Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 13 July 2023 (1)

Case C‑518/22

J.M.P.

v

AP Assistenzprofis GmbH

(Request for a preliminary ruling from the Bundesarbeitsgericht (Federal Labour Court, Germany))

(Reference for a preliminary ruling – Social policy – Equal treatment in employment and occupation – Directive 2000/78/EC – Prohibition of discrimination on grounds of age – Personal assistance service for persons with disabilities – Job offer stating a minimum age and maximum age of the person to be hired – Account taken of the wishes and needs of the person with a disability)

I.      Introduction

1.        This request for a preliminary ruling concerns the interpretation of Article 2(5), Article 4(1), Article 6(1) and Article 7 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, (2) read in the light of the Charter of Fundamental Rights of the European Union (3) and the 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 26 November 2009. (4)

2.        The request has been made in proceedings between J.M.P. and AP Assistenzprofis GmbH, a provider of assistance and advisory services to persons with disabilities, concerning the payment of compensation sought by J.M.P. on account of alleged discrimination on grounds of age occurring in the context of a procedure for the recruitment of a personal assistant. J.M.P. submits that her application was rejected because she fell outside the age range specified in the job offer, that is to say, between the ages of 18 and 30 years old.

3.        The Bundesarbeitsgericht (Federal Labour Court, Germany) therefore asks the Court whether there is any justification for the difference of treatment based on age, and requests that it interpret, more specifically, Article 2(5), Article 4(1), Article 6(1) and/or Article 7 of Directive 2000/78, read in the light of the provisions of the Charter and of the UN Convention.

4.        In this Opinion, I will propose that the Court rule that Article 2(5) of that directive is the relevant provision and that, read in the light of Article 26 of the Charter and of Article 19 of the UN Convention, that provision must be interpreted as not precluding a situation in which, on the basis of national legislation providing that the wishes of persons with disabilities as regards the organisation of the personal assistance which they receive must be taken into account in order to guarantee their autonomy and inclusion in society, the hiring of a personal assistant is subject to an age condition, provided that such a measure is necessary for the protection of the rights and freedoms of others.

II.    Legal framework

A.      International law

5.        Article 1 of the UN Convention, entitled ‘Purpose’, provides:

‘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.

…’

6.        Article 3 of that convention, entitled ‘General principles’, states:

‘The principles of the present Convention shall be:

(a)      respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;

(b)      non-discrimination;

(c)      full and effective participation and inclusion in society;

(d)      respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

…’

7.        Article 5 of the UN Convention, entitled ‘Equality and non-discrimination’, reads as follows:

‘1.      States Parties recognise that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.

…

4.      Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.’

8.        Article 12 of that convention, entitled ‘Equal recognition before the law’, provides, in paragraph 2 thereof:

‘States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.’

9.        Under Article 19 of the UN Convention, entitled ‘Living independently and being included in society’:

‘States Parties to the present Convention recognise the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

(a)      persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

(b)      persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

(c)      community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.’

B.      European Union law

10.      Article 1 of Directive 2000/78, entitled ‘Purpose’, provides:

‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’

11.      Article 2 of that directive provides:

‘1.      For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

2.      For the purposes of paragraph 1:

(a)      direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;

…

5.      This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.’

12.      Article 4 of Directive 2000/78, entitled ‘Occupational requirements’, states, in paragraph 1 thereof:

‘Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’

13.      Article 5 of that directive, entitled ‘Reasonable accommodation for disabled persons’, reads as follows:

‘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.’

14.      Under Article 6 of Directive 2000/78, entitled ‘Justification of differences of treatment on grounds of age’:

‘1.      Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

Such differences of treatment may include, among others:

(a)      the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

(b)      the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

(c)      the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

…’

15.      Article 7 of that directive, entitled ‘Positive action’, provides:

‘1.      With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1.

2.      With regard to disabled persons, the principle of equal treatment shall be without prejudice to the right of Member States to maintain or adopt provisions on the protection of health and safety at work or to measures aimed at creating or maintaining provisions or facilities for safeguarding or promoting their integration into the working environment.’

C.      German law

1.      The GG

16.      Article 1 of the Grundgesetz für die Bundesrepublik Deutschland (Basic Law of the Federal Republic of Germany) (5) of 23 May 1949, in the version thereof applicable to the dispute in the main proceedings, provides:

‘1.      Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

2.      The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.

…’

17.      Article 2(1) of the GG states:

‘Every person shall have the right to free development of his or her personality in so far as he or she does not violate the rights of others or offend against the constitutional order or the moral law.’

2.      The AGG

18.      The Allgemeines Gleichbehandlungsgesetz (General Law on equal treatment) (6) of 14 August 2006 is intended to transpose Directive 2000/78 into German law.

19.      Paragraph 1 of the AGG, which defines the purpose of that law, states:

‘The purpose of this Law is to prevent and eliminate any disadvantage on the grounds of race or ethnic origin, sex, religion or belief, disability, age or sexual identity.’

