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.
When is it racial discrimination to put a Roma community’s electricity meters out of reach? And is the right to a remedy limited to Roma residents—or can anyone affected complain?
These are some of the questions raised before a Grand Chamber of the Court of Justice of the European Union in the hearing on January 13 of Case C-83/14 Nikolova. In some mainly Roma districts in Bulgaria, the electricity company CEZ keeps the electricity meters on tall poles in the street, out of easy reach of householders. This very public practice, which effectively denies customers the ability to keep track of their usage, has been condemned for stigmatizing a whole community as thieves.
CEZ adopted these arrangements 15 years ago, supposedly in response to interference with meters. Since then, other Bulgarian electricity companies have changed to smart meters which minimize company losses while allowing users to monitor electricity consumption.
Ms. Nikolova, who is represented before the court by lawyers from the Open Society Justice Initiative, is not Roma and owns a shop in the affected Gizdova district of Dupnitsa. Unable to read her meter and fearing inflated bills, she protested against CEZ’s practice to the Bulgarian Anti-Discrimination Commission, which upheld her claim. The Commission saw evidence that CEZ had targeted Roma areas. The Administrative Court of Sofia sent the case to the European Union’s highest court for a ruling on the law.
European Union Directive 2000/43 law bars racial discrimination, whether direct or indirect, and guarantees victims the right to a remedy: all areas the Court may address. The national court has asked for guidance on whether people of Roma origin falls within the prohibition, though this appears uncontroversial.
More contentious is whether there is direct discrimination. Nikolova argues that by choosing Gizdova district because of its mainly Roma residents, CEZ practiced direct racial discrimination. She contends that neither the existence of non-Roma residents nor her own ethnicity is a bar to the claim, since the law prohibits all discrimination “based on racial or ethnic origin” regardless of the ethnicity of the victims. CEZ denies any actual racial basis for its actions.
As for indirect discrimination, the court may give guidance on how to determine the existence of disparate impact between one district and others. CEZ claims that any disparate impact on Roma people is objectively justified. Nikolova argues that CEZ’s competitor suppliers show the practice is unnecessary, while the stigmatising effects of the measure on Roma people make it unjustified.