Rights and Equality Law in Northern Ireland Post Brexit: An unfolding reality

 

Colin Murray, Reader in Public Law, Newcastle University

Photo credit: Chmee2, via Wikimedia commons

 

All of the talk of Getting Brexit Done, as it turns out, was hokum. The UK Government have made it clear that they are unhappy with the Protocol on Ireland and Northern Ireland that they negotiated with the EU and want to see it radically changed. That much is well known. But, at a deeper level, much of the task of understanding what Brexit, and the Protocol, means in practice is only beginning. The Withdrawal Agreement, and indeed the Protocol as part of it, is not in terms of UK domestic law an unincorporated treaty; section 7A of the European Union (Withdrawal) Act 2018 (inserted as part of the European Union (Withdrawal Agreement) Act 2020) makes it operative as part of the UK’s domestic jurisdictions.

This produces a series of complex interactions between the Withdrawal Agreement’s requirements, new legislation and retained EU law that are only now being subject to litigation. This post examines the level of indeterminacy inherent in Article 2 of the Withdrawal Agreement’s Protocol on Ireland and Northern Ireland, the provision which is supposed to secure the operation of EU law’s rights and equality protections in Northern Ireland post Brexit, and the first judicial efforts to understand how it works.

 

Article 2

Northern Ireland has frequently been at the forefront of Brexit debates. Notwithstanding the attention paid to the unique relationship that it continues to have with the EU after Brexit, comparatively little has been said about the human rights and equality dimensions of the Protocol than its trade provisions. Under Article 2(1) of the Protocol, significant parts of EU rights and equality law continue to apply to Northern Ireland:

The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

It might not be immediately apparent, Article 2 provides for two separate obligations. The first relates to the EU law measures listed in Annex 1. At present, this covers six directives which make up the backbone of EU law’s protections against discrimination on the basis of protected characteristics; the Racial Equality Directive, Employment Equality (Framework) Directive, Gender Goods and Services Directive, Equal Treatment (Employment) Directive, Self-Employment Equal Treatment Directive, Equal Treatment in Social Security Directive. The full scope of these protections is only evident when Article 2 is read alongside Article 13(3) and 13(4) of the Protocol, which place the United Kingdom under a general obligation to ensure the law applicable in Northern Ireland reflects developments in European Union law relating to the Annex 1 directives. In other words, Northern Ireland law must be reformed to “keep pace” with developments in these aspects of EU law.

The second, more general, obligation upon the UK is to avoid any diminution, as a result of Brexit, of the protections provided by EU law which underpin the terms of the Rights, Safeguards and Equality of Opportunity section of the Belfast/Good Friday Agreement 1998. This is a lot to unpack, but taken at face value it is designed to preserve the operation of a range of EU law related to rights and equality in the context of Northern Ireland. Much of this continues to operate, post Brexit, as retained EU law, but as the UK Government moves to overwrite retained measures this opens up the possibility that the non-diminution guarantee will prevent or restrict divergences in Northern Ireland law. The more that Westminster seeks divergence for Great Britain from EU law with rights and equality elements (setting devolved competences in Wales and Scotland aside for the moment), the more prominent Article 2 will become in sustaining a distinct set of arrangements for Northern Ireland.

The Northern Ireland courts are responsible for administering the EU law relevant to Article 2 without direct oversight by the EU’s courts. This is perhaps surprising given the zeal with which the CJEU ordinarily guards its function to oversee the application of EU law, and operates very differently in this regard from the Protocol’s provisions on the marketing of goods in Northern Ireland (Article 12). Under Article 13(2), however, the courts in Northern Ireland are required to interpret the provisions of the Protocol ‘in conformity’ with relevant CJEU case law. This is a more extensive obligation than that set out in Article 4 of the Withdrawal Agreement; the Northern Ireland courts must continue to track CJEU case law as it develops.

All of this makes for a dizzyingly complex set of arrangements. EU law works as an interconnected whole, underpinned by the operation of general principles. In terms of equality and rights, however, the Protocol maintains the operation of some parts of EU law in full as it develops, a frozen in time version of other parts of EU law, and accepts that the UK can remove other parts of EU law (not covered by Annex 1 or connected to the 1998 Agreement). The non-diminution guarantee is particularly challenging for the courts to operate; the Northern Ireland courts will have to take account of CJEU case law as it develops and potentially retrofit it to apply to the operation of the version of EU law which was in place during the Brexit transition/implementation period. The scope of this guarantee, moreover, depends on the extent to which the courts accept that an EU law measure can be connected to the Rights, Safeguards and Equality of Opportunity section of the 1998 Agreement and its non-exhaustive collection of rights and equality aspirations which was not, at the time, intended to be determinative in legal disputes.

 

The SPUC Decision

For the last couple of years, therefore, the extent of the non-diminution guarantee has been the subject of considerable debate, but litigation was always going to be required to determine how the Northern Ireland courts approach these obligations. The first of these challenges has come from the Society for the Protection of Unborn Children (SPUC), questioning the legality of the Abortion (Northern Ireland) Regulations 2021. SPUC claimed that the new legislation was discriminatory in its impact on persons with disability and that, because EU law protects against disability discrimination, these measures could not, because of Article 2, undermine these protections.

Colton J, in the Northern Ireland High Court, rejected these claims. Although an appeal has been launched, there were multiple grounds on which this challenge failed, most significantly the need to connect the operation of Article 2 to something that would, prior to Brexit, have been an EU competence; EU law’s protections against disability discrimination do not extend to cover how EU Member States provide for reproductive rights. Moreover, the challenge was, in essence, a disguised effort to challenge parts of the 2020 Regulations, which, being in place before the end of the Brexit transition/implementation period, could not have been treated as being consequent upon Brexit. The significance of the case is not, therefore, the outcome, but the detail in which Colton J worked through the stages of a non-diminution claim under Article 2, providing a blueprint for how this will be tackled in future cases.

Colton J first affirmed that Article 2 has direct effect and can be relied on by legal persons in domestic courts. This was not contentious in the case, but is nonetheless significant. For all that the scope of the Annex 1 directives is clear, the extent of EU law covered by the non-diminution guarantee is more of a challenge to ascertain, and the first way to curtail the operation of these elements of Article 2 would be to deny direct effect within the scope of Article 4 of the Withdrawal Agreement. Colton J, not only accepted direct effect, but prominently flagged UK Government commitments to allowing Article 2 to be relied on in this way (at [77]).