20.      Paragraph 3(1) of the AGG provides:

‘Direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Paragraph 1 …’

21.      Paragraph 5 of the AGG provides:

‘Notwithstanding the grounds mentioned in Paragraphs 8 to 10 …, a difference of treatment shall also be permitted where there are adequate and appropriate measures intended to prevent or compensate for disadvantages existing on one of the grounds stated in Paragraph 1.’

22.      Under Paragraph 7(1) of the AGG:

‘Employees shall not be discriminated against in any way on any of the grounds referred to in Paragraph 1 …’

23.      Paragraph 8(1) of the AGG reads as follows:

‘A difference of treatment on one of the grounds referred to in Paragraph 1 shall be permitted where, by reason of the nature of the activities to be carried out or of the context in which they are carried out, that ground constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’

24.      Paragraph 10 of the AGG provides:

‘Notwithstanding Paragraph 8, a difference of treatment on grounds of age shall also be permitted where it is objectively and reasonably justified by a legitimate aim. The means deployed to achieve that aim must be appropriate and necessary. Such differences of treatment may include, among others:

1.      the setting of special conditions on access to employment and vocational training, employment and occupation, including remuneration conditions and conditions related to the termination of the employment relationship, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

2.      the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

3.      the fixing of a maximum age for recruitment which is based on the specific training requirements of the post in question or the need for a reasonable period of employment before retirement;

…’

25.      Paragraph 15(1) and (2) of the AGG states:

‘1.      In the event of a breach of the prohibition of discrimination, the employer shall be required to provide compensation for the resulting damage …

2.      In the case of damage other than material damage, the worker may claim appropriate monetary compensation …’

3.      The Sozialgesetzbuch

26.      Paragraph 33 of the Sozialgesetzbuch, Erstes Buch (Book I of the Social Security Code) (7), of 11 December 1975 reads as follows:

‘If the content of rights or obligations is not defined in detail in terms of their nature or scope, account shall be taken, when they are established, of the personal circumstances of the person entitled or the person subject to obligations, his or her needs and capacity to contribute and local conditions, provided that legal provisions do not preclude such account from being taken. In that regard, the wishes of the person entitled or the person subject to obligations must be respected in so far as they are reasonable.’

27.      Paragraph 8(1) of the Sozialgesetzbuch, Neuntes Buch (Book IX of the Social Security Code) (8), of 23 December 2016 provides:

‘When deciding on services and in the performance of services intended to promote participation in society, the legitimate wishes of persons entitled to receive services shall be respected. In that regard, account shall also be taken of the personal circumstances, age, sex, family and religious and philosophical needs of persons entitled to receive services; Paragraph 33 of [SGB I] shall otherwise apply …’

28.      Paragraph 78(1) of SGB IX reads as follows:

‘Assistance services shall be provided to enable the self-determined and independent management of everyday life, including the structuring of a daily routine. They shall include, in particular, services in connection with general everyday tasks such as managing a household, forming social relationships, organising day-to-day life, participating in community and cultural life, taking part in leisure activities, including sports, and ensuring the effectiveness of medical and medically prescribed services. They shall entail interaction with the persons involved in those areas.’

III. Facts of the dispute in the main proceedings and the question referred for a preliminary ruling

29.      AP Assistenzprofis, the respondent in the appeal on a point of law in the main proceedings (‘the respondent in the main proceedings’), is a company which provides disabled persons, in accordance with Paragraph 78(1) of SGB IX, with assistance and advisory services intended to enable those persons to manage their day-to-day life independently.

30.      In July 2018, that company published a job offer stating that A., a 28-year-old female student, was looking for female personal assistants to help her in all aspects of everyday life, who should ‘preferably be between 18 and 30 years old’.

31.      J.M.P., the appellant on a point of law in the main proceedings, who was born in 1968, applied for that job and received a rejection from the respondent in the main proceedings.

32.      Having failed to assert her rights out of court, the appellant on a point of law in the main proceedings brought an action against the respondent in the main proceedings before the Arbeitsgericht Köln (Labour Court, Cologne, Germany) seeking compensation for damage resulting from discrimination on grounds of age, pursuant to Paragraph 15(2) of the AGG.

33.      In that context, the appellant on a point of law in the main proceedings argued, first, that, since the job offer was expressly addressed to persons aged ‘between 18 and 30 years old’, it can be presumed on that basis that her application was rejected in the recruitment procedure on account of her age, and the respondent in the main proceedings has not rebutted that presumption. Second, the resulting difference of treatment on grounds of age is not justified having regard to any aspect related to the assistance service. Thus, she submits that that difference of treatment is not permitted under Paragraph 8(1) of the AGG, or pursuant to Paragraph 10 of the AGG, especially since a specific age is irrelevant in terms of the relationship of trust in such an assistance service. On the contrary, according to the appellant on a point of law in the main proceedings, personal assistance provided by a person older than the age required in the job offer could have considerable advantages for the disabled person, because the assistant would have greater life experience.

34.      The respondent in the main proceedings contends that the action should be dismissed, arguing that any difference of treatment on grounds of age was justified under Paragraph 8(1) or Paragraph 10 of the AGG. It stated, in that regard, that the assistance required involves highly personal, all-encompassing support with daily living, with the person receiving the assistance being constantly and completely dependent on the person providing that assistance. The respondent in the main proceedings argues that the age requirement is a necessary condition to meet the highly personal needs of the person receiving assistance, A., so that she can participate adequately in social life as a university student.

