The Directive 2000/43/EC and the possibility of indirect discrimination by association: an analysis of the judgment CHEZ Razpredelenie Bulgaria (Case C-83/14)

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by Mariana Schafhauser Boçon, masters' student at University of Minho

The Judgment of the Court of Justice of the European Union (Grand Chamber) in Case C-83/14, delivered on 16 July 2015, concerned a request for a preliminary ruling under Article 267 TFEU from the Administrativen sad Sofia-grad, about the interpretation of Article 1 and Article 2(1) and (2)(a) and (b) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and of Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

The dispute in the main proceedings relates to the fact that, between 1999 and 2000, the CHEZ Razpredelenie Bulgaria AD – CHEZ RB, a Bulgarian electricity distribution company, installed the electricity meters of all the consumers of the ‘Gizdova mahala’ district, of the town of Dupnitsa (Bulgaria), inhabited mainly by persons of Roman origin, on the concrete pylons forming part of the overhead electricity supply network at a height of between six and seven metres, whereas in the other districts the meters installed by CHEZ RB are placed at a height of 1.70 metres, usually in the consumer’s property, on the façade or on the wall around the property.

In December 2008, Anelia Georgieva Nikolova, owner of a grocery store in the ‘Gizdova mahala’ district, lodged an application with the Komisia za zashtita ot dikriminatsia – KZD (Bulgarian Commission for Protection against Discrimination) alleging that she was suffering direct discrimination on the grounds of nationality due to the practice at issue of CHEZ RB.

Firstly, KZD ruled that the practice at issue constituted an indirect discrimination prohibited on grounds of nationality. However, after that decision was annulled by a judgment of the Varhoven administrativen sad (Supreme Administrative Court), KZD decided that Anelia Nikolova had suffered a discrimination because of her “personal situation” and ordered CHEZ RB to bring discrimination against her to an end and to refrain from such discriminatory behaviour in the future.

Against that decision, CHEZ RB brought an appeal before the Administrativen sad Sofia-grad (Administrative Court, Sofia), which decided to stay proceedings and to refer ten questions to the Court of Justice of the European Union (ECJ) for a preliminary ruling. These questions were also examined by Advocate General Juliane Kokott in her Opinion.

As a starting point for its questions, the referring court considers that the case must be assessed in the light of the characteristic of “ethnic origin” Roma common to the majority of the people living in the ‘Gizdova mahala’ district. However, the referring court had doubts as to whether it was a case of direct discrimination or indirect discrimination, as envisaged for in Article 2 (2) (a) and (b) of Directive 2000/43/EC respectively. Furthermore, if the practice at issue were to fall within the concept of indirect discrimination, the referring court asked whether it could be objectively justified, appropriate and necessary within the meaning of Article 2 (2) (b) of the Directive.

Of the ten questions referred to the Court, in the first, the referring court wants to examine what the Advocate General Kokott called “the personal scope of Directive 2000/43/EC”[i]. In essence, the referring court intends to know what people are covered by the concept of ‘discrimination on the grounds of ethnic origin’ for the purpose of Directive 2000/43/EC. The prevailing view of the ECJ that the scope of Directive 2000/43/EC should not be defined in restrictive terms contributes to the interpretation that the Directive applies equally to all persons who, although not belonging to the racial or ethnic group discriminated, suffer less favorable treatment or disadvantage on one of these grounds.

In this regard, the Advocate General questions, mentioning the decision in Coleman judgment (C-303/06)[ii], whether Anelia Nikolova can be considered to be discriminated by association, when considering a measure which, by virtue of its general and collective nature, affects not only persons who have one of the characteristics referred to in Article 21 of the Charter and in the anti-discrimination directives, but also other people as a “collateral damage”.

The ECJ in its judgment, without mentioning the term “discrimination by association” used by Advocate General Kokott, ruled on the referring court’s first question “that the concept of ‘discrimination on the grounds of ethnic origin’, for the purpose of Directive 2000/43 and, in particular, of Articles 1 and 2(1) thereof, must be interpreted as being intended to apply in circumstances such as those at issue before the referring court — in which, in an urban district mainly lived in by inhabitants of Roma origin, all the electricity meters are placed on pylons forming part of the overhead electricity supply network at a height of between six and seven metres, whereas such meters are placed at a height of less than two metres in the other districts — irrespective of whether that collective measure affects persons who have a certain ethnic origin or those who, without possessing that origin, suffer, together with the former, the less favourable treatment or particular disadvantage resulting from that measure”[iii].