Colton J then affirms that the Withdrawal Agreement potentially allows for a broad sweep of EU rights and equality law to apply under Article 2 of the Protocol (at [78]):

The combined effect of section 7A EUWA 2018 and Article 4 of the Protocol limits the effects of section 5(4) and (5) of the EUWA 2018 and Schedule 1, para 3 of the same Act which restrict the use to which the Charter of Fundamental Rights and EU General Principles may be relied on after the UK’s exit.  

It is worth noting an error in the judgment in this paragraph – it isn’t Article 4 of the Protocol but of the Withdrawal Agreement that is at issue here. But the point remains the same; direct effect and supremacy apply to the EU law which falls within the ambit of Article 2 of the Protocol, and that can include the Charter of Fundamental Rights and EU General Principles notwithstanding section 5 of the Withdrawal Act 2018 excluding the Charter from retained law.

Having set out this broad playing field, Colton J then summarises the necessary connection between the rights and equalities section of the 1998 Agreement and EU law (at [83]):

[T]here must be a diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled “Rights, Safeguards and Equality of Opportunity” that is, there must have been a protection that existed before the withdrawal of the United Kingdom from the European Union which does not exist after, and as a consequence of, that withdrawal.

Having set up the key hurdle for SPUC to cross, this is where the claim breaks down (at [132]):

[T]he applicant cannot establish, as he was required to do if he was to rely upon Article 2, that the equality of opportunity protection identified in the 1998 Agreement has been given effect in the legal order of Northern Ireland on or before 31 December 2020.  The alleged right relied upon was not underpinned by EU law prior to 31 December 2020 and therefore there has been no change in Northern Ireland law on this issue as a result of the UK’s exit from the EU.

The most important feature of this decision is that Colton J does not seek to read the provisions of the 1998 Agreement restrictively. Instead, he puts much of the weight of his decision on requiring SPUC to demonstrate how EU law protected this right prior to the end of the transition/implementation period (31 December 2020). Hence the “frozen in time” nature of EU rights and equality law in Northern Ireland. EU law textbooks from around 2020 will continue to attract a premium in this small jurisdiction for anyone seeking to rely on Article 2’s non-diminution guarantee will have to show how EU law operated at this time.

 

The Fights to Come

Now that the SPUC decision has laid some of the groundwork for managing complex non-diminution claims, stronger claims could be waiting in the wings following the passage of the Elections Act 2022 and Nationality and Borders Act 2022. These need to be considered in turn.

EU citizens resident in Member States other than their home state enjoy rights with regard to local government (EU Charter of Fundamental Rights, Article 40 and Treaty on the Functioning of the European Union, Article 22). This is significant in the Northern Ireland context, because the local government franchise also provides the basis for the franchise for Northern Ireland Assembly elections. Under the Elections Act, Westminster legislated to connect electoral rights to whether or not a reciprocal arrangement exists for UK citizens resident in European Union Member States (such arrangements have already been concluded with Spain, Portugal, Luxembourg and Poland). This is a complex set of arrangements; it relates to EU citizens who became resident in the UK since the start of 2021 (because of the Withdrawal Agreement’s protections for existing resident EU citizens) and is constrained in its ambit because local elections are devolved matters in Wales and Scotland.

Insofar as the Act seeks to curtail a right underpinned by EU law which was operative in 2020, the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission,  which have responsibility for overseeing the operation of Article 2, have identified that this raises potential Article 2 issues around its operation in Northern Ireland (which do not apply to the restriction of these rights in England). Democratic participation rights are explicitly covered by the Rights, Safeguards and Equality of Opportunity section of the 1998 Agreement.

On a direct application of the Article 2 test, had it not been for Brexit, UK legislation could not restrict this right without breaching EU law. The UK Government has made two responses to the possibility of an Article 2 challenge in the course of parliamentary discussion over the new law. First, ministers claim that voting rights for EU citizens must be treated as ancillary rights, and that Brexit has restricted freedom of movement:

[T]he UK is no longer a Member State, EU citizens self-evidently no longer enjoy the right to reside here under the EU Treaties and so the ancillary Article 22 TFEU right to vote and participate in municipal elections is no longer applicable …

Second, ministers note that the new legislation maintains ‘the voting and candidacy rights of EU citizens who were resident here by the end of the Withdrawal Agreement transition period (31 December 2020)’, buttressing the claim that the law is Article 2 compliant on the basis that EU citizens who enjoyed the right during the implementation/transition period will not be adversely affected by the new measures. Litigation is thus likely to test how the courts approach the ‘but for’ test under Article 2. If the courts do not accept the Government’s assertions, section 7A of the European Union (Withdrawal) Act 2018 will operate to disapply the restrictions insofar as they conflict with the Protocol. A similar case for an Article 2 protection, however, cannot be made regarding Northern Ireland Assembly elections. As EU law does not provide EU citizens with a right regarding such regional elections, it is not possible to construct a legal challenge to restrictions to such participation.

The Nationality and Borders Act 2022 disapplies elements of the Trafficking Directive (Directive 2011/36/EU) which had hitherto been part of retained EU law. Although the Trafficking Directive is not listed in the Annexes to the Protocol, this measure is ‘closely linked to’ the Victims’ Directive, which the UK Government has generally accepted is included within the non-diminution commitment contained in Article 2 of the Protocol. This removal of protections for trafficked persons, insofar as they apply to Northern Ireland, therefore raises potential Article 2 issues.

The UK Government again dismiss these concerns, asserting that the Trafficking Directive is too far removed from the substance of the rights of victims under the Rights, Safeguards and Equality of Opportunity provisions;

It is clear from the language used in this section, from the object and purpose of the Agreement and from its overall context, that the drafters had in mind the victims of violence relating to the conflict in Northern Ireland as opposed to all victims in a broad, general sense.

As was noted above, however, this part of the Agreement does not function as a closed list of rights, as the UK Government appears to assert. Once again, the profound disagreements over the operative extent of Article 2’s terms will likely only be settled by the litigation of such contentious issues.

Where to next?

Last year, even as it tried to secure a major reworking of the Protocol's operation, the UK government continued to claim that the workings of Article 2 were 'not controversial'. It's tempting to say, perhaps, that they are not yet controversial. There is considerable scope for controversy to emerge as changes to the operation of retained EU law by Westminster open up divergences with the ways rights and equality provisions operate in Northern Ireland post Brexit, especially as the battles over the Protocol's provisions relating to goods look set to be renewed following the outcome of the Northern Ireland Assembly elections. If controversy does develop around Article 2, however, it will be all the more important that the groundwork for judicial approaches to the Protocol is already being set, and as new challenges emerge, we will start to get a better picture of how Northern Ireland's judges use the considerable latitude its terms allow them.  