35.      As Paragraph 8(1) of SGB IX provides, account must be taken, according to the respondent in the main proceedings, of the legitimate wishes and subjective needs of the person receiving assistance. It contends that, against that background, the legitimate wish that the person providing that assistance be of a certain age should be regarded as a ‘genuine and determining occupational requirement’ within the meaning of Paragraph 8(1) of the AGG, which would allow the objective of the assistance services to be achieved, as set out in Paragraph 78(1) of SGB IX. In the opinion of the respondent in the main proceedings, such a requirement is proportionate. In addition, it argues that a difference of treatment on grounds of age is also permissible under Paragraph 10 of the AGG, since that difference is objective and reasonable, is justified by a legitimate aim, and the means of achieving the objective of personal assistance, set out in Paragraph 78 of SGB IX, are appropriate and necessary.

36.      Since the Arbeitsgericht Köln (Labour Court, Cologne) upheld the action brought by the appellant on a point of law in the main proceedings and the appeal brought by the respondent in the main proceedings against that decision was allowed by the Landesarbeitsgericht Köln (Higher Labour Court, Cologne, Germany), the appellant on a point of law in the main proceedings brought an appeal on a point of law (Revision) against the judgment of the latter court before the referring court.

37.      As a preliminary point, the referring court observes, first, that a situation such as that at issue in the main proceedings falls within the scope of Directive 2000/78, since it concerns selection criteria for access to employment within the meaning of Article 3(1)(a) of that directive. Second, it considers that the appellant on a point of law in the main proceedings has been directly discriminated against on grounds of age, for the purposes of Article 2(2)(a) of Directive 2000/78, following the rejection of her application by the respondent in the main proceedings.

38.      Faced with a situation in which both the appellant on a point of law in the main proceedings and the disabled person concerned can claim protection against discrimination, the referring court states that the purpose of its request for a preliminary ruling is to determine how, in the specific case of personal assistance, a balance between the rights of each of those individuals should be struck.

39.      In that connection, the referring court points out that the personal assistance concerns all areas of life and reaches into the private and intimate areas of the life of the person receiving that assistance. Depending on the circumstances of each case, the assistance may meet different needs. In a situation such as that in the dispute in the main proceedings, one of the needs expressed by A. is assistance at university, which may involve recording and processing the content of her studies and include, inter alia, preparing files. Personal assistance is necessarily required for every encounter with other students, meaning that such assistance is an integral part of the university life of the disabled person concerned.

40.      From a general standpoint, the referring court states that personal assistance is based on the principle of self-determination, and is thus intended to enable persons with disabilities to organise their life independently. This involves, inter alia, giving them the power to choose, independently, the personnel providing that assistance, the power to give instructions to that personnel and the power to decide on the arrangements for and scope of the provision of services.

41.      Thus, under German law, when deciding on services and in the performance of those services, the legitimate wishes of persons entitled to receive services must be respected, in accordance with Paragraph 8(1) of SGB IX, read in conjunction with Paragraph 33 of SGB I, in so far as those wishes are reasonable and taking into account, inter alia, the personal circumstances, age, sex, family and religious and philosophical needs of those persons.

42.      In short, in the referring court’s view, the right of persons entitled to receive services to express their wishes and to make choices freely is intended to take into account the right of persons with disabilities to organise how they live their life in as self-determined and independent a manner as possible and to strengthen the personal autonomy of those persons as well as their motivation to participate in the community, on an equal basis with others and with respect for their dignity. In that regard, the referring court cites numerous provisions of the UN Convention, including Articles 1, 3, 5, 12 and 19 thereof, as well as several provisions of the Charter, including Articles 1, 7 and 26 thereof.

43.      That court considers that, in the case of personal assistance services, the wishes expressed by persons with disabilities with a view to organising their own life must be respected. Specifically, they should, like persons without disabilities, be able to choose the person with whom they wish to share their daily life. In its view, it is therefore necessary to determine whether it is compatible with the provisions of Directive 2000/78 for persons with disabilities to specify, in the course of the procedure for filling a personal assistant post, an age-related preference as a selection criterion, even though, pursuant to Article 2(2)(a) of that directive, direct discrimination on grounds of age is prohibited.

44.      With that in mind, the referring court asks the Court of Justice which provision(s) of Directive 2000/78 could justify the age-related difference of treatment at issue in the case in the main proceedings.

45.      With regard, in the first place, to Article 4(1) of Directive 2000/78, the referring court asks whether the wish expressed by a person with a disability, in the context of his or her right to self-determination, regarding the age of the person providing personal assistance is a characteristic falling within the scope of that provision and whether an age preference can be a ‘genuine and determining occupational requirement’ within the meaning of that provision. It shares its doubts in that regard, as the specific wish in question cannot be generalised and, as such, is not objectively dictated by the nature of the occupational activities in question or by the context in which they are carried out. For instance, another young person with a disability may prefer to choose a person who is the age of his or her parents. In its view, this demonstrates that the wish expressed by each person with a disability is based on his or her subjective priorities vis-à-vis organising his or her own life independently.

