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 These labels have since been replaced by the less openly yet still stigmatising terms “parallel societies and “transformation areas”, without however incurring any substantive changes to the scheme.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.

 

More majority voting on EU social policy? Assessing the Commission proposal

Ane Aranguiz, PhD Candidate, University of Antwerp

On 16 April 2019 the Commission launched the discussion on how to render decision-making process at EU level more efficient in the social field by activating the passerelle clauses and moving from unanimity to qualified majority voting (QMV) and from special to ordinary legislative procedure without undergoing an unwieldly process of Treaty reforms – although a unanimous vote of Member States is still necessary to approve this change.

The passerelle clauses are part of a number of ‘flexibility mechanisms’ introduced by the Lisbon Treaty that allow to simplify the decision-making process thereby enabling a more efficient exercise of EU competences where special legislative procedure and unanimity are maintained. The Lisbon Treaty provides for a general passerelle clause enshrined in Article 48(7) TEU that is applicable to all policy areas -with the exception of military or defence-related decisions-, as well as specific passerelle clauses that apply only in certain policy areas, namely, Article 32(3) TEU on Common Foreign and Security Policy, Article 82(3) TFEU on judicial cooperation in civil matters, Article 153(2) TFEU on social policy,  Article 192(2) TFEU on environmental policy and Article 312(2) TFEU on the Multiannual Financial Framework.

Background

This Communication is the last of a series of four aiming at reviewing the passerelle clauses provided for the EU Treaties as envisioned by President Juncker in his 2018 State of the Union address. In September 2018, the Commission presented the first proposal on common foreign and security policy, followed by a communication in January 2019 on taxation. In April 2019, the Commission presented the last two proposals first on energy and climate and later on social policy. (None of these proposals has been followed up by the Member States yet).

In social policy, most areas where the EU has competence to act are already subject to QMV and ordinary legislative procedure, which has allowed for an expansion of the social acquis at the EU level over the years. Yet, a reduced but significant number of areas of social policy still require unanimity among EU Member States and a special legislative procedure. These areas include measures relating to the protection against dismissal, social representation and defence of workers’ and employer’s interests, conditions of employment for third-country legal residents, non-discrimination (based on gender, racial or ethnic origin, religion or belief, disability, age, and sexual orientation) and social security and social protection for workers outside cross-border situations.

The specific passerelle clause under Article 153(2) would allow for the transition of the first three areas, whereas the general passerelle could further be applied to the latter two. Differences remain between the general and specific passerelle clauses regarding the procedural requirements for their activation. In order to activate the general clause, the European Council has to take the initiative and indicate the precise envisaged change in the decision-making procedure and notify national parliaments, which have up to six months to object to the proposal. After that, the European Council may, by unanimity and once consent by the European Parliament has been obtained, adopt the decision authorising the Council to act by QMV or enabling the adoption of the corresponding measures by ordinary legislative procedure. This procedure allows also for the half-way activation of the clause where they move from unanimity to QMV while maintaining the special legislative procedure. The activation of the specific passerelle clause, differently, is ‘only’ subject to unanimous agreement in the Council on the basis of a proposal by the Commission and after consultation with the Parliament.

According to the Commission, other than the fact that these policy areas might have major implications on the financial equilibrium of the national welfare systems, a limitation specifically provided for in Article 153(4)TFEU, there is seemingly no logical reasons that explain why these fields remain subject to unanimity and special legislative procedure. Consequently, in December 2018 the Commission presented its roadmap for the proposal for more efficient law-making in social policy and opened the feedback period that collected 27 opinions from different stakeholders.

The Communication

The Communication opens the debate on the enhanced use of QMV and ordinary legislative procedure with the aim of rendering the decision-making process more timely, flexible and efficient.

The Communication emphasizes that while the activation of the passerelle clause would change the decision-making method, it would not alter the overall EU legal framework and earmarked that EU measures are still subject to the principles of subsidiarity and proportionality, the limitations under the social policy title Article 153 TFEU regarding, inter alia, defining fundamental principles of social security or the specifically excluded areas of the right to association, the right to strike and the right to impose lockouts.