More majority voting on EU social policy? Assessing the Commission proposal

Ane Aranguiz, PhD Candidate, University of Antwerp

On 16 April 2019 the Commission launched the discussion on how to render decision-making process at EU level more efficient in the social field by activating the passerelle clauses and moving from unanimity to qualified majority voting (QMV) and from special to ordinary legislative procedure without undergoing an unwieldly process of Treaty reforms – although a unanimous vote of Member States is still necessary to approve this change.

The passerelle clauses are part of a number of ‘flexibility mechanisms’ introduced by the Lisbon Treaty that allow to simplify the decision-making process thereby enabling a more efficient exercise of EU competences where special legislative procedure and unanimity are maintained. The Lisbon Treaty provides for a general passerelle clause enshrined in Article 48(7) TEU that is applicable to all policy areas -with the exception of military or defence-related decisions-, as well as specific passerelle clauses that apply only in certain policy areas, namely, Article 32(3) TEU on Common Foreign and Security Policy, Article 82(3) TFEU on judicial cooperation in civil matters, Article 153(2) TFEU on social policy,  Article 192(2) TFEU on environmental policy and Article 312(2) TFEU on the Multiannual Financial Framework.

Background

This Communication is the last of a series of four aiming at reviewing the passerelle clauses provided for the EU Treaties as envisioned by President Juncker in his 2018 State of the Union address. In September 2018, the Commission presented the first proposal on common foreign and security policy, followed by a communication in January 2019 on taxation. In April 2019, the Commission presented the last two proposals first on energy and climate and later on social policy. (None of these proposals has been followed up by the Member States yet).

In social policy, most areas where the EU has competence to act are already subject to QMV and ordinary legislative procedure, which has allowed for an expansion of the social acquis at the EU level over the years. Yet, a reduced but significant number of areas of social policy still require unanimity among EU Member States and a special legislative procedure. These areas include measures relating to the protection against dismissal, social representation and defence of workers’ and employer’s interests, conditions of employment for third-country legal residents, non-discrimination (based on gender, racial or ethnic origin, religion or belief, disability, age, and sexual orientation) and social security and social protection for workers outside cross-border situations.

The specific passerelle clause under Article 153(2) would allow for the transition of the first three areas, whereas the general passerelle could further be applied to the latter two. Differences remain between the general and specific passerelle clauses regarding the procedural requirements for their activation. In order to activate the general clause, the European Council has to take the initiative and indicate the precise envisaged change in the decision-making procedure and notify national parliaments, which have up to six months to object to the proposal. After that, the European Council may, by unanimity and once consent by the European Parliament has been obtained, adopt the decision authorising the Council to act by QMV or enabling the adoption of the corresponding measures by ordinary legislative procedure. This procedure allows also for the half-way activation of the clause where they move from unanimity to QMV while maintaining the special legislative procedure. The activation of the specific passerelle clause, differently, is ‘only’ subject to unanimous agreement in the Council on the basis of a proposal by the Commission and after consultation with the Parliament.

According to the Commission, other than the fact that these policy areas might have major implications on the financial equilibrium of the national welfare systems, a limitation specifically provided for in Article 153(4)TFEU, there is seemingly no logical reasons that explain why these fields remain subject to unanimity and special legislative procedure. Consequently, in December 2018 the Commission presented its roadmap for the proposal for more efficient law-making in social policy and opened the feedback period that collected 27 opinions from different stakeholders.

The Communication

The Communication opens the debate on the enhanced use of QMV and ordinary legislative procedure with the aim of rendering the decision-making process more timely, flexible and efficient.

The Communication emphasizes that while the activation of the passerelle clause would change the decision-making method, it would not alter the overall EU legal framework and earmarked that EU measures are still subject to the principles of subsidiarity and proportionality, the limitations under the social policy title Article 153 TFEU regarding, inter alia, defining fundamental principles of social security or the specifically excluded areas of the right to association, the right to strike and the right to impose lockouts.

Further in the Communication, the Commission discusses the possibility of activating the passerelle clause in the five areas where unanimity and special legislative procedure is still required. Yet, the Commission concludes that only in two out of the five areas the activation of the would passerelle clause have an added value. Firstly, the Commission argues in favour of the use of the passerelle clause in the field of non-discrimination to facilitate equal protection against discrimination that guarantees an effective redress mechanism for all. Particularly, the Commission states that while there is certain level of protection for gender and racial discrimination in employment, equal treatment on the grounds of belief, disability, age and sexual orientation remains protected only in employment and occupation. The Commission considers necessary to address the inconsistent and incoherent EU legal framework where some individuals are better protected than others. (Note that a Commission proposal in this field from 2008 has not yet been agreed).

The Commission also sees suitable to activate the general passerelle clause with regard to social security and social protection of workers for the adoption of recommendations in the near future. The Commission here recalls the recently politically agreed recommendation on access to social protection for workers and the self-employed which is still pending for final adoption, and considers that a more effective decision-making process is desired to support the process of modernisation and convergence of national social protection systems.

Nevertheless, as for the other three fields where unanimity and special legislative procedure is required, namely, protection against dismissals, employment conditions of third-country nationals and the representation and collective defence of the interests of workers and employers, the Commission does not see fit to activate the passerelle clause due to either the limitations envisioned in the Treaty, the sufficiency of the existing legislation or the strong links and diversity between national social protection systems.

Commentary

The proposal put forward by the Commission should be given a cautious welcome. From a positive standpoint, the fact that most of social policy fields where the EU has competence require QMV and unanimity is required only in few domains leads to an uneven a fragmented development of the social acquis. Moving from unanimity to QMV in those limited areas allows for a swiftly and effective policy response in all areas of EU law and prevents one single Member State from vetoing social initiatives while still requiring a high degree of consensus. Secondly, transitioning to an ordinary legislative procedure allows for highlighting the role of the European Parliaments as a co-decision making. While the special legislative procedure relegates the role of the European Parliament to the subordinated position of a mere consultant, in ordinary legislative procedures the European Parliament becomes an equal to the Council and allows for a more democratic decision-making process where the direct beneficiaries are being represented. The activation of passerelle clauses in the social field would therefore not only avoid blockage by a single Member State, but also give the European Parliament a real co-legislator role. Considering the obstacles faced in the adoption of social policy legal instruments due to the lack of consensus in the Council, an active involvement of the usually more socially progressive European Parliament, is likely to free the decision-making process in social matters to a certain extent.

