Summary:

I.

The applicant received treatment from a physiotherapist whose premises could be accessed via publicly accessible stairs made of steel grating. Alternatively, level access was available via the premises of an orthopaedic clinic. Both ways were signposted. The applicant had passed through the clinic with her guide dog on numerous occasions. Twice, the clinic’s doctors had denied her access to the premises with her guide dog and asked her to use the stairs instead. The applicant had brought a claim before the Regional Court requesting that it order the orthopaedic clinic to tolerate her accessing and passing through their premises with her guide dog. She had submitted that her dog was unable to use the stairs, as it had previously been injured when its claws got stuck in the steel grating and now feared using the stairs. The claim had been unsuccessful and the Higher Regional Court had rejected the subsequent appeal on points of fact and law.

II.

The Federal Constitutional Court granted the constitutional complaint finding it to be manifestly well-founded and remanded the matter to the Higher Regional Court for a new decision. The ban on passing through the clinic is disproportionate and the disadvantaging caused by it is unconstitutional. The challenged decisions violate the applicant’s right set out in the Second Sentence of Article 3.3 of the Basic Law.

Pursuant to the Second Sentence of Article 3.3 of the Basic Law, no person shall be disfavoured because of disability; disadvantaging persons with disabilities is only permissible for compelling reasons. In particular, measures that impair the position of persons because of their disability constitute such impermissible disadvantaging. This also includes disadvantaging where the exclusion of persons with disabilities from opportunities for participation and personal development is not intended and instead is an incidental consequence of a measure.

The prohibition of disadvantaging is a fundamental right and an objective decision on values at the same time. In conjunction with certain freedoms, it gives rise to the state’s particular responsibility for persons with disabilities. In accordance with the intent of the constitutional legislator, the prohibition of disadvantaging persons with disabilities is part of the objective order of constitutional values and thus influences the interpretation of private law. The right to personal mobility set out in Article 20 of the UN Convention on the Rights of Persons with Disabilities (hereinafter, the “Convention”) must also be taken into account when interpreting private law provisions. According to the Convention, states have to introduce effective measures to ensure largely independent personal mobility of persons with disabilities, for example by facilitating access to service animals.

It can remain undecided whether the applicant is placed at a direct disadvantage, which would be supported by the fact that a close tie exists between a blind person and their guide dog. In any case, the applicant was placed at an indirect disadvantage.

An indirect disadvantage exists, where seemingly neutral rules could place a person at a particular disadvantage in comparison with other persons because of their disability and where this is not justified by objective reasons. The seemingly neutral ban on taking dogs into the clinic places the applicant at a particular disadvantage because of her visual impairment. It prevents her from independently passing through the premises, an act that poses no problem to sighted persons. The Higher Regional Court assumes that the applicant herself is not actually prevented from passing through the clinic but only perceives to be prevented from it by the ban on taking her guide dog with her. It fails to consider the paradigm shift brought along by the Second Sentence of Article 3.3 of the Basic Law. The Higher Regional Court does not compare the applicant with a person without disabilities, rather it expects her to use assistance and thus make herself reliant on others. By doing so, it ignores that, without her guide dog, the applicant would have to entrust herself to a stranger and, against her wishes, would have to be touched and guided or pushed in a wheelchair. This is equivalent to being patronised, as it requires her to surrender control over her personal space.

Taking into account the Second Sentence of Article 3.3 of the Basic Law, the disadvantaging is not objectively justified by a legitimate aim. The Higher Regional Court considers the disadvantaging to be based on objective reasons, as the doctors asserted “reasons of hygiene”. However, it does not distinguish between the general ban on taking animals into the clinic and the application of the ban to the applicant and her guide dog. It also ignores the fact that the applicant only had to pass through a waiting area which people may enter using a wheelchair or wearing clothing or shoes usually worn outside. Thus, a dog occasionally passing through the waiting area is unlikely to adversely affect hygiene to a significant extent. Given that the applicant is reliant on her guide dog and that other patients can easily perceive this, it cannot be understood how her actions would cause other patients to suspect a lack of hygiene.

The ban on crossing the clinic already is not necessary to prevent a negligible risk of infection. When reviewing the ban’s appropriateness, the doctors’ freedom to practice an occupation and the general freedom of action must be weighed against the applicant’s right not to be placed at a disadvantage because of her disability protected by the Second Sentence of Article 3.3 of the Basic Law. The prohibition of disadvantaging rules out the exclusion of persons with disabilities from activities that pose no problem to persons without disabilities if there are no compelling reasons for such an exclusion. This interpretation is based on the aim of protecting the individual autonomy and independence of persons with disabilities, as well as ensuring their full and effective participation and inclusion in society, which is expressed in Articles 1, 3.a and 3.c of the Convention. Requiring the applicant to leave her guide dog outside the clinic and make herself dependent on strangers is incompatible with this aim and the underlying notion of self-determined human beings. Therefore, the applicant’s right set out in the Second Sentence of Article 3.3 of the Basic Law is of greater weight than the doctors’ interests.