Further in the Communication, the Commission discusses the possibility of activating the passerelle clause in the five areas where unanimity and special legislative procedure is still required. Yet, the Commission concludes that only in two out of the five areas the activation of the would passerelle clause have an added value. Firstly, the Commission argues in favour of the use of the passerelle clause in the field of non-discrimination to facilitate equal protection against discrimination that guarantees an effective redress mechanism for all. Particularly, the Commission states that while there is certain level of protection for gender and racial discrimination in employment, equal treatment on the grounds of belief, disability, age and sexual orientation remains protected only in employment and occupation. The Commission considers necessary to address the inconsistent and incoherent EU legal framework where some individuals are better protected than others. (Note that a Commission proposal in this field from 2008 has not yet been agreed).

The Commission also sees suitable to activate the general passerelle clause with regard to social security and social protection of workers for the adoption of recommendations in the near future. The Commission here recalls the recently politically agreed recommendation on access to social protection for workers and the self-employed which is still pending for final adoption, and considers that a more effective decision-making process is desired to support the process of modernisation and convergence of national social protection systems.

Nevertheless, as for the other three fields where unanimity and special legislative procedure is required, namely, protection against dismissals, employment conditions of third-country nationals and the representation and collective defence of the interests of workers and employers, the Commission does not see fit to activate the passerelle clause due to either the limitations envisioned in the Treaty, the sufficiency of the existing legislation or the strong links and diversity between national social protection systems.

Commentary

The proposal put forward by the Commission should be given a cautious welcome. From a positive standpoint, the fact that most of social policy fields where the EU has competence require QMV and unanimity is required only in few domains leads to an uneven a fragmented development of the social acquis. Moving from unanimity to QMV in those limited areas allows for a swiftly and effective policy response in all areas of EU law and prevents one single Member State from vetoing social initiatives while still requiring a high degree of consensus. Secondly, transitioning to an ordinary legislative procedure allows for highlighting the role of the European Parliaments as a co-decision making. While the special legislative procedure relegates the role of the European Parliament to the subordinated position of a mere consultant, in ordinary legislative procedures the European Parliament becomes an equal to the Council and allows for a more democratic decision-making process where the direct beneficiaries are being represented. The activation of passerelle clauses in the social field would therefore not only avoid blockage by a single Member State, but also give the European Parliament a real co-legislator role. Considering the obstacles faced in the adoption of social policy legal instruments due to the lack of consensus in the Council, an active involvement of the usually more socially progressive European Parliament, is likely to free the decision-making process in social matters to a certain extent.

Yet, there are a number of points of concern. To begin with, the activation of the passerelle clause is only envisioned for two out of the five social policy areas that still require unanimity and the special legislative procedure. Moreover, these are the exact same two that cannot rely on the special passerelle clause under Article 153(2) but must be based on the general provision under Article 48(7) which, in turn, requires a much stricter procedural formula. On top of this, one of the two fields, namely social security and social protection of workers, is only contemplated with regard to the adoption of recommendations, thus disregarding the possibility to adopt binding instruments. This is particularly striking when considering the challenges faced recently by the Commission in the formulation of a measure for access to social protection of workers and self-employed, where the Commission inclined for a proposal for a recommendation due to the lack of political support to adopt a binding instrument by Member States.

The activation of the passerelle clause is clearly a positive development, yet, the fact that this is such a limited activation is highly regrettable. Continued fragmentation on social policy may moreover lead to the use of enhanced cooperation, where Member States might separately agree on social policy instruments for higher protection of their citizens. Yet, this will unquestionably result in a two-speed Europe between those Members within and out the enhanced cooperation framework.

The dynamism of the Commission in the context of the European Pillar of Social Rights provides the perfect platform to keep adapting, updating and adopting new social legislation at the EU level thus aligning EU law with the social priorities identified by Juncker’s Commission. If, and this is a big if, the discussion opened by the Commission leads to activating the passerelle clause (even if only limitedly), it will in all likelihood lead to new proposals by the Commission tackling non-discrimination in a more comprehensive manner that could be adopted in a more efficient manner. However, this will fundamentally depend on whether or not the next Commission resumes the enthusiastic social activism of the Juncker delegation.

