Case Watch: Strengthening Europe’s Non-Discrimination Law

What is the reach of the European Union law prohibition on race discrimination? Advocate-General Juliane Kokott considered this important issue in her opinion on the reference to the Court of Justice of the EU (CJEU) in Belov, issued 20 September 2012. (The opinion does not bind the court, but the views of the Advocate-General can carry great weight.)

Belov lives in the Bulgarian city of Montana, in a district where most of the population is—like him—Roma. In this district—and one other “Roma” district—the electricity supplier has placed household electricity meters at a height of 7 meters (23 feet) so they can only be read by special appointment. In all other parts of Bulgaria, the meters are placed at head height. Belov made a complaint of racial discrimination to the Bulgarian Commission for Protection against Discrimination, which referred questions of law to the CJEU.

EU Directive 2000/43—the Race Equality Directive (RED)—requires member states to adopt laws barring race discrimination. The RED applies to many areas, including “access to and supply of services.” Unsurprisingly, Advocate-General Kokott considered that the location of the electricity meter is an aspect of the supply of the service of electricity and therefore within the material scope of the directive.

The opinion addresses several other issues of EU race discrimination law.

The most interesting – for me—is how she dealt with the effect of EU law on the electricity supplier. The RED, like all directives, is addressed to the member states. The Court of Justice has consistently held that directives do not have “horizontal direct effect,” that is, direct effect against non-state bodies (opinion para 79). The national court’s duty is to use the directive to interpret national legislation, to the extent that is possible. If national law cannot be interpreted to comply with the directive—and as a result the victim’s claim fails—the remedy is to claim damages from the state for the failure to transpose the directive.

Advocate-General Kokott accepted all this. So she looked beyond the RED to the EU Charter of Fundamental Rights (CFREU). Art 21(1) reads: “Any discrimination based on any ground such as... race... shall be prohibited.” The Advocate-General reasoned that this prohibition is a general principle of EU law and so, if Bulgarian law cannot be read to give effect to the RED, art 21(1) CFREU requires that national law be disapplied to ensure that the prohibition on race discrimination is available to Belov (paras 80-82).

The CJEU itself had taken a similar approach to age discrimination in its Kücükdeveci  judgment of January 19, 2010. That concerned Directive 2000/78, which prohibits employment discrimination on grounds including age. The court affirmed the rule that a directive does not itself have horizontal direct effect (para 46). But it also affirmed that the principle of non-discrimination on grounds of age is a general principle of EU law and that this means a court hearing a dispute involving that principle “as given expression in Directive 2000/78” must disapply, if need be, national law contrary to that principle (paras 50-51). The court had referred to art 21(1) CFREU (para 22).

The Belov reference provides the CJEU with the opportunity to affirm that non-discrimination on grounds of race is likewise a general principle of EU law. In EU states that have not properly transposed the RED, victims of race discrimination could use such a principle to argue for direct effect of the RED in cases concerning non-state defendants. Such a ruling might also lay the basis for race discrimination arguments in areas of EU law which are said to lie outside the RED, such as police and immigration functions.

The opinion included several other points of interest. The advocate-general convincingly reasons that the legal test under the RED for the defendant to prove that there was no discrimination (“the reverse burden of proof”) is met where the complainant’s evidence permits a finding of discrimination. It is not necessary for the complainant’s evidence to show that discrimination was probable (paras 86-94). She points out that a measure directed at a whole district can stigmatize the whole population as guilty of fraud, which may be important for testing whether any indirectly discriminatory measure is proportionate to a legitimate aim (para 118). She also looks at whether the reference was admissible at all. Under article 267 of the Treaty on the Functioning of the EU, the commission could only make a reference if it is a “court of tribunal.” She analyzes and applies the case law on this and concludes that the commission was acting as a court or tribunal when it made the reference.