Another failed opportunity for the effective protection of LGB rights under EU law: Dr David. L. Parris v. Trinity College Dublin and Others

Dr Alina Tryfonidou, Associate Professor in EU Law, University of Reading

Introduction

The recent judgment in the Parris case is another failed opportunity for the ECJ to offer effective protection to LGB persons and same-sex couples under EU law. Despite some signs in recent cases (Asociaţia Accept and Hay) that the EU Court has been taking its role as protector of the rights of LGB persons under EU law more seriously, in its judgment in Parris, like in its decision in Léger (discussed here) which was the last case involving LGB persons that was decided prior to Parris, the Court seems to be treading cautiously around matters that are delicate from the point of view of the Member States. In particular, in this case, the Court seems wary of the danger of being accused of imposing its own views with regards to a matter for which there is – still – great diversity of opinion among the Member States, namely, the recognition of same-sex relationships. The judgment, also, demonstrates the ECJ’s failure to accept the reality of multiple discrimination, as it was ruled that if a measure does not give rise to discrimination on any of the grounds prohibited by Directive 2000/78 – when these grounds are taken in isolation – then it cannot be considered to produce discrimination on the basis of the combination of those two factors.

Legal and Factual Background

The request for a preliminary ruling in the Parris case was referred by the Labour Court (Ireland) hearing an appeal from a decision of the Equality Tribunal (Ireland) in proceedings brought by Dr David L. Parris – a retired academic – against Trinity College Dublin (his former employer), the Higher Education Authority (Ireland), the Department of Public Expenditure and Reform (Ireland) and the Department of Education and Skills (Ireland), arguing that he had been discriminated against by the defendants by reason of his age and sexual orientation. The proceedings concerned the refusal by Trinity College Dublin to accept Dr Parris’s request that on his death, the survivor’s pension provided for by the occupational benefit scheme of which he was a member, should be granted to his civil partner. The refusal was based on the fact that Dr Parris entered into a civil partnership with his male partner only after he had turned 60 and the said occupational scheme provides that survivor’s pension is payable only if the claiming member married or entered into a civil partnership before reaching the age of 60. (Note that the civil partnership was entered into in the UK in 2009, once Dr Parris was over 60, but was only recognised in Ireland from 2011 onwards, when the Irish legislation regarding civil partnerships came into force).

In Ireland, civil partnerships can only be entered into since January 2011, whilst marriage between persons of the same sex has been made available only since November 2015. In addition, the statute which gave same-sex couples the right to enter into a civil partnership, excluded the retrospective recognition of civil partnerships registered in another country, which meant that civil partnerships entered into abroad could be recognised in Ireland only prospectively, from January 2011. Thus, as Dr Parris was born in 1946, he could only enter into a civil partnership or marry his same-sex partner in Ireland after reaching the age of 60; and, similarly, any civil partnership he had entered into in another country, could only be recognised in Ireland after he had reached the age of 60.

This meant that under no circumstances would a person who had Dr Parris’s sexual orientation and age be able to claim a survivor’s benefit for his (same-sex) civil partner or spouse under the contested pension scheme. Or, to put the issue more broadly, LGB persons born before 1 January 1951 are excluded in all instances from claiming a survivor’s benefit for their same-sex civil partner or spouse under the contested pension scheme.

The main question of the referring court was whether the application of a rule in an occupational benefit scheme specifying an age by which its members must marry or enter into a civil partnership for their spouse or civil partner to be entitled to a survivor’s pension, amounts to discrimination on grounds of age and/or sexual orientation, contrary to Directive 2000/78.

