Administrative law

An amendment to the AGG should include state actors when it comes to protection from discrimination.  Until now people who have been discriminated against by state actors cannot invoke the General Equal Treatment Act.

Blindness does not lead to rejection of a medical practitioner's license

Federal Administrative Court, judgment of 13.12.2012 - 3 C 26.11

The plaintiff, who has been completely blind since 2005, seeks the granting of a medical practitioner's license (license for the professional exercise of the medical profession without authorization). In 2009, she completed the written and oral part of the official examination relating to the knowledge and abilities of a doctor. In 2010, however, the competent authority - the defendant - refused to grant the medical practitioner's authorization because the plaintiff was blind.

The plaintiff brought an action against the administrative decision, claiming that the defendant had breached the fundamental right to freedom of professions. In addition, the prohibition of discrimination based on grounds of disability, was claimed to have been breached.

The Administrative Court ruled that the plaintiff was entitled to a limited license. The restriction would at least relate to those clinical pictures which the plaintiff alone could diagnose and treat. For this purpose, however, a further examination of the knowledge would be necessary, in which the plaintiff shows that, despite blindness-related limitations, she can diagnose and treat a disease in general.

The authority, on the other hand, appealed.

However, the appeal was unsuccessful. If the plaintiff were to be required to be able to perform all the medical activities, the freedom to work would be disproportionately limited, the Administrative Court stated. There were fields of activity that the person concerned could not exercise, however this does not warrant the justification of disqualifying the plaintiff from all professional activities. Finally, the plaintiff is able to exercise a wide range of curative activities.

The Federal Administrative Court went even further and pointed out that the plaintiff could claim an unlimited medical practitioner's license. A restricted permission violates the rights of the state, because it is too unclear. According to this, an unlimited permission is necessary. A supplementary knowledge test is not necessary.

© Büro zur Umsetzung von Gleichbehandlung e.V. 2011