Considering the possibility of being a case of discrimination by association, the ECJ goes on to consider the other questions in which the referring court asks whether it is a case of direct or indirect discrimination.

About the direct discrimination, the ECJ understood that for this to exist it is sufficient that ethnic origin has determined the decision to institute the practice at issue. In so far as it was not contested by CHEZ RB that the practice at issue was established only in the neighborhoods primarily inhabited by citizens of Roma origin, the ECJ ruled in the judgment “that Article 2(2)(a) of Directive 2000/43 must be interpreted as meaning that a measure such as the practice at issue constitutes direct discrimination within the meaning of that provision if that measure proves to have been introduced and/or maintained for reasons relating to the ethnic origin common to most of the inhabitants of the district concerned [.]”[iv]

Regarding the possibility of the practice being a case of indirect discrimination, the ECJ points out that indirect discrimination may result from a measure that, despite its neutral formulation, because based on reference to other criteria not directly related to the protected characteristic, generates the disadvantage, in particular, of people with this characteristic. The ECJ thus provides that, supposing the referring court concludes that the practice at issue is not a case of direct discrimination based on ethnic origin, the facts, as it has been established, suggest that the practice has the characteristics to constitute indirect discrimination within the meaning of Article 2 (2) (b) of Directive 2000/43/EC, unless it can be objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The ECJ argues that the tendency is to consider that the practice at issue could not be justified within the meaning of Article 2 (2) (b) of Directive 2000/43, since the disadvantages caused by the practice appear disproportionate to the objectives pursued. However, it emphasizes that it is for the referring court, in the context of a preliminary ruling procedure, to carry out the final assessments which are necessary in that regard.

The Advocate General, who considers that the case in question is indeed an indirect discrimination, questions whether the concepts of “indirect discrimination” and “discrimination by association” are legally compatible and whether the less favorable treatment given to Roma people in the ‘Gizdova mahala’ district can be considered as a sufficient basis for finding a case of discrimination by association of Anelia Georgieva Nikolova when the treatment is only indirectly related to the ethnic origin of the Roma group. According to the Advocate General, no specific structural features were claimed in the case of indirect discrimination under Article 2 (2) (b) of Directive 2000/43/EC which could preclude the possibility of a person being discriminated by association. So, in her view, it is possible to recognize the topic of discrimination by association related to indirect discrimination in the same way as for direct discrimination.

And that is what the ECJ has understood in the judgment, although it did not use the term “discrimination by association” in its decision, all the reasoning developed by the Court allows such an understanding, in particular when it answers the first question of the referring court.

Therefore, the judgment in Case C-83/14, as well as being an important case decided by the ECJ about the citizens of the Roma ethnic minority, is a milestone in the Court’s case-law concerning the interpretation of the principle of equality in the European Union Law, since it had already recognized direct discrimination by association in the Coleman judgment, in the present judgment The Court innovates by presenting the view that it is also possible to have indirect discrimination by association.

The judgment, in this way, brought important answers to the interpretation of European Union Law and, at the same time, raised a number of questions about the breadth of this interpretation in the resolution of complex cases. After that judgment many doubts have arisen by claiming the “dangerous magnitude” of such an understanding when it is considered that from an apparently neutral practice, but that ends up putting a person endowed with one of the characteristics listed in article 21 of the Charter or in anti-discrimination directives in a situation of disadvantage compared with other persons, may an individual who has no link with the person object of the practice at issue invoke legal protection for suffering a “simple” collateral damage.

In the Opinion of the Advocate General Juliane Kokott, however, for those who suffer discrimination by association, it matters little if it is involved direct or indirect discrimination, since in both cases they are “collateral damage” also. The difference would be in the possibility of justifying an unequal treatment in one case and another, because the objectives that are capable of being invoked to justify an indirect discrimination are broader and more diversified than those that justify direct discrimination.

[i] See Opinion of Advocate General Kokott delivered the 12th March 2015, Case C‑83/14, paragraph 42.

[ii] See Opinion of Advocate General Kokott delivered the 12th March 2015, Case C‑83/14, paragraph 56. EU:C:2008:415

[iii] See Judgment of the Court, Process number C-83/14, delivered 16th July 2015, paragraph 60.

[iv] See Judgment of the Court, Process number C-83/14, delivered 16th July 2015, paragraph 91.

 

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