The AG Opinion

In her Opinion, Advocate General Kokott firstly noted that the contested rule does not amount to direct discrimination on the ground of sexual orientation, as ‘[t]he mere fact that an employee has not married or entered into a civil partnership before his 60th birthday – whether on account of legal barriers or by choice – is not directly linked to his sexual orientation … Had Dr Parris married a woman after his 60th birthday, for example, she would have been excluded from eligibility for the survivor’s pension in exactly the same way as his current partner under the terms applicable to that pension’. The Advocate General then pointed out that the rule does, however, amount to indirect discrimination on the ground of sexual orientation since ‘the 60-year age limit affects a large number of homosexual employees in Ireland more severely and more deleteriously than their heterosexual colleagues … all homosexual employees in Ireland who were born before 1951 were universally barred from entering into a civil partnership in good time before their 60th birthday because the institution of civil partnership did not exist in that Member State until 2011 and the best option previously available to same-sex couples was to live together as “common-law” partners. It was therefore impossible for legal reasons for that group of people to secure a survivor’s pension for their respective partners under the occupational pension scheme at issue and thus to provide the latter with a form of social protection that their heterosexual colleagues and their spouses were able to take for granted’. The Advocate General also found that there was (unjustified) direct discrimination on the ground of age as ‘employees who do not enter into a marriage or civil partnership until after they have reached their 60th birthday are treated less favourably than employees who do so at a younger age’.

Despite the fact that the Advocate General found that the contested rule can amount to discrimination on the grounds of sexual orientation and age taken separately, her preferred approach was to consider that the rule is discriminatory on the combined grounds of sexual orientation and age: ‘In the present case, particular attention will have to be given to the fact that any discrimination perpetrated against the person concerned is attributable to a combination of two factors, age and sexual orientation. The Court’s judgment will reflect real life only if it duly analyses the combination of those two factors, rather than considering each of the factors of age and sexual orientation in isolation.’ The Advocate General explained that ‘employees such as Dr Parris would, in accordance with Article 2(2)(b) of Directive 2000/78, have to be regarded as being at a particular disadvantage by reason of a combination of their sexual orientation and their age because the terms of the pension scheme have the effect of systematically depriving their surviving partners in particular of a survivor’s pension. It is true that, for all employees, the surviving partner’s eligibility for a survivor’s pension is subject to the (apparently neutral) condition that the couple must have entered into a marriage or civil partnership before the employee’s 60th birthday. In truth, however, this systematically excludes homosexual employees born before 1951 in particular – unlike all other categories of employee – from a survivor’s pension of this kind because those employees would never have been able to satisfy the aforementioned condition even if they had wanted to’.

The Judgment

The Court in its judgment was of the view that the contested rule does not give rise to direct discrimination on the ground of sexual orientation because it does not refer directly to the worker’s sexual orientation. Unlike the Advocate General, however, the Court also found that the contested rule did not give rise to indirect discrimination on this ground either.

The Court began by considering the reason behind Dr Parris’s failure to satisfy the contested rule:

‘on the date on which Mr Parris retired, 31 December 2010, he did not satisfy the conditions laid down by the applicable national rule for his civil partner to be entitled to the survivor’s benefit at issue in the main proceedings, since the civil partnership he had entered into in the United Kingdom was not yet recognised in Ireland, and in any event, even if it had been recognised, it could not have given an entitlement to such a benefit, as it had been entered into after the member’s 60th birthday.’

‘the fact that Mr Parris is unable to satisfy that condition is a consequence, first, of the state of the law existing in Ireland at the time of his 60th birthday, in particular the absence at that time of a law recognising any form of civil partnership of a same-sex couple, and, secondly, of the absence, in the rules governing the survivor’s benefit at issue in the main proceedings, of transitional provisions for homosexual members born before 1951’.

The Court then – referring to Recital 22 of Directive 2000/78 – proceeded to highlight the deference it shows towards Member State laws regarding the regulation of marital status in their territory and, in particular, the legal recognition of same-sex relationships: these are matters with respect to which Member States have maintained their full competence, and, thus, they can regulate them in whichever way they choose, provided that when doing so they comply with their obligations under EU law. The Court then explained that the ‘Member States are thus free to provide or not provide for marriage for persons of the same sex, or an alternative form of legal recognition of their relationship, and, if they do so provide, to lay down the date from which such a marriage or alternative form is to have effect’. From this, the Court concluded that ‘EU law, in particular Directive 2000/78, did not require Ireland to provide before 1 January 2011 for marriage or a form of civil partnership for same-sex couples, nor to give retrospective effect to the Civil Partnership Act and the provisions adopted pursuant to that act, nor, as regards the survivor’s benefit at issue in the main proceedings, to lay down transitional measures for same-sex couples in which the member of the scheme had already reached the age of 60 on the date of entry into force of the act’. Accordingly, in the ECJ’s view, the contested rule did not produce indirect discrimination on grounds of sexual orientation.

