In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.
The legal advisor to the Court of Justice of the European Union (CJEU) issued an opinion this week on a case in which a Czech-owned electricity company stands accused of discriminating against customers living in a predominantly Roma district of Bulgaria.
In her opinion on Nikolova v CEZ, Advocate-General Juliane Kokott examined how the EU law banning discrimination on racial or ethnic grounds affects service provision disadvantaging a whole district. In districts with large Roma populations, CEZ puts electricity meters on the top of a 7-meter pole, supposedly to stop tampering. The Bulgarian Anti-Discrimination Commission condemned this as discrimination and the case was sent to the CJEU, which has authority on matters of European Union law. The CJEU Grand Chamber heard the case in January 2015. Though not binding on the court, the Advocate-General’s opinion is influential.
Nikolova is represented by the Open Society Justice Initiative in her challenge to CEZ, the monopoly provider of electricity to Western Bulgaria. Advocate-General Kokott dealt with three main issues. First, is the case within the prohibition on ethnic discrimination? She agreed Roma are an ethnic group, referring to the landmark judgment of the European Court of Human Rights in D.H. v Czech Republic. Nikolova, the complainant, had told the CJEU she is neither Roma, nor does she live in the affected district of Gizdova: the CEZ practice affected her because she is a shop-owner there. A-G Kokott reasoned that Nikolova, while not herself Roma, should still be able to complain under the law of suffering from the effects of anti-Roma discrimination. Article 21 of the EU Charter of Fundamental Rights does not limit the protection against discrimination to people who suffer discrimination based on their ethnic origin: only some language versions of the Race Equality Directive make that distinction. She considered the notion of discrimination includes “collateral damage,” such as residents and business people affected by a ‘wholesale and collective’ measure.
Second, is there is a difference of treatment, indirectly based on ethnic origin? Moving quickly over the question of direct discrimination, A-G Kokott examined whether the practice had greater impact on Roma people than comparable persons. Nikolova argued the practice is only used against predominantly Roma districts. CEZ could not rebut this claim. Instead, CEZ argued that other districts could not be properly compared with Gizdova because the others had much lower rates of meter tampering. This was crucial for CEZ, because it would exempt them from justifying the fundamentally different treatment of the people of Gizdova. A-G Kokott rejects this argument: in both the Gizdova district and comparable districts, customers had the same interests in both not being stigmatized and in being able to inspect their meters. CEZ could only bring tampering into play as a justification for its differential treatment, not as a way to avoid justifying the extent of that difference.
Third, could the treatment be justified? The Advocate-General considers CEZ needed to prove, from its own internal documents, that it had adopted the practice originally because of tampering, and not because of the ethnic group of the residents. CEZ must show tampering still warrants special measures. Because the measure is stigmatizing, mere economic considerations are secondary. CEZ can be required to use less cost-efficient metering.
If the court adopts this latter approach in its conclusions, it will place a heavy burden on CEZ. This company, which is majority-owned by the Czech Government, claimed to the CJEU that documents explaining the practice had been lost or destroyed. As importantly, CEZ’s claim to have no other options conflicts with approach of the two companies that supply electricity elsewhere in Bulgaria. A detailed analysis published last month by a Bulgarian NGO, Equal Opportunities, shows these competitors have much better strategies to address tampering and bad relationships with Roma customers. AVN—majority-owned by Austrian local government—consulted Roma communities and replaced out-of-reach meters with smart meters. Subsequently, AVN significantly increased payment rates and regards the change as financially successful. CEZ will need to explain to the Sofia administrative court why it cannot adopt AVN’s solution.
The opinion is at its most radical on an issue which the court is unlikely to address specifically. The prohibition on discrimination is not limited to grounds of racial or ethnic origin. Taking as an example insurance companies charging higher premiums, she considers the EU rights charter requires a service provider to justify putting districts at a disadvantage “if the population in those districts belongs predominantly to a certain ethnic group, a certain income group or a certain religious community.” Unless justified on objective grounds, this treatment would be indirect discrimination and prohibited by EU law.