Yet, there are a number of points of concern. To begin with, the activation of the passerelle clause is only envisioned for two out of the five social policy areas that still require unanimity and the special legislative procedure. Moreover, these are the exact same two that cannot rely on the special passerelle clause under Article 153(2) but must be based on the general provision under Article 48(7) which, in turn, requires a much stricter procedural formula. On top of this, one of the two fields, namely social security and social protection of workers, is only contemplated with regard to the adoption of recommendations, thus disregarding the possibility to adopt binding instruments. This is particularly striking when considering the challenges faced recently by the Commission in the formulation of a measure for access to social protection of workers and self-employed, where the Commission inclined for a proposal for a recommendation due to the lack of political support to adopt a binding instrument by Member States.

The activation of the passerelle clause is clearly a positive development, yet, the fact that this is such a limited activation is highly regrettable. Continued fragmentation on social policy may moreover lead to the use of enhanced cooperation, where Member States might separately agree on social policy instruments for higher protection of their citizens. Yet, this will unquestionably result in a two-speed Europe between those Members within and out the enhanced cooperation framework.

The dynamism of the Commission in the context of the European Pillar of Social Rights provides the perfect platform to keep adapting, updating and adopting new social legislation at the EU level thus aligning EU law with the social priorities identified by Juncker’s Commission. If, and this is a big if, the discussion opened by the Commission leads to activating the passerelle clause (even if only limitedly), it will in all likelihood lead to new proposals by the Commission tackling non-discrimination in a more comprehensive manner that could be adopted in a more efficient manner. However, this will fundamentally depend on whether or not the next Commission resumes the enthusiastic social activism of the Juncker delegation.

Yet, if the Pillar is indeed the last chance for social Europe that many have claimed, this initiative represents a missed opportunity to render effectiveness in the decision-making process in social policy by closing the door to facilitating measures tackling clear gaps on the current EU legislation, most clearly with regard to protection against dismissals. It is equally regrettable the choice to limit the use of the passerelle clause to adopt a binding unified response to the inadequacies of our current social protection systems. In times of increased Euroscepticism and rising non-standard forms of employment, providing a response to concrete needs of citizens remains an imperative for future-proving the EU, therefore, it is in the best interest of the same to remove any obstructions of the use of Union competences that allow to move closer to an actual social market economy. At the very least, this initiative embodies the intention to partially unclog the ‘way’ when there is certain degree of ‘will’.

Barnard & Peers: chapter 20

Photo credit: The Independent

The Marrakesh Treaty judgment: the ECJ clarifies EU external powers over copyright law

Gesa Kübek, PhD candidate at the law faculty of the University of Passau.

On 14th February 2017, the European Court of Justice (ECJ) concluded, in Opinion 3/15, that the European Union (EU) is exclusively competent to conclude the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (hereafter: Marrakesh Treaty). Its decision in Opinion 3/15 mirrors, at first sight, Advocate General (AG) Wahl’s Opinion, which equally argued that the EU has exclusive competence to conclude the Marrakesh Treaty. A closer look at Opinion 3/15, however, reveals that the Court opted for a much stricter interpretation of the scope of the EU’s Common Commercial Policy (CCP) – ie the EU’s international trade powers – than the AG. Moreover, the Court’s answer to the question of exclusivity does not clarify the correct choice of legal basis.

The following blog post provides an overview of the Court’s Opinion 3/15 and a short analysis thereof. The first part describes the conflict at stake and the arguments of the parties. The second part outlines the Court’s position. The final section discusses some of the implications of Opinion 3/15 for EU treaty-making.

The conflict at stake: Questions of exclusivity and the choice of legal basis

In June 2013, the World Organisation on Intellectual Property (WIPO) finalised the negotiations of the Marrakesh Treaty, which aims to facilitate access to published work for persons who are blind, visually impaired or otherwise print disabled (hereafter: “beneficiary persons”). The Marrakesh Treaty stipulates two separate, but interrelated instruments to fulfil its objectives. First, it obliges its contracting parties to provide for an exception or limitation to the rights of reproduction, distribution and making available to the public in order to make format copies more readily available for beneficiary persons. Second, it facilitates the cross-border exchange of accessible format copies.

In April 2014, the EU Council decided to sign the Marrakesh Treaty for the European Union based on Article 207 TFEU (the EU’s CCP power) in conjuncture with Article 114 TFEU (the EU’s internal market power, which is the basis for harmonising copyright law within the EU, among other things). The subsequent Commission proposal for the conclusion of the agreement was, however, rejected by the Member States as represented in the Council, which caused fierce institutional debate over the choice of legal basis. According to the Commission, Arts. 207 and 114 TFEU were correctly selected. In the alternative, the Marrakesh Treaty may be based on the CCP alone, which the Lisbon Treaty confirms as an exclusive competence (Art. 3 (1) (e) TFEU). In any event, the Commission argued that the rights and obligations comprised by the Marrakesh Treaty were largely harmonized by EU internal legislation. As a result, it asserted that exclusive EU competence can be implied (Art. 3 (2) TFEU). 

The eight intervening Member States rejected the assumption of EU exclusivity. Instead, in their view, the competences to conclude the Marrakesh Treaty ought to be shared, which may result in the conclusion of a “mixed agreement” that lists both the EU and the Member States as contracting parties. Given the persisting institutional conflicts, the Commission asked the Court to clarify whether the EU has the exclusive competence to conclude the Marrakesh Treaty.

As was stated above, AG Wahl supported the Commission’s quest for exclusive EU treaty-making powers. Somewhat surprisingly, the AG, however, determined that the Marrakesh Treaty should be concluded on the basis of Art. 207 TFEU on the CCP and – as contended by numerous Member States - Art. 19 (1) TFEU, the EU’s power to adopt many non-discrimination laws. The latter provision underlines the Marrakesh Treaty’s objective to promote non-discrimination, equal opportunity, accessibility and participation of disabled persons in the society. Despite the implication of exclusivity, the choice of Art. 19 (1) TFEU entails important procedural consequences: As the provision stipulates that the adoption of EU legislation requires unanimity in the Council, EU treaty-making under the anti-discrimination power equally grants the Member States veto powers in the Council (Art. 218 (8) TFEU).