The Court, however, found that the contested measure did establish a difference in treatment that was directly based on the criterion of age: ‘such a rule thus treats members who marry or enter into a civil partnership after their 60th birthday less favourably than those who marry or enter into a civil partnership before reaching the age of 60’. This difference in treatment, nonetheless, falls – according to the Court – within the scope of Article 6(2) of the Directive, as it ‘fixes an age for entitlement to an old age benefit’ and, hence, it does not constitute discrimination on grounds of age.

The final issue that the Court had to consider was that of multiple discrimination, i.e. whether the contested rule was capable of creating discrimination as a result of the combined effect of sexual orientation and age, where that rule does not constitute discrimination either on the ground of sexual orientation or on the ground of age taken in isolation. The Court noted:

‘while discrimination may indeed be based on several of the grounds set out in Article 1 of Directive 2000/78, there is, however, no new category of discrimination resulting from the combination of more than one of those grounds, such as sexual orientation and age, that may be found to exist where discrimination on the basis of those grounds taken in isolation has not been established.’

‘Consequently, where a national rule creates neither discrimination on the ground of sexual orientation nor discrimination on the ground of age, that rule cannot produce discrimination on the basis of the combination of those two factors’.

Analysis

The judgment in the Parris case confirms and further highlights two trends that had already been prevalent in previous case-law: a) that the Court is reluctant to intervene in situations which touch on matters that fall to be regulated exclusively at Member State level, especially when such matters involve morality judgements for which there is great diversity of views among the Member States and b) that the Court ignores the reality of multiple discrimination.

a) Sensitive Matters that Fall within Exclusive Member State Competence

As seen earlier, Recital 22 of Directive 2000/78 played an important role in the Court’s conclusion in the case that the contested rule did not amount to (indirect) discrimination on the ground of sexual orientation. The Recital provides that ‘[t]his Directive is without prejudice to national laws on marital status and the benefits dependent thereon’. In relation to this, the Court in its judgment explained that the Member States are free to decide whether to open marriage or registered partnerships to persons of the same sex and if they do so to lay down the date from which such a marriage or alternative form is to have effect. From this it concluded that the refusal of the survivor’s benefit was – simply – a consequence of the application of Irish law concerning same-sex partnerships (and, in particular, the lack of a civil status for such partnerships at the relevant time), and, hence, respecting the competence of the Member States with regards to these matters, EU law (and, in particular, Directive 2000/78) could not apply in order to require Ireland to ‘to provide before 1 January 2011 for marriage or a form of civil partnership for same-sex couples’.

This line of reasoning appears – with respect – to be erroneous. In areas like this (i.e. legal recognition for same-sex relationships) which fall to be regulated by Member States exclusively, the ECJ can still intervene in order to require the said legislation to be applied in a manner which is compliant with EU law. Hence, the application of Directive 2000/78 in this instance would require the removal of discrimination on the (combined) grounds of sexual orientation and age – which, in my view, is the discrimination that was suffered on the facts of the case – which could be achieved by an amendment of the rule (most likely, the requirement would be to permit LGB persons born before 1951 to claim survivor’s benefit for their same-sex partner even if they entered into a civil partnership or marriage after they turned 60), but it wouldn’t require Ireland to recognise such relationships retrospectively, by changing the date from which they have effect (which is a matter that falls to be regulated exclusively by Ireland). In other words, Ireland would remain free to determine how to regulate same-sex relationships – as required by Recital 22 of Directive 2000/78 – but would have to require pension schemes etc which apply to such relationships to make provision for the different legal situation of persons that have such relationships and to take that into account, by providing for an exception to the rule in situations where it is (legally) impossible to satisfy the age condition due to the law in Ireland (as opposed to the personal choice of the couple), which only allowed the legal recognition of same-sex relationships after a certain date.

