Saying All the Right Things and Still Getting it Wrong
| Author | Lisa Waddington |
| Published date | 01 August 2015 |
| DOI | 10.1177/1023263X1502200406 |
| Date | 01 August 2015 |
| Subject Matter | Article |
576 22 MJ 4 (2015)
SAYING ALL THE RIGHT THINGS
AND STILL GETTING IT WRONG
e Court of Justice’s De nition of
Disability and Non-Discrimination Law
L W*
ABSTRACT
is article explores and rev iews the approach of the Court of Justice of the EU to de ning
disability under the Employment Equality Directive and concentrates, in particular, on
the two most recent cases which were decided in 2014: Z and Kalto and the relevance of
the UN Convention on the Rights of Persons w ith Disabilities (CRPD), to which the EU is
a party. e article argues that the Court’s approach to de ning disability, as applied in
practice, is not compatible with e ither the wording or spirit of the CRPD, and there is a real
dang er that the CJE U’s mist aken a pproac h will a lso tr ickl e down t o natio nal cou rts. is is
in spite of the fact that the Court pays lip ser vice to the social contextual model of disability
as outlined in the CRPD in its judgment s.
Keywords: Court of Justice of the EU; de nition of disability; non-discrimination; UN
Convention on the Rights of Persons with Dis abilities
* European Disability Forum Chair, Maastricht University (NL). is chapter wa s written wh ilst the
author was on resea rch sabbatical at Melbourne Universit y. e author is grateful t o the Melbourne
Social Equ ity Institute and Melbourn e University School of Law for hosting her wh ilst on sabbatical,
and to Melbourne Univer sity School of Law for providing nancial support th rough the Internationa l
Research Visitor’s Scheme. e aut hor is als o gratef ul to an an onymous rev iewer for he lpful com ments
on an earlier dra .
Saying Al l the Right ings and Stil l Getting It Wrong
22 MJ 4 (2015) 577
§1. IN T RODUC T IO N
e Employment Equality Direct ive,1 which prohibits employment-related discrimination
on a number of grounds, is a fra mework directive. is means that w hilst some provisions ,
such as those de ning the various forms of prohibited discriminat ion,2 are relatively
elaborate and clear, other provisions are not accompanied by a detailed de nition
and guidance. Member States and, on occasions, t he Court of Justice of the European
Union (CJEU) are le to interpret, apply and develop such provisions within the general
framework set by the Direct ive. One element which is not elaborated to any degree in the
Directive are the g rounds on which discrimi nation are prohibited. e Directive addresses
discrimi nation on the basis of religion or belief, disabil ity, age and sexual orientation but no
further g uidance on what is meant by these categorie s is provided. Indeed, no EU equality
law provides guidance on the mea ning of the relevant protected grounds. Nevertheless,
in general this has not led to a sig ni cant number of preliminary references to the CJEU
from national courts seeking clari cation as to the de nition of the protected grounds
and who is protected.3 e exception to this trend concerns d isability. e majority of
the preliminar y references which have reached the CJEU concerning d isability and t he
Employment Equality Directive have related, in some way, to the concept of disability
and the question of who falls within the protected category. In response, the Court has
developed a de n ition of disability for the purposes of the Direc tive.
is art icle will explore and review the Cou rt’s approach to de ning disability under
the Directive and concentrate, in particular, on the two most recent cases which were
decided in 2014: Z4 and Kalto 5 and the relevanc e of the UN Convention on the Rig hts
of Persons with Disabilities (CRPD),6 to which the EU is a party. e article will rst
introduce the Cour t’s case law which preceded t hese two judgments.
1 Council Dire ctive 2000/78/ EC of 27 November 200 0 establish ing a general fr amework for equal
treatment in employ ment and occupation, [2000] OJ L 303/16.
2 Article2.
3 One notable exception is C ase C-249/96 Lisa Jacqueline Grant v. South-West Trains Ltd., EU:C:1998:63,
concerning t he scope of the protection provided by a prohibit ion of sex discrimination und er EU law.
Grant argued t hat the EU prohibition of sex d iscriminat ion (Council Direct ive 76/207/EEC of 9February
1976 on the implementation of the pr inciple of equal treatme nt, vocational trai ning and promotion, and
working condition s (Equal Treatment Direct ive), 1976 OJL39/40 covered the situat ion of a worker who
experienced d iscrimination on the grou nds that she had an unmarr ied partner of the same sex, i n the
situation in whic h a worker who had an unma rried part ner of a di erent sex ex perienced bett er treatment.
Speci cally, Grant’s same sex p artner was unable to bene t from travel concessions o ered by the train
company which Gra nt worked for, whilst an unmar ried partner of the opp osite sex would have been able
to bene t from such concession s. e Cou rt of Justice found th at such discrimi nation was not prohibited
by the Equal Treatment D irective. is situ ation has since been addresse d by the Employment Equality
Directive, wh ich does prohibit employment-related dis crimination on the g rounds of sexual orie ntation.
4 Case C-363/12 Z. v. A Gover nment depart ment, e Board of management of a community school ,
EU:C:2014:159.
5 Case C-354/13 FOA v. Kommunernes L andsforening (KL) (Kalto ), EU:C:2014:2463.
6 UN Convention on the R ights of Persons with Di sabilities, A/ RES/61/106, 24January 200 7.
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