Author:Evan Rago, Visiting PhD Researcher Assisting Living and Learning (ALL) Institute, Maynooth University and University of Modena and Reggio Emilia (Università degli studi di Modena e Reggio Emilia).
This year marks the 25th anniversary of the Charter of Fundamental Rights of the European Union, proclaimed in Nice in 2000. Many of its principles remain strikingly relevant. Among them is Article 26, dedicated to the integration of people with disabilities, and it stands for a short, clear and deceptively simple rule, yet one that conveys a powerful and influential message: “The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community”.
Over the years, this provision has been repeatedly referred to by the Court of Justice of the European Union (CJEU) as a guiding principle. One of the most recent examples is the Bervidi judgment of 11 September 2025 (Case C-38/24). The case concerned an Italian worker, the mother of a child with a severe disability, who asked her employer for working hours that were compatible with her son’s care needs or, alternatively, to be reassigned to another position.
Before examining this case, it is worth recalling that, today, a situation like this could also be addressed under the Italian Law on direct and indirect discrimination, specifically article 25, paragraph 2-bis of Legislative Decree No. 198/2006 (also known as the Equal Opportunities Code). However, at the time of the Bervidi case that provision was not applicable: it did not offer protection for workers who suffered indirect discrimination because of another person’s disability – what legal doctrine, following Coleman judgment of 17 July 2008 (case C-303/06), defines as “discrimination by association”.
Given the complexity of the issue, the Court of Cassation suspended the domestic proceedings and referred three questions to the CJEU, all essentially centred on one fundamental point: whether EU law can also protect those who care for a person with disability – even if they themselves do not have that protected characteristic – when they suffer an indirect disadvantage precisely because of that relationship?
For years, the answer seemed far from obvious. Until recently, relying on earlier case law, most notably Coleman, the prevailing academic view would likely have been negative. In fact, in this important and well-known judgment, the Court recognised for the first time the concept of “discrimination by association”, but limited it to cases of direct discrimination, i. e. when a person is treated less favourably because they are linked to someone with a protected characteristic (in this case a child with disability).
However, with Bervidi, the Court took a decisive step forward. For the first time, it clearly stated that the prohibition of indirect discrimination may also cover situations where apparently neutral rules disproportionately affect workers performing family care duties. In other words, the caregiver’s disadvantage becomes legally relevant.
This is where the issue of reasonable accommodation comes into play. Indeed, in its second preliminary question, the Court of Cassation asked the Court of Justice whether, once indirect discrimination by association has been recognised, family carers can also request the reasonable accommodation provided for in Article 5 of Directive 2000/78/CE.
Under the directive, reasonable accommodation refers to adjustments, including organisational changes, that employers must introduce to enable a person with a disability to access, participate in and progress in employment on an equal basis with others, provided that such adaptations do not impose a disproportionate burden. In Bervidi, this meant, in concrete terms, changes to the organisation of work that would allow the mother to continue working while also ensuring her son a dignified life and effective participation in the life of the community.
This is also where article 26 becomes central. Both Advocate General Rantos in his conclusions and the Court of Justice in its judgment, referred to it alongside articles 21 and 24 of the Charter. Through these references, the judgment sends a clear message: the Court no longer views disability as an individual matter, but as a condition that affects the entire environment of a person’s life. Indeed, if the autonomy and participation of persons with disabilities depend, as in many cases, on daily assistance from a family member, then it is inevitable that this relationship must also be protected.
This does not mean denying the centrality of the person with a disability but rather recognising that their rights run the risk of remaining as “dead letters” if those who support them are left without any protection. It is clear that, when the working life of the carer is made impossible by rigid organisational rules and by the failure to provide reasonable accommodations, it is not only the worker who suffers the disadvantage, but also the person they care for and, consequently, that person’s inclusion.
The importance of Articles 24 and 26 of the Charter is highlighted by the Court itself, which, in upholding the decision on the second preliminary question, states that, for the purposes of a consistent interpretation of Article 5 of Directive 2000/78/EC, it is necessary to assess those articles.
In conclusion, a quarter of a century after the Charter of Nice was proclaimed, Article 26 remains a key provision whose significance is far from merely symbolic. Alongside Directive 2000/78/EC and the 2006 UN Convention on the Rights of Persons with Disabilities, it constitutes a set of essential tools for giving concrete expression to the principle of inclusion of persons with disabilities while, following Bervidi, also taking into account the relationship and contexts that make it possible, in everyday life, to exercise the fundamental rights guaranteed to them.
Ensuring what Article 26 promises means looking not only at individuals, but also at the people who enable their autonomy, usually family members and very often women. The path to inclusion inevitably intersects with the living and working conditions of caregivers. Safeguarding them means protecting the very possibility for people with disabilities to participate fully in community life exactly as the Charter envisioned twenty-five years ago.
