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

International law

3The United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26November 2009 (OJ 2010 L23, p.35; ‘the UN Convention’), states, in recital(e) of its preamble:

‘Recognising that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’.

4Under Article1 of that convention, headed ‘Purpose’:

‘The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.’

5Article2 of that convention, headed ‘Definitions’, provides:

‘For the purposes of the present Convention:

…

“Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;

“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, 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;

…’

6Article27 of the UN Convention, headed ‘Work and employment’, provides in paragraph1 thereof:

‘States Parties recognise the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realisation of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia:

…

(h)promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures;

(i)ensure that reasonable accommodation is provided to persons with disabilities in the workplace;

…

(k)promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.’

European Union law

7Recitals16, 17, 20 and 21 of Directive 2000/78 state as follows:

‘(16)The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability.

(17)This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.

…

(20)Appropriate measures should be provided, i.e. 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.

(21)To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.’

8Article3 of the same directive, headed ‘Scope’, states in paragraph1 thereof:

‘Within the limits of the areas of competence conferred on the [European Union], this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:

(a)conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;

(b)access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;

(c)employment and working conditions, including dismissals and pay;

…’

9Article5 of that directive, headed ‘Reasonable accommodation for disabled persons’, provides:

‘In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means 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 burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.’

Belgian law

10The loi tendant à lutter contre certaines formes de discriminations (Law to combat certain forms of discrimination), of 10May 2007, which transposes Directive 2000/78 into Belgian law, prohibits direct and indirect discrimination based on one of the protected criteria, set out in Article4, 4°, of that law, which include the current or future state of health, and disability.

11Under Article9 of that law, an indirect distinction on the basis of disability constitutes indirect discrimination unless it is demonstrated that no reasonable accommodation can be made. Under Article14 of that law, all forms of discrimination are prohibited, with discrimination including, inter alia, direct discrimination, indirect discrimination and the refusal to make reasonable accommodation for a person with a disability.

12In that regard, Article4, 12°, of that same law defines the concept of ‘reasonable accommodation’ as all ‘appropriate measures, based on the needs of a given situation, in order to enable a person with a disability to have access to, participate in and advance in the areas to which that law applies, unless those measures create a disproportionate burden on the person who has to adopt them. This burden shall not be disproportionate when it is sufficiently remedied by existing measures within the framework of the public policy with regard to disabled persons’.