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Supreme Court of Denmark

Opinion on the concept of disability as part of directions on reference of questions for a preliminary ruling was not an enforceable judgment. Request for reference for a preliminary ruling of an additional question granted. 

Case no. 283/2009 and
case no. 284/2009
 

Judgments delivered on 7 May 2010

Confederation of Danish Employers acting for Pro Display A/S in bankruptcy
vs
HK Danmark acting for A

and

DAB (Danish Nonprofit Housing Association)
vs
HK Danmark acting for B

Opinion on the concept of disability as part of directions on reference of questions for a preliminary ruling was not an enforceable judgment. Request for reference for a preliminary ruling of an additional question granted.

A and B had been dismissed on the grounds of their absence due to illness. A and B sued their employers, claiming, among other things, that their absence due to illness had been attributable to their disability, and that the dismissals were, thus, in contravention of the Danish Act on Discrimination (forskelsbehandlingsloven). The employers contested the claim that A and B were disabled within the meaning of the Act. The cases were tried in the Danish Maritime and Commercial Court in June 2009. Following the trial, the Maritime and Commercial Court held that the cases had to be deferred pending reference of two questions for a preliminary ruling to the European Court of Justice. According to the judgments of the Maritime and Commercial Court, the Court believed that A and B should be regarded as disabled within the meaning of the Act on Discrimination.

The employers appealed against the Maritime and Commercial Court's orders regarding reference for a preliminary ruling and claimed that a question on the interpretation of the concept of disability in Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation should be referred with the other questions.

A and B claimed, among other things, that the interlocutory appeals should be dismissed, as the Maritime and Commercial Court had passed an enforceable interlocutory judgment regarding whether A and B were disabled.

The Supreme Court concluded that the Maritime and Commercial Court's opinion on whether A and B were disabled within the meaning of the Act on Discrimination was part of directions and, thus, not an enforceable judgment. In addition, the Supreme Court held that the employers' question should be referred.

The Supreme Court, thus, reversed the orders of the Maritime and Commercial Court. 

 

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