As noted by Advocate General Kokott in response to the argument of the defendants, the UK Government, and the Commission, that a finding of discrimination based on sexual orientation in this case could have the consequence of conferring de facto retroactive effect on the institution of civil partnership (which would go against Recital 22 of Directive 2000/78), such a finding ‘does not in any way compel the Irish State to change the marital status of an employee such as Dr Parris retroactively’ as ‘Dr Parris and his partner are today recognised by the Irish State as living together as a couple, and they are today claiming – prospective – occupational pension scheme benefits corresponding to their marital status as it stands today. They are not in any way claiming a benefit to which their marital status does not entitle them. They are certainly not claiming such a benefit retroactively. Nor are they seeking a retroactive change to their marital status. Rather, they are simply defending themselves against a term contained in the occupational pension scheme at issue – the 60-year age limit – which was laid down in the past but discriminates against them today.’

Accordingly, by hiding behind Recital 22, the Court seems to be avoiding to intervene in this case, in this way allowing Member States not merely to regulate same-sex relationships and the consequences ensuing from entering them (which is, indeed, a matter that is wholly to be regulated at Member State level), but also to discriminate against LGB persons who – by virtue of a legal disability (i.e. their inability to enter into a marriage or registered partnership in a certain Member State until a certain date) – are differently situated from heterosexual persons who had the (legal) option of entering into a marriage or registered partnership by the required age, but chose not to do so. This approach seems to be in line with the approach followed by the Court with regards to issues involving fundamental societal choices. In particular, in relation to matters which involve deeply held national societal mores or values, the Court and the EU legislature have been very reserved in their approach and have focused on respecting the sovereignty of the Member States, even to the extent of avoiding applying EU law rigorously (e.g. Henn and Darby) or at all (e.g. Grogan). This nonetheless comes at a cost, this being that the rights that individuals derive from EU law are sacrificed at the altar of Member State sovereignty. Should there not be a requirement that the EU, which is a polity that values, inter alia, fundamental human rights and equality, act as an external arbiter of the choices of the Member States with regards to these issues when these choices come into conflict with the rights that individuals derive from the Treaty and secondary legislation? In other words, should the EU not come to the rescue of individuals that derive rights from EU law and require the Member States to ‘think federal’ with regards to these matters, as long as the EU does not impose its own views in relation to them? It is not suggested here that morality and value judgements should now be made at the EU level; as Weiler has noted, there should be ‘fundamental boundaries’ which are ‘designed to guarantee that in certain areas communities […] should be free to make their own social choices without interference from above’.[1] However, Member States should be aware that when regulating these matters they must take into account and cater for the rights that individuals enjoy under EU law, and if they do not, then the ECJ or (in most instances) the national courts as enforcers of EU law, should intervene in order to ensure that Member States comply with their obligations under EU law. 

b) Multiple Discrimination

The other notable feature of the judgment in Parris is the Court’s express rejection of the possibility that multiple discrimination can be prohibited by Directive 2000/78. The Court had, already, been faced with a situation involving discrimination on the combined grounds of sex and sexual orientation in the Léger case, which was decided in 2015. Despite the fact that the Advocate General in that case found that the contested measure did amount to such (multiple) discrimination, the Court in that case simply brushed aside the matter, by focusing on the question of whether the said measure amounted (simply) to discrimination on the ground of sexual orientation.

In this case, however, it was more difficult for the Court to avoid the matter as the possibility of multiple discrimination – in this instance on the combined grounds of sexual orientation and age – was specifically mentioned by the referring court and the third question referred was, exactly, focused on this issue. However, as noted earlier, the Court explicitly pointed out that ‘where a national rule creates neither discrimination on the ground of sexual orientation nor discrimination on the ground of age, that rule cannot produce discrimination on the basis of the combination of those two factors’, thus rejecting the possibility of a finding of multiple discrimination under Directive 2000/78.

It is, indeed, true that multiple discrimination presents challenges that are not faced when an assessment of a single ground of discrimination is made.