46.      As regards, in the second place, Article 6(1) of Directive 2000/78, the referring court states that it is unsure whether that provision is applicable to a situation such as that at issue in the main proceedings. According to that court, it is conceivable that the aim of taking into account the right of persons with disabilities to organise how they live their life in as self-determined and independent a manner as possible and to strengthen the personal autonomy of those persons as well as their motivation to participate in the community, could constitute a ‘legitimate aim’ within the meaning of that provision.

47.      In the third place, the referring court points out that Article 7 of Directive 2000/78 concerns equality in professional life, which, in a case such as that in the main proceedings, is not the aim of the personal assistance in question. Nevertheless, it is unsure about the relevance of that article as justification for discrimination on grounds of age such as that at issue in the main proceedings, taking into account Article 5(1) and (4) of the UN Convention.

48.      Lastly, the referring court wishes to ascertain whether Article 2(5) of Directive 2000/78, which provides that that directive is to be without prejudice to measures laid down by national law which, in a democratic society, are necessary, inter alia, for the protection of the rights and freedoms of others, may justify, in a case such as that in the main proceedings, discrimination on grounds of age. Noting the objective of the personal assistance services, and given that a person without any disability who is of A.’s age, namely 28 years old, is free to decide independently the age of the persons with whom he or she wishes to share his or her daily life, that court considers that a good many factors support the view that persons with disabilities must also be guaranteed a right of free choice with regard to personal assistance.

49.      In those circumstances, the Bundesarbeitsgericht (Federal Labour Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Can Article 4(1), Article 6(1), Article 7 and/or Article 2(5) of Directive [2000/78], read in the light of the requirements of the [Charter] and of Article 19 of the [UN Convention], be interpreted as meaning that, in a situation such as that in the main proceedings, direct discrimination on grounds of age may be justified?’

50.      Written observations were submitted by the appellant on a point of law in the main proceedings, the respondent in the main proceedings, the Greek, Polish and Portuguese Governments, and the European Commission.

IV.    Analysis

51.      By its question referred for a preliminary ruling, the referring court seeks to ascertain whether respect for the personal wishes of people entitled to personal assistance services on account of their disability could justify a difference of treatment on grounds of age under Directive 2000/78. With that in mind, it asks the Court to interpret, specifically, Article 2(5), Article 4(1), Article 6(1) and/or Article 7 of that directive, read in the light of the provisions of the Charter and of the UN Convention. (9)

52.      As a preliminary point, it should be noted, first, that the situation at issue in the main proceedings falls within the scope of Directive 2000/78, since a procedure for recruitment of a personal assistant, in the context of which it is required that candidates are preferably between 18 and 30 years old, affects ‘conditions for access to employment’, within the meaning of Article 3(1)(a) of that directive, by laying down in that regard a selection criterion, within the meaning of that provision.

53.      Second, it may be assumed, based on the age preference stated, that one person applying for the job in question who is not within that age range will be treated less favourably than another person in a comparable situation who falls within the said age range. Such a difference of treatment on grounds of age constitutes ‘direct discrimination’ within the meaning of Article 2(2)(a) of Directive 2000/78.

54.      Paragraph 5 of that same article lists reasons which could justify a difference of treatment on grounds of age. Thus, under that provision, that directive ‘shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others’.

55.      As the Court has already clarified, in adopting that provision, the EU legislature, in the area of employment and occupation, intended to prevent and adjudicate on a conflict between, on the one hand, the principle of equal treatment and, on the other, the necessity of ensuring public order, security and health, the prevention of criminal offences and the protection of individual rights and freedoms, which are necessary for the functioning of a democratic society. The legislature thus decided that, in certain cases set out in Article 2(5) of Directive 2000/78, the principles established by the directive do not apply to measures incorporating differences in treatment on one of the grounds referred to in Article 1 of that directive, on condition, however, that those measures are necessary for the attainment of the abovementioned objectives. (10)

56.      It also follows from the case-law of the Court that, as Article 2(5) of Directive 2000/78 establishes an exception to the principle prohibiting discrimination, it must be interpreted strictly. (11)

57.      For Article 2(5) of that directive to provide a reason justifying the difference of treatment on grounds of age at issue in the case in the main proceedings, it is necessary, in the first place, to establish whether a measure has been laid down by national law, as required by that provision.

58.      I consider that that is indeed the case. The age condition mentioned in the job offer at issue constitutes a measure laid down by national law because, according to the information provided by the referring court, Paragraph 8(1) of SGB IX, read in conjunction with Paragraph 33 of SGB I, provides that, when deciding on personal assistance services and in the performance of those services, the legitimate wishes of the persons entitled to receive those services must be respected, in so far as those wishes are reasonable and taking account, inter alia, of the personal circumstances, age, sex, family and religious and philosophical needs of those persons. (12) As the referring court states, personal assistance services are thus bound to comply with the provisions of national law enshrining the right of persons with disabilities to express their wishes as regards the performance of those services, with a view to guaranteeing their autonomy and inclusion in society.

