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September 24 2014
According to the advocate general's opinion of July 17 2014 in the European Court of Justice's (ECJ) so-called 'obesity case', severe obesity may constitute a disability under the Danish Anti-discrimination Act.
In Summer 2013 the Kolding City Court referred four questions to the ECJ for a preliminary ruling. The questions included:
The referral arose from the dismissal in November 2010 of a severely obese childminder. During his employment with the municipality, the childminder's weight was never below 160 kilograms and it was agreed that, with a Body Mass Index of at least 40, he should be classified as severely, extremely or morbidly obese based on World Health Organisation (WHO) terminology. The childminder argued that his dismissal constituted discrimination, although it was disputed whether his condition had played a role in his dismissal.
The advocate general answered the first question by referring to the fact that obesity is not mentioned as a prohibited ground of discrimination in any EU provision, and subsequently, his considerations related to whether the prohibition against discrimination as stipulated in Article 21 of the Charter of Fundamental Rights of the European Union protects an employee against discrimination due to obesity.
The advocate general denied that any general protection against discrimination due to obesity could be inferred from the charter, as the ECJ has previously confirmed that the EU Treaty prevents the charter from "in any way extending the powers of the Union as stipulated in the treaties". Consequently, the charter is binding on member states only when they are "implementing" EU law and does not constitute independent protection against discrimination.
With respect to the second question, the advocate general initially stated that the concept of disability is an EU concept whose limitations have been established by the ECJ. Against this background, the concept must be interpreted to the effect that:
"it comprises limitations due to e.g. (i) long-term, (ii) physical, mental or psychological impairments, (iii) which in interaction with various barriers (iv) may hinder (v) the affected individual's full and effective participation in society (v) on an equal basis with other employees."
In the advocate general's opinion, severe obesity may constitute a disability under the directive, and the Kolding City Court must accordingly take the following into account when making its decision:
The advocate general's opinion opens up the possibility that severe obesity may be covered by the concept of disability under the Anti-discrimination Act. It remains to be seen whether the ECJ will reach the same conclusion.
For further information on this topic please contact Tina Reissmann at Plesner by telephone (+45 33 12 11 33), fax (+45 33 12 00 14) or email (firstname.lastname@example.org). The Plesner website can be accessed at www.plesner.com.
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