One such difficulty is that a multiple discrimination assessment contradicts the classic single-ground model of discrimination law analysis which requires the identification of a single hypothetical comparator who must only have a single characteristic – the one that it is claimed that the discrimination complained of is based – that is different from the person that is treated worse. Yet, at the same time, an analysis which is – artificially – pushed to fit this model by insisting on an examination of the difference in treatment by using a single ground, may be incapable of accurately reflecting the situation that pertains in a certain case. For instance, on the facts in Parris, it would be inaccurate to compare all LGB persons with all heterosexual persons; or all LGB persons who have entered into a marriage or registered partnership with all heterosexual persons who have done so too; or all persons born before 1951 with all persons born after 1951. It was only LGB persons who were born before 1951 that were treated worse than everyone else (i.e. LGB persons born after 1951 and heterosexual persons in general). Accordingly, the difference in treatment complained of was based on the combined grounds of sexual orientation and age and, thus, the failure of the Court to find this misrepresents the reality of discrimination that was suffered on the facts of the case and – at a broader level – contributes to the continued invisibility of the phenomenon of multiple discrimination.

Another difficulty with multiple discrimination and its prohibition under EU law is that there is a hierarchy in the protection from discrimination on various grounds (with race and ethnic origin coming at the top, followed by sex, and then by the Directive 2000/78 grounds) which means that it is difficult to apply a single analysis in a situation where discrimination is suffered on more than one ground simultaneously. This, in fact, is the reason why legal advisors handling cases involving multiple discrimination usually make a strategic decision as to which single ground to choose, taking into account the protection afforded in relation to that ground as well as what is possible and attainable on the facts of the case.

Yet, and despite the above difficulties, it is important that where there is multiple discrimination, that this is reflected in the Court’s analysis. This is because, as noted by the Advocate General in Parris, a finding of multiple discrimination requires that a different approach to justifications is taken, as ‘[t]he combination of two or more of the grounds for a difference of treatment referred to in Article 1 of Directive 2000/78 may also mean that, in the context of the reconciliation of conflicting interests for the purposes of the proportionality test, the interests of the disadvantaged employees carry greater weight, which increases the likelihood of undue prejudice to the persons concerned, thus infringing the requirements of proportionality sensu stricto’.

Despite the fact that the EU legislature and the ECJ seem to ignore the reality of multiple discrimination, there have already been calls by the EU institutions to take this form of discrimination more seriously and to take action in order to increase both the capacity to recognise and identify occurrences of multiple discrimination and awareness of the need to combat them as such. It is important for the institutions, bodies and courts, that apply anti-discrimination law to become aware and able to identify the unique ways in which individuals experience multiple discrimination (see, for instance, Report commissioned by the European Commission ‘Tackling Multiple Discrimination: Practices, policies and laws’ (2007) available at http://ec.europa.eu/social/main.jsp?catId=738&pubId=51). Accordingly, the ECJ should take the opportunity – when it arises again – to rule that EU anti-discrimination law prohibits not merely single-ground but also multiple discrimination and to provide guidance as to how to deal with cases of such discrimination. After all – as stressed by the Advocate General in Parris – ‘it is apparent at several points in the Directive [i.e. Directive 2000/78] that its authors were acutely aware of this issue [i.e. multiple discrimination] and assumed that it could be adequately resolved by recourse to the instruments provided by the Directive’.

Further Reading

N. Bamforth, M. Malik and C. O’Cinneide, Discrimination Law: Theory and Context (Sweet & Maxwell, 2008), Chapter 9

K. Lenaerts, ‘Federalism and the Rule of Law: Perspectives from the European Court of Justice’ (2011) 33 Fordham International Law Journal 1338

A. Tryfonidou, ‘The Federal Implications of the Transformation of the Market Freedoms into Sources of Rights for the Union Citizen’ in D. Kochenov (ed.), Citizenship and Federalism in Europe (Cambridge, CUP, 2016, forthcoming)

A. Tryfonidou, ‘Discrimination on the Grounds of Sexual Orientation and Gender Identity’ in S. Vogenauer and S. Weatherill (eds), General Principles of Law: European and Comparative Perspectives (Oxford, Hart, 2017, forthcoming)

Report: ‘Tackling Multiple Discrimination: Practices, policies and laws’ (2007) available at http://ec.europa.eu/social/main.jsp?catId=738&pubId=51

Report by S. Fredman, ‘Intersectional discrimination in EU gender equality and non-discrimination law’ (May 2016), available at http://ohrh.law.ox.ac.uk/new-report-intersectional-discrimination-in-eu-gender-equality-and-non-discrimination-by-professor-fredman/

Barnard & Peers: chapter 20

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[1] J. H. H. Weiler, ‘Fundamental Rights and Fundamental Boundaries: On the Conflict of Standards and Values in the Protection of Human Rights in the European Legal Space’, in J. H. H. Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ And Other Essays on European Integration (Cambridge: Cambridge University Press, 2005), pp. 103–104. 