59.      Like the Commission, I take the view that the key point in determining whether Article 2(5) of Directive 2000/78 is applicable is that the fundamental decision concerning the relevance of certain interests is taken by the national legislature as part of an exercise weighing up the interests protected by that directive. It is on the basis of the balance thus struck by that legislature that individual measures, such as the one at issue in the main proceedings, may then be adopted. That article should therefore apply to such measures, by which providers of personal assistance services are, ultimately, simply giving concrete effect to the choices made by the legislature. (13)

60.      In the second place, it is necessary to examine whether the national legislation pursues one of the objectives specified in Article 2(5) of Directive 2000/78, namely the protection of the rights and freedoms of others.

61.      This is the case. As the referring court states, the right of persons entitled to receive services to express their wishes and to make choices freely, which is guaranteed by that legislation, is intended to take into account the right of persons with disabilities to organise how they live their life in as self-determined and independent a manner as possible and to strengthen the personal autonomy of those persons as well as their motivation to participate in the community, on an equal basis with others and with respect for their dignity.

62.      I therefore agree with the referring court when it takes the view that, since a person without any disability who is of A.’s age is free to decide independently the age of the persons with whom he or she wishes to share his or her daily life, persons with disabilities must also be guaranteed such a right of free choice with regard to personal assistance. As the Polish Government correctly stated, a personal assistant helps a person with a disability to overcome the obstacles which impede his or her ability to participate in social, economic and political life on the same basis as people without any disabilities.

63.      In short, the right of another that merits protection within the meaning of Article 2(5) of Directive 2000/78 is the right to self-determination of persons with disabilities, in accordance with which those persons must be able to choose how, where and with whom they live in order to guarantee their autonomy and their inclusion in the community. That right means, inter alia, that persons with disabilities must be able to shape the service that will be provided to them and give instructions directly to the person providing assistance to them, which includes determining the selection criteria for their personal assistant and being actively involved in the process of hiring that assistant.

64.      There can be no doubt as to the legitimacy of the objective thus pursued by the national legislation since, in accordance with what Article 26 of the Charter provides, it seeks to ensure the independence, social and occupational integration and participation in the life of the community of persons with disabilities.

65.      Furthermore, it should be noted, in support of the legitimacy of that objective, that Directive 2000/78 must, as far as possible, be interpreted in a manner that is consistent with the UN Convention. (14) As the referring court has highlighted, the aim of that convention is to guarantee the individual autonomy and the inclusion in the community of persons with disabilities, on an equal basis with others and with respect for their dignity. In particular, Article 19 of the UN Convention lists a number of measures that the States Parties to that convention are required to put in place to achieve that objective. Those measures include the opportunity for persons with disabilities to choose where and with whom they live (15) and guaranteed access to the personal assistance necessary to support living and inclusion in the community and to prevent isolation or segregation from the community. (16) In addition, Article 5(4) of the UN Convention states that specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities are not to be considered discrimination under the terms of that convention.

66.      In the third place, in a situation such as that at issue in the main proceedings, which is characterised by an individual measure giving concrete effect to the choice made by the national legislature in Paragraph 8(1) of SGB IX, read in conjunction with Paragraph 33 of SGB I, it is necessary to establish whether the difference of treatment on grounds of age is necessary for the protection of the rights and freedoms of others, within the meaning of Article 2(5) of Directive 2000/78.

67.      In that regard, it is my view that expressing, on the basis of national legislation, an age preference for the purpose of hiring the personal assistant for a person with a disability is appropriate and does not go beyond what is necessary to achieve that objective, which, in this case, consists in the protection of the right to self-determination of persons with disabilities with a view to guaranteeing their autonomy and their inclusion in society.

68.      In addition to the fact that it is a preference (‘preferably … between 18 and 30 years old’) and not an absolute requirement, it is clear from Paragraph 78(1) of SGB IX that personal assistance services include, in particular, services in connection with general everyday tasks such as managing a household, forming social relationships, organising day-to-day life, participating in community and cultural life, taking part in leisure activities, including sports, and ensuring the effectiveness of medical and medically prescribed services. The personal assistance therefore concerns all areas of life and reaches into the private and intimate areas of the life of the person receiving that assistance, which justifies respecting the wishes expressed by that person.

69.      Furthermore, depending on the circumstances of each case, the assistance may meet different needs. In a situation such as that in the dispute in the main proceedings, one of the specific needs expressed by A. is assistance in connection with her university studies. That assistance may involve, inter alia, recording and processing the content of her studies and include preparing files. In addition, personal assistance is necessarily required for every encounter with other students, meaning that such assistance is an integral part of the university life of the disabled person concerned. That specific need appears to be the reason behind the age preference stated in the job offer at issue. The underlying idea is that, from A.’s point of view, a person ‘preferably … between 18 and 30 years old’ will, by virtue of the psychological and social characteristics particular to that age range, be better able to perform this component of the personal assistance required, in particular by better allowing A. to pursue her studies and enabling her enhanced participation and inclusion in social life at the university. In that regard, the respondent in the main proceedings and the Polish Government argue that a person providing personal assistance who is close in age to A. could succeed in fitting into A.’s social circle more easily, thus strengthening her autonomy and participation in social life.

