Simon Cox
In Luxembourg yesterday, the
Court of Justice Grand Chamber heard arguments that any person who suffers
adverse consequences of a racially discriminatory decision is entitled to a
remedy under EU law. In a case of anti-Roma discrimination brought by a
non-Roma woman, the Court was asked to clarify its Coleman ruling, concerning who has the capacity to invoke EU
discrimination law. Detailed questions from the Court showed a close interest
in the legal and practical issues.
Case
C-83/14 CEZ is a preliminary reference of ten questions under the European
Union Directive 2000/43 on race discrimination. The case comes from the
Sofia Administrative Court, in an appeal by CEZ, one of Bulgaria’s three
electricity companies, from a decision of the Bulgarian National Anti-Discrimination
Commission. This commission had a complaint from Ms Nikolova that CEZ
unlawfully discriminated against her by putting the meter for the legal supply
of electricity to her grocery shop on the top of a 7 metre high pole. CEZ had
not singled Ms Nikolova out for this treatment. They had done this to every
meter in the district of Gizdova, but nowhere else in her town of Dupnitsa.
Unable regularly to inspect her meter, Ms Nikolova considered CEZ had inflated
her electricity bill. Since the Gizdova is widely seen as a predominantly
‘Roma’ area, she complained that the district had been chosen for that reason
by CEZ. The commission had received numerous such complaints that only Roma
districts were subjected to being publicly
stigmatised as too dishonest to have access to meters. Armed with material that
CEZ had cited Roma ethnicity as a factor for its decision, the
Anti-Discrimination Commission agreed with Ms Nikolova and upheld her case. In
her case
to the CJEU she pressed for an expansive reading of EU anti-discrimination law.
This is the CJEU’s first
opportunity to rule on the application of the Race Equality Directive to the
Roma, Europe’s most disadvantaged minority. A previous reference to the Court
on similar issues (Belov) was
inadmissible, although the Advocate-General’s opinion had considered the substance
of the issues.
Yesterday, the CJEU Grand Chamber
heard argument from CEZ, Ms Nikolova, the Bulgarian Government and the European
Commission.
The central issue on which the
parties divided was the extent of protection under the Directive. Ms Nikolova argued
- as she had in
her written submissions - that Directive
2000/43 bars all discrimination ‘based on race or ethnic origin’ regardless of the
actual race or ethnic origin of the victims. The purpose of this law is to
eliminate all such discrimination: it does not require the victims or the
complainant to have the same race or ethnic origin as the basis for a
discriminatory decision. The Commission agreed, pointing to para 50 of the
CJEU’s judgment in C-303/06
Coleman where discrimination ‘based on disability’ under Directive 2000/78
was found to include adverse action against an employee on account of her
disabled son.
Counsel for CEZ argued that Coleman was a case of discrimination ‘by
association’. Directive 2000/43 allows leeway to states to define this term. Ms
Nikolova’s shop in Gizdova is not the link to Roma origin required by Bulgarian
law. The case was different from Coleman.
The Bulgarian Government agreed.
Judge Prechal, rapporteur in the
case, invited Nikolova’s comment on she called the ‘restrictive’ Bulgarian
definition. Nikolova took a maximalist position: ‘based on’ covers any adverse decision
where actual, apparent or perceived origin was in fact taken into account by
the decision-maker. Only this way could the Directive eliminate all racial
discrimination.
Responding on the question of
comparators, Nikolova argued that where only Roma neighbourhoods are subjected
to adverse treatment, the burden of proof for direct discrimination shifts under
Directive Article 8. Unless CEZ then prove race was not taken into account, there
is no need to consider a hypothetical comparator: direct discrimination based on
race had already been proved.
CEZ denied any racial motivation:
the measures had been adopted due to the problem of illegal connections to the
electricity supply. Illegally constructed dwellings cannot legally be connected
so users connect illegally. The costs of changing meters would be passed on to
customers. No judge could determine whether a measure stigmatises Roma communities,
since the notion is too subjective.
Several judges questioned CEZ on
their defence. Had CEZ considered adopting the smart meter solution of other
Bulgarian companies? CEZ’s counsel was not
familiar with the detail but smart meters are expensive. Judge Rodin pressed
CEZ:
Rodin: How does CEZ decide whose
meters to put out of reach?
CEZ: A technical decision based
on their engineers’ assessment.
Rodin: Do the engineers know the
payment record of individuals when they make this assessment?
CEZ: No, they look at the
situation of the district.
Rodin: Can the electricity
consumer appeal?
CEZ: No.
Judge Borg Barthet weighed in by
asking whether only Roma districts have the meters on poles. CEZ’s Counsel
didn’t know. Judge Lenaerts said he would make it easier:
Lenaerts: Does this happen in
many districts?
CEZ: Define “many”.
Lenaerts: In how many districts
have you done this?
CEZ: Ten or twenty.
The Court moved to replies. CEZ’s
counsel was quick, arguing that CEZ needed flexibility. When Judge Lenaerts
invited him to respond to the other parties, he declined.
Nikolova’s counsel replied asking
for guidance to the national court on indirect discrimination. The comparator
is other districts of Dupnitsa. Differences of illegal connection rates are
relevant only to the objective justification stage. They are not relevant to the
question of comparator, since that would preclude the Directive addressing grossly
disparate consequences in treatment. CEZ say race was no factor in their
decision but claim their relevant records have been destroyed. CEZ claim’s
costs of change would be too high, but has not assessed them. CEZ confirm their
practice is both compulsory - no appeal - and collective – applied to the whole
district, not case by case. CEZ demand flexibility but deny that to Ms Nikolova.
She cannot disprove the public sign that she is an illegal connector.
Advocate-General Kokott’s opinion
will be issued 12 March.
The hearing began in the language
of the case: Bulgarian. The CJEU President had refused Ms Nikolova’s request to
plead in English as the language of her English lead counsel. His co-counsel of the Sofia Bar therefore
opened in Bulgarian. When questions began, Judge Lenaerts invited Ms Nikolova’s
team to respond in English: and her English counsel pleaded the rest of her
case.
Ms Nikolova is represented by the Open Society Justice Initiative
through Simon Cox of the Bar of England and Wales, Yonko Grozev of the Sofia
Bar, and Maxim Ferschtman of the Amsterdam Bar.
Barnard & Peers: chapter 20
Photo: Bjorn Steinz, for the Open Society Foundation
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