Race, Housing, and the Limits of EU Anti-Discrimination Law: A Commentary on the CJEU’s Judgment in the Danish ‘ghetto law’ case

 

 

Karin de Vries (professor of fundamental rights law, Utrecht University) and Sarah Ganty (JSD candidate, Yale Law School; FNRS Post doc fellow, UCLouvain)

 

Photo credit: Kristoffer Trolle, via Wikimedia Commons

 

The so-called Danish ‘ghetto law’ case has been one of the most closely watched judgments of 2025 before the Court of Justice of the European Union (CJEU), long awaited by lawyers working in EU anti-discrimination law and beyond. Its resonance has extended well beyond legal circles, attracting sustained attention from the media and NGOs.

Much has already been written on the judgment, from different perspectives (for example, here, here, here and here). The focus of this contribution is on how the judgment shapes the definition of racial discrimination in EU law, including the emerging tension between objective and social understandings of ethnic origin, the Court’s application of the concepts of direct and indirect discrimination and its reticence to address the structural racism at the roots of the Danish housing policy. Before proceeding to our analysis we first offer a brief outline of the case and the Court’s reasoning.

Background: the Danish ‘ghetto law’

At the heart of the case lies a practice of state-driven gentrification as part of the Danish housing policy. The Danish Law on public housing seeks to reduce the proportion of public housing in certain designated neighbourhoods, officially labelled “transformation areas”. Under the scheme, authorities may sell buildings to private developers, demolish existing housing, or convert family dwellings into accommodation for young people. These measures may entail the unilateral termination of tenants’ leases, resulting in their forced displacement.

To determine which neighbourhoods are subject to restructuring, an earlier version of the Law on public housing introduced the labels of “ghettos” and “hard ghettos”. These labels have since been replaced by the less openly yet still stigmatising terms “parallel societies and “transformation areas”, without however incurring any substantive changes to the scheme. A neighbourhood classifies as a parallel society when it satisfies at least two out of four socio-economic criteria—relating to unemployment, education levels, criminal convictions, and average gross income—and at least 50 per cent of its residents are “immigrants and their descendants from non-Western countries”. Where such a classification persists for five consecutive years, the area is classified as a “transformation area” and becomes subject to the abovementioned far-reaching restructuring measures. The Law on Public Housing also identifies “vulnerable areas”, neighbourhoods that meet the same socio-economic criteria as parallel societies but do not have a majority of “non-Western” residents. These areas are not eligible for restructuring. Hence, the possibility of restructuring turns explicitly on the “Western”/“non-Western” distinction, making the risk of forced relocation contingent upon the demographic composition of a neighbourhood.

The applicants are residents of designated “transformation areas” in the municipalities of Slagelse and Copenhagen. The applicants from Slagelse challenged the termination of their leases, whereas the applicants from Copenhagen sought invalidation of the ministerial decision approving the development plan for their neighbourhood. Both cases reached the High Court of Eastern Denmark, which referred two preliminary questions to the Court of Justice First, whether the criterion “non-Western immigrants and their descendants” constitutes a distinction based on ethnic origin within the meaning of the Race Equality Directive (RED); and second, whether the Danish legislation gives rise to direct or indirect discrimination.

 

The Judgment

 

The Opinion of the Advocate General (Ćapeta) answered both questions in the affirmative, concluding that the distinction is based on ethnic origin and that the difference in treatment amounts to direct discrimination, although it could also be qualified as indirect discrimination. While the Grand Chamber does not fully adopt the AG’s Opinion, much of its reasoning is reflected in the judgment. The CJEU, first of all, concurs with the AG that a public housing scheme such as that existing in Denmark is capable of falling within the material scope of the RED (§ 66). It then proceeds to examine whether the Danish legislation constitutes direct ethnic discrimination. While leaving it to the referring court to ultimately decide this issue, the Court offers detailed guidelines which allow very little room for a negative answer. Still, in case the referring court should conclude that there has been no direct discrimination, the CJEU also provides guidelines to determine whether there has been indirect discrimination. Here the Court interprets the requirement of Article 2(2)(b) RED that persons of a racial or ethnic origin must be put at a ‘particular disadvantage’, as well as the criteria for objective justification. The Court leaves to the referring court to decide, notably, if the Danish legislation puts persons belonging to certain ethnic groups at a particular disadvantage (§ 143) and, if that is the case, if the restructuring measures are appropriate, necessary and proportionate in relation to the public interest of promoting social cohesion and integration (§§ 164-165).