The Court‘s position in Opinion 3/15

In order to answer the preliminary question, the Court, first, examined whether the Marrakesh Treaty, in full or in part, falls within the scope of the CCP. Thereafter, the ECJ analysed whether exclusivity can be implied within the meaning of Art. 3 (2) TFEU.

The reach of “commercial aspects of intellectual property rights”

To start with, the Court recalled that according to settled case-law, an EU act falls within the CCP “if it relates specifically to international trade in that it is essentially intended to promote, facilitate or govern trade and has direct and immediate effects on trade” (Daiichi Sankyo). Conversely, the mere fact that an EU act is liable to have implications on international trade is not enough for it to be concluded under the CCP.

In its subsequent reasoning, the Court outlined that neither one of the aforementioned instruments of the Marrakesh Treaty intends to promote, facilitate or govern international trade. The Court’s Opinion is particularly striking with regard to the import and export of format copies, as “there is no doubt that those rules relate to the international trade of such copies” (para 87). Nevertheless, the Court stated that the cross-border exchange specified by the Marrakesh Treaty cannot be equated with international trade for commercial purposes. On the one hand, the objective of the circulation and exchange of format copies is non-commercial in nature. The Marrakesh Treaty solely uses cross-border transactions as a mean to improve access of beneficiary persons to accessible format copies and not to promote, govern or facilitate trade. On the other hand, the Marrakesh Treaty’s non-commercial character results from the fact that it does generally not stipulate trade for profit.

Indeed, the Marrakesh Treaty provides that trade in format copies covers only authorised entities, which operate on a non-profit basis and provide their service to beneficiary persons alone. According to AG Wahl, the non-profit basis of trade in format copies, is, however, irrelevant for the application of the CCP. To that extent, the AG proposed a very broad definition of commercial aspects of intellectual property rights (IPR), which Article 207 (1) TFEU expressly includes within the scope of the CCP. In his view, the CCP does not exclude from its ambit transactions or activities of a non-commercial nature as the mere exchange of goods and services implies that they are being traded. Instead, Art. 207 (1) TFEU excludes non-commercial aspects of IPR, i.e. issue areas that are not strictly or directly concerned with trade in their entirety, such as moral rights.

The Court, however, rejected the claim that commercial aspects of IPR carve out only those rules relating to moral rights. Such a broad interpretation would, in the eyes of the Court, “lead to an excessive extension of the field covered by the common commercial policy by bringing within that policy rules that have no specific link with international trade.” (para 85) Consequently, the ECJ concluded that the Marrakesh Treaty falls outside the ambit of the CCP.

Implied exclusivity and the “ERTA doctrine”

Subsequently, the Court analysed whether exclusivity can nevertheless be implied via the well-known “ERTA doctrine” (referring to the Court’s ERTA judgment), which is codified in Article 3 (2) TFEU. According to this doctrine, EU obtains exclusive treaty-making powers where the conclusion of an international agreement “may affect common rules or alter their scope”.  In its ERTA line of case law, the Court has developed a two-level test for establishing external Member State pre-emption: First, it conducts a “comprehensive and detailed analysis” to determine whether the provisions of the envisaged agreement are largely covered by common EU rules (Opinion 2/91). Second, it determines whether the conclusion of the international agreement affects the “uniform and consistent application” of these common EU rules “and the proper functioning of the system which they establish.” (Opinion 1/13, discussed here).

There was little disagreement between the parties that the Marrakesh Agreement had to be implemented within the framework of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society.  The Court, however, pointed out that “it is clear (..) that the EU legislature brought about only a partial harmonisation of copyright and related rights, given that the directive is not intended to remove or to prevent differences between national laws which do not adversely affect the functioning of the internal market.” (para 115) Indeed, Directive 2001/29 provides, within its harmonized legal framework, for considerable Member State discretion as regards the implementation of exceptions and limitations to distribution for the benefit of people with disabilities. Does such a residual Member State competence mean that the Marrakesh Treaty is not largely covered by common EU rules, and therefore prevent implied exclusivity?

The Court answered this question in the negative. Directive 2001/29 subjects the Member States’ remaining competence to a number of conditions. The Member States’ discretion can therefore only be exercised within the limits enjoined by EU law, so that the Member States “are not free to determine, in an un-harmonised manner, the overall boundaries of the exception or limitation for persons with a disability.” (para 122) Moreover, the Marrakesh Treaty – unlike Directive 2001/29 – imposes an obligation on the contracting parties to provide for an exception or limitation. The Member States are therefore mandated to comply with the restraints imposed by EU law. As a result, the Court concludes that independent external Member State action would affect common EU rules. The EU is therefore exclusively competent to conclude the Marrakesh Treaty.

Opinion 3/15 and EU treaty-making: A short analysis

As stated in the introduction, the Court’s finding of (implied) exclusivity does not come as a surprise to many observers. Neither does the broad interpretation of the “largely covered” part of the ERTA-test. After all, the Court already confirmed in Opinion 1/03 and, more recently, in Green Network, that considerable Member State discretion in the implementation of EU legislation does not rule out exclusivity. Nevertheless, as was pointed out by AG Wahl, the case law “begs the question: when is an area sufficiently covered by EU rules to exclude Member State competences to act externally?” (para 130 of the opinion) By inference, to what extent does the EU have to exercise its internal competence to trigger the “ERTA effect”?

Green Network and Opinion 3/15 suggest that the Court will place much greater emphasis on the effects of international agreements on common EU rules, rather than on the extent of their material overlap. Even if the EU law in place specifies residual Member State powers, and is therefore, arguably, not largely harmonised, (adverse) affects on the EU’s internal legal framework suffice to trigger implied exclusivity within the meaning of Art. 3 (2) TFEU. However, if the Member States may be pre-empted where an agreement is only partially covered by EU internal legislation, may they be also pre-empted where the EU cannot exercise its internal competence at all, provided always that the envisaged agreement clearly affects the EU law in force? The Court is expected to answer this question in its pending Opinion 2/15 on the conclusion of the EU-Singapore Free Trade Agreement (discussed here). Here, among other things, the Court is asked to determine whether the “ERTA effect” may exceptionally be triggered by EU primary law provisions.