Yet, if the Pillar is indeed the last chance for social Europe that many have claimed, this initiative represents a missed opportunity to render effectiveness in the decision-making process in social policy by closing the door to facilitating measures tackling clear gaps on the current EU legislation, most clearly with regard to protection against dismissals. It is equally regrettable the choice to limit the use of the passerelle clause to adopt a binding unified response to the inadequacies of our current social protection systems. In times of increased Euroscepticism and rising non-standard forms of employment, providing a response to concrete needs of citizens remains an imperative for future-proving the EU, therefore, it is in the best interest of the same to remove any obstructions of the use of Union competences that allow to move closer to an actual social market economy. At the very least, this initiative embodies the intention to partially unclog the ‘way’ when there is certain degree of ‘will’.

Barnard & Peers: chapter 20

Photo credit: The Independent

A Tale of Two Organs: Hate Speech Regulation in the European Context

Clotilde Pégorier, Lecturer in Law, University of Essex

The issue of hate speech regulation has again moved in recent years to the forefront of legal and political debate in Europe. To note that questions in this area are complex, and often generate diverging opinions as to the appropriate balance between legislation and the protection of rights, is no novelty. What is striking, however, is the marked difference in the tendencies of those “natural born twins” (Gabriel Toggenburg), the EU and the Council of Europe, in their respective approaches to hate speech. How might this be explained? And what, crucially, might be the wider legislative implications at European level?

The EU and the Fight Against Online Hate Speech

First, let us consider the EU’s efforts in this context, which might here be exemplified in relation to the battle against online hate speech. In response to the problem and threat of terrorism and radicalisation, and prompted in particular by the attack in Brussels on 22 March 2016, the EU decided to intensify its work on fighting hate speech – a campaign upon which they had embarked some eight years earlier with the adoption of the Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law. As part of its security agenda for the period 2015-2020, the Commission presented, on 14 June 2016, a communication outlining action in seven specific areas where cooperation at EU level could effectively support Member States in preventing and countering radicalisation. Alert to the ever greater role played by the internet in the dissemination of views and ideologies, the European Commission took the step of consulting IT companies with the intention of creating legislation designed to inhibit the online spread of illegal content inciting violence.

In pursuing such an initiative, the Commission was, in fact, expanding upon longer-standing awareness of the importance of preventing the spread of hate speech via media forms. As Advocate General Yves Bot concluded in his Opinion from 5 May 2011 with respect to the cases C-244/10 and C-245/10:

Member states are to ensure that television broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality, must be interpreted as also prohibiting broadcasts which, in attempting to justify a group classify as a ‘terrorist’ organisation by the European Union, may create reactions of animosity or rejection between communities of different ethnic or cultural origin (para 93).

In May 2016, the European Commission had, moreover, already signed an online Code of Conduct on countering illegal hate speech online with four of the biggest internet companies – namely, Twitter, Facebook, YouTube and Microsoft. The code is not legally binding yet would appear to indicate a willingness on the part of the named IT companies to support the EU’s drive to prevent online hate – a willingness that owes in some measure, no doubt, to the protections supplied by Articles 12 to 14 of the e-Commerce Directive of 8 June 2000, commonly known as the ‘safe harbour’ provisions. According to Article 12, the provider of a service cannot be held liable for any information it transmits – including hate speech – as long as it: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission. Article 14 limits the liability of providers of “information society services” still further when such services consist only of the “storage of information” provided by a recipient of the services. This provision only applies where the provider does not control or have knowledge of the illegal activity or information; or having gained knowledge or awareness of such illegal activity expeditiously removes or disables the links to the activity.

However we speculate on the primary motives of the IT companies, of prime significance is that they are assisting the EU in its fight against online hate speech. The Code encourages social media companies to take quick action as soon as a valid notification of online hate speech has been received, e.g. by removing or disabling access. It also underlines that, in order to combat the spread of illegal hate speech, “it is essential to ensure that relevant national laws transposing the Council Framework Decision 2008/913/JHA are fully enforced by Member States in the online as well as the in the offline environment.” With the adoption of the Council Framework Decision, the EU considered that Member states were permitted to enact criminal sanctions against anyone:

publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group.