Religious discrimination in the workplace: which approach should the CJEU follow?

Ronan McCrea*

* Senior Lecturer at the Faculty of Laws at UCL and the author of Religion and the Public Order of the European Union (OUP 2010) and Religion et l’Ordre juridique de l’Union Europeenne (Bruylant 2013).

After many years in which religious issues barely figured in Luxembourg case law we have had in recent weeks two opinions from Advocates General of the Court of Justice of the European Union on the question of religious expression at work.

Interestingly, AG Kokott (in her opinion in Achbita) and AG Sharpston (in her opinion in Bougnaoui) have come to what appears to be conflicting conclusions on the compatibility of rules restricting the wearing of religious symbols at work (in both cases Islamic headscarves) with the prohibition of direct and indirect discrimination in employment in Directive 2000/78 – the the framework equality directive, which bans discrimination in the workplace on grounds of age, religion, sexual orientation and disability. (On the background to the two cases, see also the earlier analysis of Sara Benedi Laheurta).

Both Advocates General concluded that, where a ban on religious symbols at work is found to be indirectly discriminatory, a balancing exercise must be carried out. However, they were in disagreement as to whether such a ban could be found to constitute direct discrimination.

The reasoning through which they came to these conflicting conclusions highlights the key dilemma that makes cases relating to religion in the workplace so difficult.

The key difference between the two Advocates General lies in how they characterize religion. In her opinion AG Kokott, characterized religion as a matter of belief and ideology thereby distinguishing it from other protected characteristics such as gender or race. She noted that the ban in question covered all religious and political signs and that:

“That requirement of neutrality affects a religious employee in exactly the same way that it affects a confirmed atheist who expresses his anti-religious stance in a clearly visible manner by the way he dresses, or a politically active employee who professes his allegiance to his preferred political party or particular policies through the clothes that he wears (such as symbols, pins or slogans on his shirt, T-shirt or headwear).” (para 52)

Thus a distinction could be made between:

“immutable physical features or personal characteristics — such as gender, (26) age or sexual orientation — rather than with modes of conduct based on a subjective decision or conviction, such as the wearing or not of a head covering at issue here.” (para 45)

AG Sharpston on the other hand, found that direct discrimination had taken place stating that an employee “who had not chosen to manifest his or her religious belief by wearing particular apparel would not have been dismissed. Ms Bougnaoui’s dismissal therefore amounted to direct discrimination.” (para 88)

She characterized religion as a form of identity, akin to race or gender, stating that:

“to someone who is an observant member of a faith, religious identity is an integral part of that person’s very being. The requirements of one’s faith – its discipline and the rules that it lays down for conducting one’s life – are not elements that are to be applied when outside work (say, in the evenings and during weekends for those who are in an office job) but that can politely be discarded during working hours. Of course, depending on the particular rules of the religion in question and the particular individual’s level of observance, this or that element may be non-compulsory for that individual and therefore negotiable. But it would be entirely wrong to suppose that, whereas one’s sex and skin colour accompany one everywhere, somehow one’s religion does not.” (para 118)

As with many debates in relation to law and religion, one has the slight impression that two Advocates General are talking at cross-purposes. The problems that arise in regulating religious expression at work is that religion is both a set of ideological beliefs and a form of identity.

This makes things particularly difficult. If one views religion as a set of beliefs, this often calls out for treatment which is entirely contrary to the treatment that would be appropriate if religion were regarded as a form of belief.

If one views religion as immutable identity then refusing to allow someone to wear a headscarf or crucifix when dealing with the public is akin to refusing to allow a worker with brown skin from serving customers. On the other hand, if one views religion as a form of ideology and belief, then refusing to allow a worker wearing a religious symbol from serving customers is no less justifiable than refusing permission to a worker to wear a Labour Party/Les Republicains/British National Party/Jobbik/ badge while at work.