The Court’s clarification of the scope of Art. 207 (1) TFEU, and in particular, “commercial aspects of IPR”, might also have some impact on future EU treaty-making. Opinion 3/15 shows that the mere exchange of goods or services cross-border is not enough to equate a measure with international trade for commercial purposes. Instead, a link with trade implies that the transaction or activity aims at fulfilling a commercial objective. By inference, using trade as a mean to fulfil non-commercial objectives is not enough to bring a measure within the scope of the CCP. While the Court did not entirely exclude that “commerce” may, on a case-by-case basis, include trade on a non-profit basis, it contrasted AG Wahl’s suggestion that Art. 207 TFEU generally encompasses transaction or activities of a non-commercial nature. In view of Opinion 2/15, which also raises this issue, it may be noted that the Court did not dispute the AG’s claim that moral rights fall outside the scope of the CCP.

When returning to the Marrakesh Treaty, Opinion 3/15 leaves another pressing question unanswered: What is the correct legal basis for the agreement’s conclusion? The Court only clarifies that the Council Decision on the signature of the Marrakesh Treaty was wrongfully based on Art. 207 TFEU, but does not further elaborate on the correct choice of legal basis. It is true that the Commission’s preliminary question is confined to the exclusive nature of the agreement. The choice of legal basis, nevertheless, qualifies the modus operandi of (exclusive) EU treaty-making. In particular, the Court refrains from discussing AG Wahl’s reference to Art.  19 (1) TFEU, and, more broadly, the effects of the non-discrimination principle on EU external action. Whilst clarifying the EU’s capacity to conclude the agreement alone, the choice of legal basis – and therefore the choice of procedure – is left to the discretion of the EU institutions. Throughout the proceedings, the Commission continued to assert that the Marrakesh Treaty should be based on Art. 114 TFEU instead of Art. 19 TFEU. Conversely, the majority of the intervening Member States sided with the AG. As the use of Art. 19 (1) TFEU would trigger unanimous Council voting, and therefore Member State veto powers in the Council, institutional debate over the conclusion of the Marrakesh Treaty might continue.

Barnard & Peers: chapter 24

Photo credit: 1709 Blog

When all the people in a district are victims of race discrimination: CJEU ruling in CHEZ v Nikolova

Simon Cox, lawyer at the Open Society Justice Initiative* 

Last week’s CJEU judgment in C-83/14 CHEZ v Nikolova shows the important role of the CJEU to advance the struggle of Roma communities against systematic discrimination by businesses and Governments. Moreover, the Grand Chamber ruling on equal treatment establishes a powerful tool for districts marginalized by powerful actors.

The case is a great example of how the CJEU can empower lower national courts. The Bulgarian Anti-Discrimination Commission had repeatedly condemned as discriminatory the practice of electricity company CHEZ (aka CEZ) of placing meters out of reach of consumers only in Roma districts. But CHEZ – a powerful company in Bulgaria and Czech Republic - had persuaded the Supreme Court to reverse these rulings. To go over the head of the Supreme Court, the Anti-Discrimination Commission referred questions to the CJEU in Belov. But the CJEU ruled the Commission was not a court and rejected the reference as inadmissible. So the Sofia Administrative Court used the Nikolova case – an appeal by CHEZ already before it – to refer similar questions. This led to CHEZ judgment, in which the CJEU – though charged only with interpreting the law – helps the national court with a clear evidential and factual path to draft a judgment to survive further appeal.

Ms Nikolova is not Roma. Two arguments were made against her because of this. First, that a practice affecting a district could only be indirectly discriminatory on grounds of ethnic origin if everyone in the district had that ethnic origin. Second, that Ms Nikolova could not complain of discrimination. CHEZ accepted that the idea of ‘discrimination by association’ could extend the category of persons beyond those of Roma origin, but denied Ms Nikolova was sufficiently ‘associated’ with her Roma neighbours.

The Court rejected these arguments, ruling that the purpose of the Directive is to end discrimination on grounds of racial or ethnic origin, not only to protect individual members of groups who are targeted by discrimination (para 56). Accepting Ms Nikolova’s arguments, the CJEU repeated the passage from paragraph 50 of Coleman affirming that there is discrimination against any person who, on account of those grounds, suffers less favourable treatment or a particular disadvantage – regardless of the race or ethnic origin of that person. So, if a measure against a district is based on grounds of the Roma origin of the district’s majority, then the minority in that district are also victims of that discriminatory measure.

Through this approach, the CJEU affirms that the principle of equal treatment empowers every affected individual – and the courts - to end discrimination by all available means, urgently and effectively. Simplifying the law strengthens the ability of oppressed communities to combat discrimination. Challenges will surely continue to be made predominantly by people with the race or ethnicity on which the discrimination is based. But the court defeats CHEZ’s attempt to require that applicants ‘prove’ their own ethnicity and limits the enquiry to whether there is discrimination and if so whether this discrimination affects the claimant.

The Court ruled that CHEZ’s practice is direct discrimination, if the ethnicity of the majority is the reason for the practice, for example, if CHEZ selected the districts because of their Roma population (para 76).

The court made a fundamentally important ruling on indirect discrimination: this requires any measure disadvantaging a Roma majority district which is not applied to non-Roma majority districts to be objectively justified. CHEZ wanted a narrow interpretation of the comparator district, arguing that Ms Nikolova’s district could only be compared to districts with similar levels of interference with electricity meters. The Court rejected this, ruling that the appropriate comparators are other urban districts provided with electricity by CHEZ (para 90).

These rulings on ‘district discrimination’ are very powerful tools. Politically weak communities may be treated badly by government or business in areas like transport, power, schooling and other amenities. Where this differential treatment follows differences in ethnic make-up of districts, then groups or individuals in the district can use the ruling to bring discrimination claims. Courts can order disclosure of documents, to see if race was a factor in decision-making, as the CJEU affirmed at paragraph 78. Where it was not a factor, the CJEU ruling on comparators means authorities must show that the objective differences between the districts justify the differential treatment. They may struggle to justify denial of transport provision or electricity connection, or extortionate insurance or service charges.

The final important piece of the judgment is justification. The Court ruled that, even if race was no factor in CHEZ’s decisions, the practice was seen by others as effectively labelling a Roma community as electricity thieves, regardless of their payment history and behavior. In the context of anti-Roma stereotypes, the measure was seriously harmful. Agreeing with Ms Nikolova, the Court ruled that such a practice is incapable of justification. The community has a right under EU law to enjoy access to electricity “in conditions which are not of an offensive or stigmatising nature and which enable them to monitor their electricity consumption regularly”: para 128.