70.      If explained in those terms, an age preference such as that at issue in the main proceedings appears to me to satisfy the criterion of necessity required in Article 2(5) of Directive 2000/78. Expressing such an age preference gives concrete effect to the right of persons with disabilities to exercise control over their own life and to take all the decisions that affect them, since this contributes to guaranteeing their autonomy and inclusion in society. Taking account of A.’s view that a person close to her own age can allow her to participate in social life to a satisfactory degree, which I consider to be an entirely legitimate point of view, does not seem to me to go beyond what is necessary to guarantee the right to self-determination of persons with disabilities.

71.      It is, however, for the referring court to determine, in the light of the evidence available to it, whether the criterion of necessity is satisfied in the present case.

72.      Since, subject to the determinations to be made by the referring court, Article 2(5) of Directive 2000/78 allows a measure such as that at issue in the main proceedings to be justified, there is no need, in my view, for the Court to examine whether such a measure could also be justified in the light of other provisions of that directive. (17)

73.      In any event, it is my view that the other provisions of Directive 2000/78 to which the referring court makes reference in its request for a preliminary ruling are not relevant in a situation such as that at issue in the main proceedings.

74.      With regard, first of all, to Article 4(1) of Directive 2000/78, I note that, under that provision, ‘notwithstanding Article 2(1) and (2) [of that directive], Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 [of that directive] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate’.

75.      In that regard, the Court has held that it is not the ground on which the difference of treatment is based but a characteristic related to that ground which must constitute such a genuine and determining occupational requirement. (18)

76.      In addition, in so far as it allows a derogation from the principle of non-discrimination, Article 4(1) of Directive 2000/78, read in the light of recital 23 thereof, which refers to ‘very limited circumstances’ in which such a difference of treatment may be justified, must be interpreted strictly. (19)

77.      With regard to whether a characteristic related to age could, in the context of the case in the main proceedings, constitute a ‘genuine and determining occupational requirement’, within the meaning of Article 4(1) of Directive 2000/78, the Court has consistently held that the possession of particular physical capacities is a characteristic related to age. (20) However, unlike in the occupational fields brought before the Court for its assessment, namely, for instance, intermediate career posts in the fire service, (21) police officers (22) or aircraft pilots, (23) recourse to physical strength related to age for the purposes of recital 18 of that directive is irrelevant in the dispute in the main proceedings.

78.      That being said, I do not consider that a characteristic related to age necessarily has to consist in the possession of particular physical capacities in order to be able to constitute a ‘genuine and determining occupational requirement’ within the meaning of Article 4(1) of Directive 2000/78. Every age is also characterised by other aptitudes, particularly those of a social or psychological nature. However, the crucial factor appears to me to be that the characteristic related to age thus identified is objectively dictated by the nature of the particular occupational activities concerned or by the context in which they are carried out. In other words, that characteristic must be essential to the proper performance of such activities.

79.      I have already observed that the personal assistance provided to a person with disabilities concerns all areas of life and reaches into the private and intimate areas of that person’s life. Furthermore, that assistance may meet different needs, including, in this case, providing support to A. in the context of her university studies.

80.      Taking those factors into account, an age preference such as that at issue in the main proceedings appears to me to be entirely understandable and, furthermore, this is what led me to consider in the foregoing that taking into account a wish of that kind may be justified in the light of Article 2(5) of Directive 2000/78.

81.      However, the finding that it is preferable, from A.’s point of view, that her personal assistant is aged between 18 and 30 years, on account of the psychological and social characteristics specific to that age range, does not mean that those characteristics can be regarded as being essential to the performance of the various tasks of which the personal assistance service is comprised and, in particular, those relating to the provision of assistance in connection with university studies. As the Commission correctly states, an assistant whose age falls outside the age range in question could also perform the tasks required as part of the personal assistance service, including those relating to university life.

82.      The case-law of the Court seems to me to argue to that effect. Indeed, the Court has held that the concept of a ‘genuine and determining occupational requirement’, within the meaning of Article 4(1) of Directive 2000/78, refers to a requirement that is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out. It cannot, however, cover subjective considerations, such as the willingness of the employer to take account of the particular wishes of the customer. (24) In my view, it follows from that case-law that, under Article 4(1) of that directive, only characteristics that are objectively essential, in each specific case, to the performance of the occupational activities in question may be classified as ‘genuine and determining occupational requirements’. In the present case, contrary to what the respondent in the main proceedings in particular contends, it is established that the occupational activities concerned could also be carried out, from an objective standpoint, by a person whose age falls outside the desired range, even though, from A.’s point of view, the service provided would then meet her needs to a less satisfactory extent, in particular the need regarding assistance in connection with her university studies.

83.      I note, in that connection, that the needs which must be met by a personal assistance service cannot be determined in advance, or at least not fully, since that type of service inherently involves meeting legitimate wishes expressed, on a case-by-case basis, by the person who is to receive the service.

