In Kaltoft v Municipality of Billund (C-354/13) the Advocate General has given the opinion that obesity may amount to a disability for the purposes of the EU Equal Treatment Framework Directive (No.2000/78) but only if it is ‘severe’. The Advocate General thought it probable that only obesity with a body mass index (BMI) of over 40 would hinder an individual’s participation in professional life to such an extent as to amount to a disability. He also rejected the argument that there is a freestanding prohibition in EU law on discrimination on the ground of obesity per se.
K claimed that the Municipality of Billund in Denmark terminated his employment as a childminder because of his obesity and that this amounted to unlawful discrimination. K is 1.72 metres tall and weighs over 160 kilograms, giving him a BMI of 54. This would be classified as class III obesity, or ‘severe, extreme or morbid obesity’, under the World Health Organisation classification. K brought a claim before a Danish court, which made a reference to the European Court of Justice. It asked whether obesity falls within a general prohibition in EU law covering all forms of discrimination in the labour market, and whether obesity is a form of ‘disability’ under the Framework Directive.
Giving his opinion in the case, Advocate General Jääskinen rejected the argument that there is any fundamental principle of EU law that prohibits discrimination on the ground of obesity per se. Although Article 21 of the Charter of Fundamental Rights might be argued to prohibit discrimination generally, in that the list of protected characteristics that it contains is apparently non-exhaustive, it would be an impermissible extension of the scope of EU law to infer a prohibition on obesity discrimination.
As for disability, Advocate General Jääskinen opined that obesity may meet the definition of ‘disability’ in the Framework Directive but only if it is ‘severe’. The condition must have reached such a degree that it plainly hinders full participation in professional life. ‘Mere’ obesity in the sense of WHO class I obesity is insufficient to fulfil the criteria in ECJ case law. In the Advocate General’s view, ‘most probably’ only WHO class III obesity, also known as ‘severe, extreme or morbid obesity’ with a BMI over 40, will create such problems in mobility, endurance and mood as to amount to a disability.