What happened to the notion of ‘discrimination by association’? The CJEU accepted Ms Nikolova’s argument that this is not part of EU law. It was the label attached by practitioners and academics to the Coleman judgment, but not one the Court had adopted. Like paragraph 50 of Coleman, which the court cites, the Nikolova judgment makes no mention of ‘by association’.  Dee Masters and Siȃn McKinley have argued that this approach makes indirect discrimination unworkable in certain situations. A coach reservation fee bears more heavily on people whose disability gives rise to a need to be accompanied. The concept of ‘association’ is needed, they argue, to limit the class of potential claimants to persons needed to accompany the disabled person. But this scenario is different from Nikolova, where the measure applied only to users in the majority-Roma districts, thereby putting all those users at a disadvantage when compared with users in a different district. In the coach scenario, the charging practice applies to all coach passengers. The differential disadvantage arises from the disability of the passenger, not their membership of the larger affected group. The passenger with a disability can complain about the negative impact of the fee for their seat and that for the companion. Indeed, the companion may also argue that the principle of equal treatment has been wronged as regards them. But a person who has neither a relevant disability nor is a companion of such a person is not affected by a differential impact on grounds of anyone’s disability. Ms Nikolova was – she had a disadvantage compared to users in non-Roma districts.

CHEZ has responded to the judgment by pointing to recent deaths by electrocution in other parts of Bulgaria of people attempting to make irregular connections: but it has not made meters inaccessible in these districts. EVN, a different Bulgarian electricity provider, contradicted CHEZ’s concerns about electricity theft. In the majority-Roma district in Stoliponovo – where EVN put the meters at a normal level some years ago - 95% of charges are paid. According to EVN, the real problem with electricity theft in Bulgaria is professionals and rich people running hotels, pubs and ski resorts.

The case now returns to the Sofia Administrative Court, where Ms Nikolova will seek an order that CHEZ restore the meters to their normal height for all users in her district.

*Simon Cox is a lawyer at the Open Society Justice Initiative and represented Ms Nikolova before the CJEU. The Open Society Justice Initiative works to make law a more effective tool against racial discrimination.

Barnard & Peers: chapter 20 

Photo: Bjorn Steinz, Open Society Foundation

The CJEU rules on obesity and discrimination law

 

Katharina O Cathaoir

In its judgment today in Kaltoft, the European Court of Justice has confirmed that obesity is neither a protected ground of discrimination under EU employment law nor a disability per se. However, in certain circumstances the EU’s Directive banning discrimination in employment on grounds of disability could apply. (Note that EU law does not ban disability discrimination outside the workplace, so today’s judgment will only be relevant to employment disputes.)

Obesity as a protected ground

The case concerned a man who alleged that he lost his job due to his obesity (for more details of the facts, and a discussion of the opinion of the Advocate General, see here). The Court agreed with the Advocate-General that obesity is not a protected ground under EU employment law. There is no mention of obesity in the TFEU or TEU. Neither is there a general prohibition of discrimination. The protected grounds of religion or belief, disability, age or sexual orientation are exhaustive and it is not for the Court to extend these by analogy (there are also EU rules on sex, race and nationality discrimination). However, Member States may provide for increased protection under national law.

Obesity as a disability

The Court adopted a functionality test whereby obesity can only amount to a disability when accompanied by an impairment of the individual’s ability to work on an equal basis to others. Individuals do not have to be incapable of fulfilling their employment tasks, but their ability to do so on the same basis as others must be impaired. The Court suggested that individuals with obesity and decreased mobility or resulting diseases that hinder work ability or cause discomfort that does so, may have a disability under EU employment law. Thus, it is the effect of obesity, not obesity in itself, which is of importance in deciding whether an individual has a disability.

The Court avoided the AG’s suggestion that individuals at the upper most level of obesity (BMI 40+) could be assumed to have functionality issues and thereby, a disability. The Court instead made no mention of BMI as a measure of disability and concentrated on the effect of obesity, not the degree to which an individual is obese.

It will be for the Danish court, which referred these questions to the CJEU, to decide whether Mr. Kaltoft’s obesity entailed a limitation that affected his ability to do his work on an equal basis to others.

Implications

Although we are may be flooded with inaccurate headlines, the position of individuals with obesity under EU law seems to remain unchanged. Employers are likely to breathe a sigh of relief that a BMI test has been avoided. Indeed, this could have led to an appearance based test whereby employers felt pushed to keep an eye on their employees’ size. How and should an employer have access to this kind of personal information?

The case has brought obesity to the fore. Given the level of obesity in Europe, employers may begin to rethink their work practices. The employer has a role to play in his or her employee’s health. For example, employers may reconsider the food they serve in their canteens or the extent to which they make physical exercise accessible to their employees, if it will have ramifications for their legal obligations under discrimination law.

 

Barnard & Peers: chapter 20

 

Is obesity a disability?

Katharina Ó Cathaoir, PhD Fellow, University of Copenhagen

Is obesity a disability? Advocate General Jääskinen addressed this loaded question yesterday 17 July 2014, in his anticipated opinion in Kaltoft v. Municipality of Billund. The case has garnered media attention with practitioners and journalists concerned by the implications for employers and health. The AG’s opinion is non-binding. The Court will issue its own judgment in the next few months, which will be binding on EU member states. However, in general, the Court tends to follow the AG’s opinion, although it is free to depart therefrom.

What is obesity?

An adult is classified as having obesity if he or she has a body-mass index (BMI) of over 30 (mass kg/ height m2). In most European states, the rate of obesity has doubled in the last twenty years. On average at least 17% of the adult European population is obese. As a result, the public, and state and interstate bodies increasingly look for solutions to the obesity “epidemic”.  Generally, obesity is linked to lack of physical activity and the consumption of too many calories. However, environmental factors, such as walkability, ability to afford and access healthful food, and opportunities to exercise may contribute. There is evidence of a link between low socio-economic status and obesity. Long term weight loss, although possible, is not maintained by everyone.

Facts of the case

Kaltoft worked as a child minder for 15 years with the Municipality of Billund. For the entirety of this time Kaltoft was obese, weighing no less than 160kg. During a period of one year he was provided with financial assistance by the Municipality to attend fitness and physical training sessions. He also unsuccessfully pursued bariatric surgery. Contrary to what has been reported, it has not been established that Kaltoft was dismissed due to his obesity. This will be a matter for the Danish court to decide following the preliminary ruling of the CJEU. Furthermore, Kaltoft, in a BBC interview, denied that he was unable to tie the children’s shoelaces as had been reported. Instead, both parties appear to maintain that Kaltoft was fully capable of fulfilling his position.

