applies to both the public and private sectors, including public bodies. Hence, the fact that HR Rail is a public limited liability company governed by public law does not prevent the applicant in the main proceedings from relying on that directive against it.

30Second, according to Article3(1)(a) and (b), that directive applies to conditions for access to employment, to self-employment or to occupation, and also to access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining. It is clear from the wording of that provision that it is sufficiently wide to cover the situation of a worker undertaking a traineeship following recruitment by his or her employer.

31Moreover, the Court has already held that the concept of ‘worker’, within the meaning of Article45 TFEU, which is the same as that referred to in Directive 2000/78 (see, to that effect, judgment of 19July 2017, Abercrombie & Fitch Italia, C‑143/16, EU:C:2017:566, paragraph19), extends to a person who serves a traineeship or periods of apprenticeship in an occupation that may be regarded as practical preparation related to the actual pursuit of the occupation in question, provided that the periods are served under the conditions of genuine and effective activity as an employed person, for and under the direction of an employer (judgment of 9July 2015, Balkaya, C‑229/14, EU:C:2015:455, paragraph50 and the case-law cited).

32It follows that the fact that the applicant in the main proceedings was not, at the time of his recruitment, a member of staff recruited on a permanent basis, does not preclude his professional situation from falling within the scope of Directive 2000/78.

33Third, it is not disputed that the applicant in the main proceedings has a ‘disability’ within the meaning of the national legislation which gives effect to Directive 2000/78.

34According to the case-law, the concept of ‘disability’ within the meaning of that directive has to be understood as referring to a limitation that results in particular from long-term physical, mental or psychological impairments, which, in interaction with various barriers, may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers (see, to that effect, judgments of 11April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph38, and of 11September 2019, Nobel Plastiques Ibérica, C‑397/18, EU:C:2019:703, paragraph41).

35In the present case, the applicant in the main proceedings suffers from a health condition that requires him to be fitted with a pacemaker, a device that is sensitive to electromagnetic fields emitted, inter alia, by railway tracks, which prevents him from being able to carry out the essential functions of the post for which he was recruited.

36Therefore, a situation such as that at issue in the main proceedings falls within the scope of Directive 2000/78.

37In order to provide an answer to the referring court’s question, it should be observed that it is clear from the wording of Article5 of Directive 2000/78, read in the light of recitals20 and 21 thereof, that the employer is required to take appropriate measures, that is to say effective and practical measures, taking each individual situation into account, 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.

38In that regard, it should be recalled that Directive 2000/78 must, as far as possible, be interpreted in a manner that is consistent with the UN Convention (judgment of 21October 2021, Komisia za zashtita ot diskriminatsia, C‑824/19, EU:C:2021:862, paragraph59 and the case-law cited). Article2, third indent, of the UN Convention provides that discrimination on the grounds of disability includes all forms of discrimination, including denial of reasonable accommodation.

39According to Article5 of Directive 2000/78, in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation must be provided. Therefore, the employer must 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.

40As regards recital20 of that directive specifically, which includes amongst the appropriate measures, ‘effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources’, the Court has already held that that recital provides a non-exhaustive list of appropriate measures, and that they may be physical, organisational and/or educational, since Article5 of that directive, read in the light of Article2, fourth indent, of the UN Convention prescribes a broad definition of the concept of ‘reasonable accommodation’ (see, to that effect, judgment of 11April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraphs49 and 53).

41As the Advocate General stated in point59 of his Opinion, the reference made in recital20 of Directive 2000/78 to the adaptation of ‘the workplace’ should be understood as meaning that that adaptation should be made as a matter of priority having regard to other measures which make it possible to adapt the working environment for the disabled person in order to enable him or her to participate fully and effectively in professional life on an equal basis with other workers. Those measures may include the implementation by the employer of measures which make it possible for that person to remain in employment, such as a reassignment to another position.

42Furthermore, as the Court has already held, Directive 2000/78 is a specific expression, within the field that it covers, of the general prohibition of discrimination laid down in Article21 of the Charter. In addition, Article26 of the Charter provides that the European Union is to recognise and respect 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 (see, to that effect, judgments of 17April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph47, and of 21October 2021, Komisia za zashtita ot diskriminatsia, C‑824/19, EU:C:2021:862, paragraphs32 and 33).

43It must therefore be held, as the Advocate General suggested in point69 of his Opinion, that, where a worker becomes permanently incapable of remaining in his or her job because of the onset of a disability, reassignment to another job may constitute an appropriate measure in the context of reasonable accommodation within the meaning of Article5 of Directive 2000/78.

44That interpretation is consistent with that concept which must be understood as referring to the elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers (see, to that effect, judgment of 11April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph54).

45However, it should be observed that Article5 of Directive 2000/78 does not oblige an employer to take measures which would impose a ‘disproportionate burden’ on it. In that regard, it follows from recital21 of that directive that, in order to determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.

46It should be recalled that, in proceedings under Article267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. However, in order to give the national court a useful answer, the Court may, in a spirit of cooperation with national courts, provide it with all the guidance that it deems necessary (judgment of 11April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph61 and the case-law cited).

47One factor which may be relevant for the purposes of that assessment, is that, as the referring court observed, after being declared incapable of performing the duties for which he had been recruited, the applicant in the main proceedings was reassigned to a warehouseman’s position within the same company.

48In addition, it should be stated that, in any event, the possibility of assigning a disabled person to another job is only available where there is at least one vacancy that the worker in question is capable of holding, as the Advocate General observed in point77 of his Opinion.

49Having regard to all the foregoing considerations, the answer to the question referred is that Article5 of Directive 2000/78 must be interpreted as meaning that the concept of ‘reasonable accommodation’ for disabled persons, within the meaning of that article requires that a worker, including someone undertaking a traineeship following his or her recruitment, who, owing to his or her disability, has been declared incapable of performing the essential functions of the post that he or she occupies, be assigned to another position for which he or she has the necessary competence, capability and availability, unless that measure imposes a disproportionate burden on the employer.