Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The Court in its judgement further clarified the concept of disability in the framework of Directive 78/2000/EC.
Mr. Kaoltoft had worked as a childminder in his own home employed by the municipality of Billund in Denmark for approximately 15 years.
During the entire period during which the Danish municipality employed Mr. Kaltoft, he was ‘obese’ within the meaning of the definition of the World Health Organization (WHO), obesity being registered under code E66 of the ‘International Statistical Classification of Diseases and Related Health Problems’ of the WHO (ICD10).
He attempted to lose weight and the Municipality, as part of its health policy, provided him financial assistance between January 2008 and January 2009 in order for him to attend fitness and physical training sessions. He lost weight, which he subsequently regained, as in his previous attempts.
In March 2010, Mr. Kaltoft resumed his work as a childminder after having taken leave of one year, due to family reasons. Thereafter, he received several unexpected visits from the head of the childminders, who wished to inquire into his weight loss. During those visits, the head of the childminders observed that his weight had remained virtually unchanged.
Owing to the decrease in the number of children in the municipality, Mr. Kaltoft, from the 38th week of 2010, had only three children to take care of instead of four, the number for which he had received authorization. When the education inspectors within the municipality were requested to nominate a childminder for dismissal and the head of the childminders, in view of the proposals received, decided that Mr. Kristensen would be that person. Obesity was mentioned in susequent tals between Mr. Kaltoft and the municipality. It was not mentioned as a ground for the dismission. He was the only childminder to be dismissed on the ground of an alleged decline in workload.
The CJEU was asked to answer the following questions:
First Question:
According to the case-law of the Court, the fundamental rights which form an integral part of the general principles of EU law include the general principle of non-discrimination. That principle is therefore binding on Member States where the national situation at issue in the main proceedings falls within the scope of EU law.
In that connection, it should be stated that no provision – neither primary law nor secondary law prohibits discrimination on grounds of obesity as such. In particular, Directive 2000/78 does not mention obesity as a ground for discrimination.
The answer to the first question is that EU law must be interpreted as not laying down a general principle of non-discrimination on grounds of obesity as such as regards employment and occupation.
Second Question:
As a preliminary point, it should be recalled that the purpose of Directive 2000/78, as stated in Article 1 thereof, is to lay down a general framework for combating discrimination, as regards employment and occupation, on any of the grounds referred to in that article, which include disability.
The Court held that the concept of ‘disability’ must be understood as referring to a limitation which 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.
That concept of ‘disability’ must be understood as referring not only to the impossibility of exercising a professional activity, but also to a hindrance to the exercise of such an activity.
It should be noted that obesity does not in itself constitute a ‘disability’ within the meaning of Directive 2000/78, on the ground that, by its nature, it does not necessarily entail the existence of a limitation as referred to in paragraph 53 of this judgment.
However, in the event that, under given circumstances, the obesity of the worker concerned entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, obesity can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78
In the present case, as has been observed by the referring court, it is undisputed that Mr Kaltoft was obese for the entire period he was employed.
Directive 2000/78 must be interpreted as meaning that the obesity of a worker constitutes a ‘disability’ within the meaning of that Directive where it entails a limitation resulting 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.
It is for the national court to determine whether, in the main proceedings, those conditions are met.
Framework Equality Directive 2000/78/EC
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