 

On ethnic origin: a step forward but not quite there yet

A central issue in the judgment is whether the category of “non-Western immigrants and their descendants” falls within the prohibited ground of racial or ethnic origin under the RED. The Court of Justice has long displayed an uneasy relationship with the concepts of “race” and ethnic origin — most notably with the former, which it has traditionally been reluctant to invoke expressly. In CHEZ, the Grand Chamber held that ethnic origin ‘has its origin in the idea of societal groups marked in particular by common nationality, religious faith, language, cultural and traditional origins and backgrounds’ (§ 46). While this definition in itself is not unnecessarily restrictive, its application in subsequent cases demonstrated a very restrained understanding of the concept. In Jyske Finans as well as Land Oberösterreich v KV the Court’s focus was on establishing the presence of objective characteristics rather than identifying social processes of racialisation (here) and othering through which such characteristics gain social meaning and become markers of racialized social hierarchy. Moreover, it was suggested that the requirement of a ‘particular’ disadvantage in Article 2(2)(b) RED meant that only ethnically homogeneous groups could seek protection under the Directive, thus excluding differential treatment of heterogeneously composed groups such as ‘third-country nationals’. This approach has been widely criticised in the literature (for example here, here,and here). Commentators have argued that the Court’s understanding of ethnic origin risked hollowing out the protective scope of EU anti-discrimination law and failed to account for the lived realities of racialised exclusion suffered by migrants in particular.

Despite AG Ćapeta’s invitation (Opinion, § 69) the Court does not expressly recognize ‘ethnic origin’ as a socially constructed category. It confirms, however, that the term ‘racial or ethnic origin’ in the RED must be understood in light of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and of Article 14 European Convention of Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR). This confirms the Court’s growing tendency to engage with external sources, especially its Strasbourg counterpart, even as EU accession to the European Convention on Human Rights remains pending. The reference to ECtHR case law is moreover significant as that court has previously espoused a less rigid understanding of ethnicity, notably in the Grand Chamber judgment in Biao v. Denmark where it held that ‘Danes of foreign origin’ were subject to ethnic discrimination. The CJEU also recalls the ECtHR’s consistent qualification of racial discrimination as a ‘particularly invidious form of discrimination which, in view of its perilous consequences, requires […] special vigilance and a vigorous reaction’ (§ 79). It thus makes clear that the issue at stake is one of racial discrimination and that no relevant distinction exists in this regard between the concepts of “race” and ethnic origin. Still, it fails to draw any strong doctrinal consequences from this acknowledgement in the form of a more explicitly social conception of racial discrimination.

A very welcome aspect of the case is the Court’s clarification that ethnic origin—as previously defined in CHEZ—need not be determined by reference to a single or homogeneous ethnic group (§§101-104; §§134-140). Returning to its first judgment on the RED, Feryn (§103), the Court clarifies that the notion of ethnic origin may apply to broadly formulated criteria such as ‘allochtones’, ‘foreigners’ or, indeed, ‘non-Western immigrants’. Still, it continues to insist, as it did in Jyske Finans, that a single characteristic such as nationality or country of birth, can never be indicative of ethnic origin (§ 86). Instead, ethnic origin must always be determined based on a combination of factors. As we argued earlier, this insistence on multiple characteristics denies the reality of racial discrimination in which a single feature (such as someone’s nationality, surname or skin colour, for that matter) may be the reason for differential treatment if that feature functions, in the given context, as a marker of “race” or ethnicity. The Court thus keeps open a significant loophole in EU anti-discrimination law—one that Member States may exploit by designing exclusionary measures around formally non-protected criteria, while shielding them from scrutiny under the prohibition of racial and ethnic discrimination.

In the present case, however, the single characteristic requirement does not stand in the way of a finding of ethnic discrimination. The Court is satisfied that the criterion of ‘immigrants from non-Western countries and their descendants’ is based on a ‘complex combination of criteria’, including country of birth, the nationality and country of birth of the parents and whether those countries of birth and/or nationality are considered, under Danish law, as ‘non-Western’ countries (§ 100).

On direct and indirect discrimination

A distinction based on ethnic origin constitutes direct discrimination if it involves a person being treated less favourable than another in a comparable situation (Art. 2(2)(a) RED). In line with the AG’s Opinion, the Court identifies two types of less favourable treatment that could result from the Danish legislation. The first is that tenants of public family housing in “transformation areas” face a higher chance of having their lease terminated compared to tenants with a similar lease in “vulnerable residential areas”, which are comparable to “transformation areas” in socioeconomic terms but where “non-Western immigrants and their descendants” do not form more than half of the population. It follows from the judgment that the risk of a lease being terminated early is, in itself, sufficient to constitute less favourable treatment, there is no requirement that this risk must have materialised. The Court moreover confirms what it had already decided in CHEZ, namely that there is direct discrimination when less favourable treatment results from a distinction based on ethnic origin, even if among those affected there are people who do not belong to the targeted ethnic group (§ 107). After all, tenants who are not themselves “non-Western” immigrants face the same risk of losing their homes as their “non-Western” neighbours. What is at stake here is a form of discrimination by association, although this concept is not mentioned explicitly by the Court.

Besides the risk of having their leases terminated, the Court notes a second form of harm that the applicants may have suffered, which is stigmatisation. Here the Court shows itself much more deferential to the Danish courts: it is up to the referring court to investigate if ‘the very name “transformation area”, which for the residents of areas classified as such gives rise to an increased risk of early termination of their lease, and which replaced the name ‘hard ghetto area’ is, at national level, offensive and stigmatising’ (§ 126). It is interesting that, at this point, the Court does show consciousness of the fact that the meaning of certain terms is socially constructed and can therefore differ over time and place, in this case leaving the Danish courts in a better position to determine the stigmatising connotations of the notion of “transformation areas”.