84.      It is the need to tailor each service to each specific situation, according to the needs expressed, which prevents, by virtue of its subjective nature, one desired characteristic or another from being regarded as constituting a genuine and determining occupational requirement objectively dictated by the nature of the activities or by the context in which they are carried out.

85.      Thus, the wish relating to a given age range is the result of a subjective consideration, in that it is specific to the person assisted in the particular case, namely that a person falling within that age range will provide her with a higher quality of service. That being said, the expression of such a preference does not mean that the characteristics specific to that age range, in particular with regard to aptitudes of a social or psychological nature, are objectively dictated by the personal assistance activity. In other words, from the point of view of the person assisted, the assistance required will better meet his or her needs. However, another assisted person could take the view that the experience and maturity acquired over the professional life of an older personal assistant would allow that assistant to better serve his or her needs.

86.      A characteristic related to age which, from the perspective of the person with disabilities, contributes to improving the context in which a personal assistance service is carried out cannot therefore, in my view, constitute a ‘genuine and determining occupational requirement’, within the meaning of Article 4(1) of Directive 2000/78, since this would involve taking into account, in every case, the point of view of the person receiving that service. Accepting that wishes expressed, as legitimate as they may be, can support a finding that such a genuine requirement exists seems to me, moreover, incompatible with the need to interpret that provision strictly and to accept the justification provided for therein only in ‘very limited circumstances’, as stated in recital 23 of that directive.

87.      In the light of those factors, it is my view that the difference of treatment related to age at issue in the main proceedings cannot be justified under Article 4(1) of Directive 2000/78.

88.      Next, as regards the first subparagraph of Article 6(1) of Directive 2000/78, that provision states that, ‘notwithstanding Article 2(2) [of that directive], Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary’.

89.      With regard to the requirement of a legitimate aim, within the meaning of the first subparagraph of Article 6(1) of Directive 2000/78, it should be recalled that the Court has held that the aims which may be considered ‘legitimate’ and, consequently, appropriate for the purposes of justifying derogation from the principle prohibiting discrimination on grounds of age, are social policy objectives, such as those related to employment policy, the labour market or vocational training. By their public interest nature, those legitimate aims are distinguishable from purely individual reasons particular to the employer’s situation. (25)

90.      As I have already set out, the national legislation serving as the basis for the individual measure in question in the main proceedings is intended to take into account the right of persons with disabilities to organise how they live their life in as self-determined and independent a manner as possible and to strengthen the personal autonomy of the persons concerned as well as their motivation to participate in the community, on an equal basis with others and with respect for their dignity. However, such an aim is not a legitimate employment policy, labour market or vocational training objective, within the meaning of the first subparagraph of Article 6(1) of Directive 2000/78. I am therefore of the view that that provision is irrelevant for the purpose of justifying the difference of treatment on grounds of age at issue in the main proceedings.

91.      Lastly, it is necessary to examine whether Article 7 of Directive 2000/78 is applicable in the present case.

92.      Paragraph 1 of that article provides that, ‘with a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1 [of that directive]’. Paragraph 2 of that article provides that, ‘with regard to disabled persons, the principle of equal treatment shall be without prejudice to the right of Member States to maintain or adopt provisions on the protection of health and safety at work or to measures aimed at creating or maintaining provisions or facilities for safeguarding or promoting their integration into the working environment’.

93.      Like the Commission, I take the view that neither the individual measure at issue in the main proceedings nor the national legislation upon which that measure is based falls within the scope of Article 7 of Directive 2000/78, which, as is apparent from its wording, is intended to ensure equality in practice (that is to say, in professional life). That is not, however, the objective pursued by that legislation and by that measure.

94.      With regard, first, to paragraph 1 of that article, it follows from paragraph 64 of the judgment of 22 January 2019, Cresco Investigation, (26) that that provision is specifically and exclusively designed to authorise measures which, although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequality which may exist in society. In the light of the fact that that directive is intended, as is clear from its title and the preamble to it, as well as from its content and purpose, to establish a general framework for equal treatment in employment and occupation, (27) the word ‘society’ must be understood, in my view, as referring only to professional life.

95.      As regards, second, Article 7(2) of Directive 2000/78, its purpose is to authorise specific measures aimed at effectively eliminating or reducing actual instances of inequality affecting people with disabilities, which may exist in their social lives and, in particular, their professional lives, and to achieve substantive, rather than formal, equality by reducing those inequalities. (28) Whilst paragraph 47 of the judgment of 9 March 2017, Milkova, (29) could be interpreted as meaning that the scope of that provision is not confined solely to a person’s professional life, such an interpretation should in my view be rejected for the reason related to the purpose of that directive which I have set out in the preceding point of this Opinion. Moreover, I note that, in the judgment of 17 July 2008, Coleman, (30) the Court explicitly limited the scope of the abovementioned provision to the ‘working environment’.

96.      Moreover, in answer to the question put by the referring court on this matter, I do not think that taking account of Article 5(1) and (4) of the UN Convention can have the effect of extending the scope of Article 7 of Directive 2000/78 beyond measures relating to equality in professional life.

