On the facts
In 2018, a 28-year-old student sought the services of a German company specializing in assistance and consulting for people with disabilities to recruit a personal assistant on her behalf to help her in all aspects of her daily life. This student had insisted on a preference for recruiting a personal assistant aged between 18 and 30 years.
An application from a personal assistant not belonging to this age group was not selected. This applicant, then aged 50, felt discriminated against and claimed compensation as a sanction against the recruiting company. Therefore, she brought her dispute with the recruitment company before the Federal Labour Court of Germany.
About the procedure
The Federal Labour Court of Germany then referred the case to the Court of Justice of the European Union. Indeed, there is a
procedure that allows a court of a member state to ask the CJEU for an interpretation or the validity of Union law in a dispute before it. This is known as a preliminary ruling.
Thus, the Allgemeines Gleichbehandlungsgesetz (General Act on Equal Treatment or
AGG, of August 14, 2006, was potentially at odds with Article 2 § 5, Article 4 § 1, Article 6 § 1, and Article 7 of Council Directive
2000/78/CE of November 27, 2000, establishing a general framework for equal treatment in employment and occupation, read in light of the
Charter of Fundamental Rights of the European Union, as well as 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/CE of November 26, 2009.
On the Potential Conflict Between German Law and European Community Law
Recall on the hierarchy of legal norms. International and European law are superior to national laws. Thus, the Court of Justice of the European Union had to examine the supranational norms to determine whether the hiring discrimination was justified with respect to the age condition for recruiting a personal assistant for a 28-year-old disabled woman to accompany her in the acts of her daily life.
On German Law
Article 2 of the
Basic Law of the Federal Republic of Germany of May 23, 1949 states: "Everyone has the right to the free development of his personality, provided he does not violate the rights of others or infringe the constitutional order or the moral law.
"
However, Article 8 of the
AGG admits a difference in treatment under its Article 1 "when the nature of the activities to be carried out or the conditions of their exercise constitute an essential and determining professional requirement, provided that the objective is legitimate and the requirement is proportionate."
On International Law
The preamble of the
UN Convention recognizes "the importance for persons with disabilities of their independence and individual autonomy, including the freedom to make their own choices". Its Article 5 provides: "Specific measures that are necessary to accelerate or achieve de facto equality of persons with disabilities do not constitute discrimination under this Convention."
On European Union Law
Directive
2000/78 states: "In very limited circumstances, a difference in treatment may be justified when a characteristic related to religion or beliefs, disability, age, or sexual orientation constitutes an essential and determining professional requirement, provided that the objective is legitimate and the requirement is proportionate."
And "The prohibition of age discrimination is an essential element in achieving the objectives set by the employment guidelines and promoting diversity in employment. Nonetheless, differences in treatment based on age may be justified under certain circumstances and thus call for specific provisions that may vary according to the situation of the Member States."
The issue of legitimacy and proportionality was obviously at the heart of the debate. Thus,
the CJEU decided to interpret the German provisions in light of the texts that are superior to it, namely European texts and international law. And
in the sense that one cannot oppose an age condition for the recruitment of a person providing personal assistance under national legislation providing for the consideration of individual wishes of people entitled, due to their disability, to personal assistance services,
provided that such an age condition is "a measure necessary for the protection of the rights and freedoms of others. »
On the Impact of the Court of Justice of the European Union's Ruling
The CJEU, in its ruling of
December 7, 2023, ruled that the preference for personal assistants of a certain age range expressed by the disabled person is likely to promote the respect of her right to self-determination. Consequently, the recruitment of the personal assistant may be subject to age conditions, if the measure is necessary for the protection of the rights and freedoms of others
in all Member States of the European Union.
But can the freedom of others lead to subordinating the recruitment of the personal assistant to sexual, ethnic, religious reasons... In a word as in a hundred, the
Pandora's box is open!