Often, there simply is no way to treat religion that does justice to its belief and identity elements at the same time.

The key legal issue is whether the decision of an employer to decide to treat religion as a form of belief rather than identity was correct (in Strasbourg cases the issue will be whether the choice of the state to characterize religion in a particular way was reasonable). (See R McCrea, "Secularism before the Strasbourg Court: Abstract Constitutional Principles as a Basis for Limiting Rights" 79 (4) Modern Law Review 691-705.)

Therefore, AG Sharpston’s argument that religion is a form of identity akin to race is neither here nor there.  It is clear that religion is both identity and belief.  What is needed are criteria to work out when it is right to treat religion as belief and when it is right to treat it as identity.

The two Advocates General have provided eloquent arguments in favour of seeing religion in the workplace as a form of identity and form of belief respectively. Both approaches are appropriate at times. In relation to blasphemy laws, it is probably best to see religion as a form of ideology. In relation tot the right to receive services in a shop, it is probably best to see it as a form of identity.  The situation of employees is more complicated. Hopefully the Court of Justice’s coming rulings will provide criteria that will be helpful in establishing why either approach is to be favoured over the other in the context of employees at work. Given the controversial nature of this issue, it may well be tempted to follow the approach of its Strasbourg counterpart and decide that it is reasonable for Member States to choose either approach.

Barnard & Peers: chapter 20

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When all the people in a district are victims of race discrimination: CJEU ruling in CHEZ v Nikolova

Simon Cox, lawyer at the Open Society Justice Initiative* 

Last week’s CJEU judgment in C-83/14 CHEZ v Nikolova shows the important role of the CJEU to advance the struggle of Roma communities against systematic discrimination by businesses and Governments. Moreover, the Grand Chamber ruling on equal treatment establishes a powerful tool for districts marginalized by powerful actors.

The case is a great example of how the CJEU can empower lower national courts. The Bulgarian Anti-Discrimination Commission had repeatedly condemned as discriminatory the practice of electricity company CHEZ (aka CEZ) of placing meters out of reach of consumers only in Roma districts. But CHEZ – a powerful company in Bulgaria and Czech Republic - had persuaded the Supreme Court to reverse these rulings. To go over the head of the Supreme Court, the Anti-Discrimination Commission referred questions to the CJEU in Belov. But the CJEU ruled the Commission was not a court and rejected the reference as inadmissible. So the Sofia Administrative Court used the Nikolova case – an appeal by CHEZ already before it – to refer similar questions. This led to CHEZ judgment, in which the CJEU – though charged only with interpreting the law – helps the national court with a clear evidential and factual path to draft a judgment to survive further appeal.

Ms Nikolova is not Roma. Two arguments were made against her because of this. First, that a practice affecting a district could only be indirectly discriminatory on grounds of ethnic origin if everyone in the district had that ethnic origin. Second, that Ms Nikolova could not complain of discrimination. CHEZ accepted that the idea of ‘discrimination by association’ could extend the category of persons beyond those of Roma origin, but denied Ms Nikolova was sufficiently ‘associated’ with her Roma neighbours.

The Court rejected these arguments, ruling that the purpose of the Directive is to end discrimination on grounds of racial or ethnic origin, not only to protect individual members of groups who are targeted by discrimination (para 56). Accepting Ms Nikolova’s arguments, the CJEU repeated the passage from paragraph 50 of Coleman affirming that there is discrimination against any person who, on account of those grounds, suffers less favourable treatment or a particular disadvantage – regardless of the race or ethnic origin of that person. So, if a measure against a district is based on grounds of the Roma origin of the district’s majority, then the minority in that district are also victims of that discriminatory measure.

Through this approach, the CJEU affirms that the principle of equal treatment empowers every affected individual – and the courts - to end discrimination by all available means, urgently and effectively. Simplifying the law strengthens the ability of oppressed communities to combat discrimination. Challenges will surely continue to be made predominantly by people with the race or ethnicity on which the discrimination is based. But the court defeats CHEZ’s attempt to require that applicants ‘prove’ their own ethnicity and limits the enquiry to whether there is discrimination and if so whether this discrimination affects the claimant.