After having thus applied a broad definition of direct discrimination, which acknowledges both redistributive and recognitional harm, the Court moves on to examine the possibility of indirect discrimination. According to the Court itself, this analysis is necessary in case ‘the referring court concludes that the national legislation at issue […] does not constitute direct discrimination’ (§ 130). While this may at first sight seem a logical step to take, the Court’s consideration of indirect discrimination becomes less obvious if it is taken into account that the previous part of the judgment leaves very little to no room for the referring court to find that there has not been any direct discrimination. Indeed, once direct discrimination is established, the analysis can end there: discrimination is either direct or indirect, but not both, at least not on the same ground.

This move is troubling. The scheme at issue is plainly not one of indirect discrimination, and introducing this layer of analysis risks generating confusion rather than clarity for national courts. For one, if the referring court concludes that there is no direct discrimination because, after all, the criterion concerning “non-Western immigrants and their descendants” does not result in differential treatment based on ethnic origin, this would raise the question of what would then be the ethnic group (or groups) that could be put at a particular disadvantage, as required by Article 2(2)(b) RED. This is a question on which the judgment remains silent. The risk of confusion is further exacerbated by the fact that the Court’s own conceptualization of indirect discrimination is fraught with difficulties, as illustrated most clearly by its case law on religious symbols and headscarves (see here and here).

On the upside, the judgment does provide valuable clarification as to how the case should be assessed if viewed through the lens of indirect discrimination. This may prove practically significant, as experience shows that even where direct discrimination is formally removed, discriminatory effects often re-emerge—consciously or unconsciously—through ostensibly neutral criteria. One can easily imagine, for instance, that the Danish legislator might in the future abandon the explicit reference to “non-Western immigrants and their descendants”, while continuing to target specific neighbourhoods through socio-economic indicators that would, in practice, place that very group at a particular disadvantage. Some key takeaways from The Court’s analysis are: 1) that the aim of “ensuring successful integration of third-country nationals (TCNs)” is legitimate in principle; 2) the potential of the Danish scheme to actually promote social cohesion and integration is viewed as doubtful, not least because it does not apply to “vulnerable residential areas” that are socioeconomically comparable to “transformation areas” but without a majority “non-Western” population (§§ 162-163); 3) in addition to the requirements of appropriateness and necessity, which are expressly mentioned in Article 2(2)(b) RED, the Court examines the measures’ proportionality stricto sensu, something that has not commonly done before (see here and here); 4) regarding this proportionality stricto sensu, it must be taken into account that the right to respect for the home is a fundamental right protected by the EU Fundamental Rights Charter (Article 7) and that, according to ECtHR case law, the loss of one’s home constitutes “a most extreme form of interference” (§ 170).

Structural discrimination

In sum, there is a clear suggestion that the Danish scheme would also have to be considered as indirectly discriminatory – at least if a particular disadvantage to one or more ethnic groups can be established. The judgment can thus be readily qualified as an important blow to Denmark’s “ghetto” policy. Still, from a perspective of structural equality several problematic aspects remain – we round off this blog by mentioning two of them. The first, already raised by one of us elsewhere, is that the judgment entrenches the existing distinction between EU citizens and third-country nationals whereby only the latter are deemed in need of integration. This becomes evident in the indirect discrimination analysis, where it is pointed out that “integration” is a legitimate public interest only where third-country nationals are concerned (§ 151) – the subtext being that EU citizens are by definition already integrated.

Second, the Court seems to leave open the possibility that, under certain circumstances, “gentrification” measures such as those imposed by Denmark might be proportionate. This suggestion is troubling, given that those measures reflect a discriminatory logic that runs even deeper than the use of stereotypes in legislative documents or the harm suffered by individual tenants who are forced to leave their homes. At the basis of Denmark’s (or perhaps any) integration policy lies the rationality of Goldberg’s ‘racial state’ – the notion that at its core the modern state serves to protect public order by excluding the racialised other. It follows that any proportionality analysis cannot meaningfully abstract from the fact that the policy is premised on the stigmatization of racialised and impoverished communities. Yet is seems that the Court failed to recognise this, unlike in CHEZ where it expressly acknowledged the offensive and stigmatising nature of the practice at issue (§§84 and 108).

In short, there are several positive points to be noted about the judgment. These are, in particular, the Court’s acknowledgement that race discrimination does not turn on the presence of a homogeneous ethnic group, its recognition of the stigmatisation inherent in the so-called ‘ghetto law’ and its engagement with international instruments and proportionality in the indirect discrimination analysis. Still, the Court stops short of addressing the central issue at stake: the systemic and structural character of racialised exclusion. By avoiding a direct confrontation with structural racism, the Court ultimately does not get to the bottom of what makes the Danish ‘ghetto law’ so deeply problematic.

 

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