97.      In view of those facts, Article 7 of that directive does not appear to me to be relevant for the purposes of justifying the difference of treatment on grounds of age at issue in the main proceedings, the objective of that difference being to guarantee, in general terms, the autonomy of persons with disabilities and their inclusion in society. (31)

V.      Conclusion

98.      In the light of all the foregoing considerations, I propose that the Court answer the question referred for a preliminary ruling by the Bundesarbeitsgericht (Federal Labour Court, Germany) as follows:

Article 2(5) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, read in the light of Article 26 of the Charter of Fundamental Rights of the European Union and of Article 19 of the United Nations Convention on the Rights of Persons with Disabilities,

must be interpreted as not precluding a situation in which, on the basis of national legislation providing that the wishes of persons with disabilities as regards the organisation of the personal assistance which they receive must be taken into account in order to guarantee their autonomy and inclusion in society, the hiring of a personal assistant is subject to an age condition, provided that such a measure is necessary for the protection of the rights and freedoms of others.

1      Original language: French.

2      OJ 2000 L 303, p. 16.

3      ‘The Charter’.

4      OJ 2010 L 23, p. 35; ‘the UN Convention’.

5      BGBl. 1949 I, p. 1; ‘the GG’.

6      BGBl. 2006 I, p. 1897; ‘the AGG’.

7      BGBl. 1975 I, p. 3015; ‘SGB I’.

8      BGBl. 2016 I, p. 3234; ‘SGB IX’.

9      I note that the job offer at issue in the main proceedings also contains a selection criterion related to the sex of the personal assistant sought. However, since the referring court asks the Court only about the justification, in the light of Directive 2000/78, of the difference of treatment on grounds of age, the Court will not have to examine in its judgment whether that sex-related criterion, which falls outside the scope of that directive, is discriminatory.

10      See, inter alia, judgment of 12 January 2023, TP (Audiovisual editor for public television) (C‑356/21, EU:C:2023:9, paragraph 70 and the case-law cited).

11      See, inter alia, judgment of 12 January 2023, TP (Audiovisual editor for public television) (C‑356/21, EU:C:2023:9, paragraph 71 and the case-law cited).

12      The referring court also refers, in that regard, to the statement of reasons for Paragraph 78(2) of SGB IX.

13      In the same vein, I note that it follows from the case-law of the Court that Member States may authorise, through rules to that effect, social partners to adopt measures, within the meaning of Article 2(5) of Directive 2000/78, in the domains referred to in that provision that fall within collective agreements. Those security clearance rules must be sufficiently precise so as to ensure that those measures fulfil the requirements set out in the said Article 2(5): see judgment of 13 September 2011, Prigge and Others (C‑447/09, EU:C:2011:573, paragraph 61).

14      See, inter alia, judgment of 10 February 2022, HR Rail (C‑485/20, EU:C:2022:85, paragraph 38 and the case-law cited).

15      See Article 19(a) of the UN Convention.

16      See Article 19(b) of the UN Convention. In relation to such matters, see United Nations Committee on the Rights of Persons with Disabilities, ‘General comment no. 5 (2017) on living independently and being included in the community’.

17      For a similar approach, see judgments of 12 January 2010, Wolf (C‑229/08, EU:C:2010:3, paragraph 45), and of 15 November 2016, Salaberria Sorondo (C‑258/15, EU:C:2016:873, paragraph 49).

18      See, inter alia, judgment of 17 November 2022, Ministero dell’Interno (Age limit for the recruitment of police officers) (C‑304/21, EU:C:2022:897, paragraph 45 and the case-law cited).

19      See, inter alia, judgment of 21 October 2021, Komisia za zashtita ot diskriminatsia (C‑824/19, EU:C:2021:862, paragraph 45 and the case-law cited).

20      See, inter alia, judgment of 17 November 2022, Ministero dell’Interno (Age limit for the recruitment of police officers) (C‑304/21, EU:C:2022:897, paragraph 46 and the case-law cited).

21      See judgment of 12 January 2010, Wolf (C‑229/08, EU:C:2010:3).

22      See judgment of 15 November 2016, Salaberria Sorondo (C‑258/15, EU:C:2016:873).

23      See judgment of 7 November 2019, Cafaro (C‑396/18, EU:C:2019:929).

24      See judgment of 14 March 2017, Bougnaoui and ADDH (C‑188/15, EU:C:2017:204, paragraph 40).

25      See judgment of 5 March 2009, Age Concern England (C‑388/07, EU:C:2009:128, paragraph 46).

26      C‑193/17, EU:C:2019:43.

27      See, inter alia, judgment of 2 June 2022, HK/Danmark and HK/Privat (C‑587/20, EU:C:2022:419, paragraph 31).

28      See judgment of 9 March 2017, Milkova (C‑406/15, EU:C:2017:198, paragraph 47).

29      C‑406/15, EU:C:2017:198.

30      C‑303/06, EU:C:2008:415, paragraph 42.

31      In so far as is relevant, and even though the referring court did not mention it in the question referred for a preliminary ruling, I would also point out that the application of Article 5 of Directive 2000/78, under which reasonable accommodation for disabled persons is enshrined, must also be rejected, since that article concerns measures to be taken by employers to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training; this has no bearing on the situation at issue in the main proceedings.

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