The Court ruled that CHEZ’s practice is direct discrimination, if the ethnicity of the majority is the reason for the practice, for example, if CHEZ selected the districts because of their Roma population (para 76).

The court made a fundamentally important ruling on indirect discrimination: this requires any measure disadvantaging a Roma majority district which is not applied to non-Roma majority districts to be objectively justified. CHEZ wanted a narrow interpretation of the comparator district, arguing that Ms Nikolova’s district could only be compared to districts with similar levels of interference with electricity meters. The Court rejected this, ruling that the appropriate comparators are other urban districts provided with electricity by CHEZ (para 90).

These rulings on ‘district discrimination’ are very powerful tools. Politically weak communities may be treated badly by government or business in areas like transport, power, schooling and other amenities. Where this differential treatment follows differences in ethnic make-up of districts, then groups or individuals in the district can use the ruling to bring discrimination claims. Courts can order disclosure of documents, to see if race was a factor in decision-making, as the CJEU affirmed at paragraph 78. Where it was not a factor, the CJEU ruling on comparators means authorities must show that the objective differences between the districts justify the differential treatment. They may struggle to justify denial of transport provision or electricity connection, or extortionate insurance or service charges.

The final important piece of the judgment is justification. The Court ruled that, even if race was no factor in CHEZ’s decisions, the practice was seen by others as effectively labelling a Roma community as electricity thieves, regardless of their payment history and behavior. In the context of anti-Roma stereotypes, the measure was seriously harmful. Agreeing with Ms Nikolova, the Court ruled that such a practice is incapable of justification. The community has a right under EU law to enjoy access to electricity “in conditions which are not of an offensive or stigmatising nature and which enable them to monitor their electricity consumption regularly”: para 128.

What happened to the notion of ‘discrimination by association’? The CJEU accepted Ms Nikolova’s argument that this is not part of EU law. It was the label attached by practitioners and academics to the Coleman judgment, but not one the Court had adopted. Like paragraph 50 of Coleman, which the court cites, the Nikolova judgment makes no mention of ‘by association’.  Dee Masters and Siȃn McKinley have argued that this approach makes indirect discrimination unworkable in certain situations. A coach reservation fee bears more heavily on people whose disability gives rise to a need to be accompanied. The concept of ‘association’ is needed, they argue, to limit the class of potential claimants to persons needed to accompany the disabled person. But this scenario is different from Nikolova, where the measure applied only to users in the majority-Roma districts, thereby putting all those users at a disadvantage when compared with users in a different district. In the coach scenario, the charging practice applies to all coach passengers. The differential disadvantage arises from the disability of the passenger, not their membership of the larger affected group. The passenger with a disability can complain about the negative impact of the fee for their seat and that for the companion. Indeed, the companion may also argue that the principle of equal treatment has been wronged as regards them. But a person who has neither a relevant disability nor is a companion of such a person is not affected by a differential impact on grounds of anyone’s disability. Ms Nikolova was – she had a disadvantage compared to users in non-Roma districts.

CHEZ has responded to the judgment by pointing to recent deaths by electrocution in other parts of Bulgaria of people attempting to make irregular connections: but it has not made meters inaccessible in these districts. EVN, a different Bulgarian electricity provider, contradicted CHEZ’s concerns about electricity theft. In the majority-Roma district in Stoliponovo – where EVN put the meters at a normal level some years ago - 95% of charges are paid. According to EVN, the real problem with electricity theft in Bulgaria is professionals and rich people running hotels, pubs and ski resorts.

The case now returns to the Sofia Administrative Court, where Ms Nikolova will seek an order that CHEZ restore the meters to their normal height for all users in her district.

*Simon Cox is a lawyer at the Open Society Justice Initiative and represented Ms Nikolova before the CJEU. The Open Society Justice Initiative works to make law a more effective tool against racial discrimination.

Barnard & Peers: chapter 20 

Photo: Bjorn Steinz, Open Society Foundation

Racial discrimination & collateral damage – Coleman revisited

 

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