Mr Kaltoft was not formally given reasons for his dismissal although the Municipality contends it was due to a decline in the number of children making use of the service. Mr Kaltoft, however, alleges that his obesity was broached at his dismissal hearing and declared a reason for the decision. As a result, Mr Kaltoft argued that he had been unlawfully discriminated against due to his obesity and sought damages. The Danish court referred four questions to the CJEU for preliminary ruling.

Question 1: Is it contrary to EU law, as expressed, for example, in Article 6 TEU concerning fundamental rights, generally or particularly for a public-sector employer to discriminate on grounds of obesity in the labour market?

The AG succinctly opined that obesity does not fall under any general prohibition of discrimination under EU labour discrimination law. Jääskinen considered that the Charter of the Fundamental Rights of the EU did not apply as Denmark was not implementing EU law as such. The sufficient degree of connection with EU law above and beyond the fact that “matters covered are closely related, or one of those matters has an indirect impact on the other” was not met. Furthermore, as Articles 10 and 19 TFEU, as well as Directive 2000/78 (the employment equality Directive, which bans discrimination in employment on grounds of disability, age, religion or sexual orientation), Council Directive 2000/43/EC of 29 June 2000 (the race equality Directive) etc., address specific, exhaustive grounds of non-discrimination. These could not be seen as establishing a general prohibition against discrimination. Thus, the AG rejected a more expansive interpretation of discrimination in EU law as argued by Kaltoft.

Having swiftly disposed of the first three questions (the second two were nullified by the first answer in the negative), the AG engaged in a detailed analysis of the concepts of disability and obesity.

Question 4: Can obesity be deemed to be a disability covered by the protection provided for in Council Directive 2000/78EC… and if so, which criteria will be decisive for the assessment as to whether a person’s obesity means specifically that that person is protected by the probation of discrimination [on] grounds of disability as laid down in that directive?

The AG excluded the possibility that obesity per se would amount to a disability under Directive 2000/78. However, obesity of a certain severity may amount to a disability, provided it fulfils the criteria laid out in case law.

It should be emphasized that there is limited support for obesity per se as a disability. In the United States, in many states, obesity must be accompanied with a physiological condition to qualify as a disability. However, the Equal Employment Opportunity Commission (EEOC) has stated that “severe obesity, which has been defined as body weight more than 100 percent over the norm, is clearly an impairment” and has succeeded on this basis in a number of federal cases. Thus, obesity must reach a higher, more extreme threshold to be a disability per se.

Classifying obesity as a disability

Disability is not defined by the Employment Equality Directive. However, the Directive must, as far as possible, be interpreted consistently with the UN Convention on the Rights of Persons with Disabilities (UNCRPD). The AG followed the definition of disability offered in previous case law:  

“A limitation which results in particular from 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.”

This limitation must be long term. The AG, as in the aforementioned case, relied heavily on the UNCRDP and acknowledged disability as an evolving concept.

Thus, the AG concluded that “mere” obesity is insufficient to amount to a disability, instead “most probably only WHO class III obesity, that is severe, extreme or morbid obesity, will create limitations, such as problems in mobility, endurance and mood”.

The AG also stated that it would be absurd if the individual’s ability to carry out his work excluded him from the Directive. Thus, the long term condition must cause limitations “in full and effective participation in professional life in general on equal terms with persons not having the condition”. This may be due to “physical and or psychological limitations”.

Interestingly, the AG also addressed the issue of the origin of the disability. Whether the person’s obesity can be traced to his own behaviour or an external factor was deemed irrelevant. The AG pointed out that many other disabilities may occur due to negligence or risk taking and avoid the moral spotlight.

The implications of disability

Under the EU Employment Equality Directive, an employer has a duty to reasonably accommodate an employee with a disability. Article 5:

“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 provide training for such a person, unless such measures would impose a disproportionate burden on the employer. When this burden is, to a sufficient extent, remedied by existing measures as an element of disability policy in the Member State, it should not be considered disproportionate.”

Thus, the duty is not absolute and the employer may show as a defence that accommodation would impose a “disproportionate burden”. Furthermore, as the AG highlighted, the employer is not required to maintain an individual who cannot “perform the essential functions of the post”. Thus, some of the panic regarding the wide reaching ramifications of the decision appears exaggerated.

Recital 20 of the Preamble suggests such accommodation could include “premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources”. However, the assessment will depend on the particular individual.

The Preamble also gives some guidance with regard to assessing whether any particular accommodation amounts to a disproportionate burden in Recital 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."

Comment

In Against Health; How Health became the new Morality, Kirkland and others condemn the use of “health” to make value judgments and moral assumptions on an individual. The approach of the AG, in concentrating on the functionality of the individual, instead of causality and responsibility, avoids this. However, some commentators fear that tackling obesity discrimination may serve to support or normalise obesity. Will large numbers of employers now be subject to costly implications? Is it insulting to deem a potentially “curable” condition a disability? With the “fight” against obesity staunchly declared, is it contrary to public health to describe obesity as a disability requiring protection from discrimination? Will this opinion medicalise obese individuals and further remove their sense of personal responsibility?

The experiences of obese persons should not be ignored. Discrimination in employment and healthcare is well documented and appears to be increasing. The AG has adopted a balanced position whereby only severe obesity could be a disability on its own. In reality, this covers only a small percentage of obese persons, especially considering the long term requirement. The majority of obese persons seek to lose weight but some, like Kaltoft, despite efforts, fail to do so. Factors such as diet and preventability play into other recognised disabilities, such as diabetes.

It is contended that stigma and discrimination should never be in the arsenal of a state’s public health policy. Indeed, it appears that shame is a major factor that inhibits persons with obesity from engaging with health care professionals and exercise. Thus, stigma is unlikely to decrease the number of obese persons. Furthermore, having a disability should not be seen as infantilising but instead encouraging full equal participation.

Conclusion

The opinion will prove too moderate for some and extreme for others. While the AG did not go so far as to declare obesity per se a disability, he did suggest extreme obesity could be a disability. Despite showing an understanding influenced by a rights based approach, labelling people with obesity of a certain severity needs further exploration. It does not seem fully clear as to why the AG in particular identified Class III obesity as the only category per se justifying recognition as a disability. Further explanation as to what limitations separate an individual with a BMI of 39 from a BMI of 40 is needed. Furthermore, employers must avoid stigmatising or insensitive identification of employees on the basis of physical characteristics, no matter how well intentioned. 

Update: the CJEU gave its judgment in this case in December 2014. See discussion here.

Barnard & Peers: chapter 20