Reading such provisions takes us to the heart of one of the key dilemmas at the core of current debates on hate speech – namely, the definition and understanding of the concept itself. A brief excursus on this point seems warranted here. For the question of definition remains somewhat thorny – hate speech is a term that is, at once, both over- and underdetermined. As Anne Weber puts it in her Manual on Hate Speech for the Council of Europe in 2009:

No universally accepted definition of the term “hate speech” exists, despite its frequent usage. Though most States have adopted legislation banning expressions amounting to “hate speech”, definitions differ slightly when determining what is being banned.

This is undeniably true. Yet there are international and national sources that provide useful guidance. The Council of Europe’s Committee of Ministers’ Recommendation 97(20) on “Hate Speech” defined it as follows:

[T]he term “hate speech” shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.

Also relevant here are the provisions of Art. 20, para. 2 of the International Covenant on Civil and Political Rights (ICPPR) of 1966, which stipulate that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” An authoritative interpretation of Art. 20, para. 2 is supplied by General Comment No. 34 by the Human Rights Committee, which reads:

What distinguishes the acts addressed in article 20 from other acts that may also be subject to limitations, is that for the acts addressed in article 20, the Covenant indicates the specific response required from the State: their prohibition by law. It is only to this extent that article 20 may be considered as lex specialis with regard to article 19 [which establishes other limitations on freedom of expression]. The acts referred to in article 20, paragraph 2, must cumulatively (a) advocate, (b) be for purposes of national, racial or religious hatred, and, (c) constitute incitement to discrimination, hostility or violence. By “advocacy” is meant public forms of expression that are intended to elicit action or response. By “hatred” is meant intense emotions of opprobrium, enmity and detestation towards a target group. “Incitement” refers to the need for the advocacy to be likely to trigger imminent acts of discrimination, hostility or violence. It would be sufficient that the incitement relate to any one of the three outcomes: discrimination, hostility or violence (para. 51).

This interpretation provides perhaps the fullest, and most useful, elucidation of hate speech – one that does most to capture its particular power to harm. Read in conjunction with modern understandings of the potential of online media to contribute to the dissemination of political views, and to generate and spread ‘hatred’, it casts particularly sharp light, moreover, on how, by enlisting the support of IT companies, the EU is taking a progressive – and legitimate – stand in trying to confront modern hate speech in one of its most threatening forms. 

The Council of Europe: The Protection of Freedom of Expression Over the Fight against (Online) Hate Speech?

The situation is somewhat different, however, in the case of the other main European organ, the Council of Europe, which appears to be taking a much more cautious approach. A latest manifestation of this has been in the Perinçek case, for instance, where the European Court of Human Rights (ECtHR) decided, on 15 October 2015, that Switzerland’s criminalisation of Doğu Perinçek for genocide denial constituted a violation of Article 10 of the European Convention on Human Rights (ECHR). The Court finding here was that the restriction on freedom of expression imposed by the Swiss authorities was not proportionate.

This is but the latest sign of a divergence in the attitudes and response from two European organs to the issue of hate speech, reflecting a breach within Europe with regards to the status of hate speech in relation to freedom of expression, the latter itself a fundamental notion of both the ECHR and the Charter of Fundamental Rights of the European Union (Article 11).

The prevention and prohibition of online hate speech has been on the agenda of the Council of Europe since at least 2001, when the Convention on Cybercrime was adopted. In 2003, an Additional Protocol concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems was adopted. According to this Additional Protocol:

1. Each Party shall adopt such legislative measures as may be necessary to establish the following conduct as criminal offences under its domestic law, when committed intentionally and without right: distributing or otherwise making available, through a computer system to the public, material which denies, grossly minimises, approves or justifies acts constituting genocide or crimes against humanity, as defined by international law and recognised as such by final and binding decisions of the International Military Tribunal, established by the London Agreement of 8 August 1945, or of any other international court established by relevant international instruments and whose jurisdiction is recognised by that Party. […]

In June 2016, however, at the same time that the EU Code of Conduct was adopted, the Council of Europe Secretary General, concerned about internet censorship, decided that rules for blocking and removing illegal content must be transparent and proportionate. This opinion came after his report on the state of democracy, human rights and the rule of law, based on a study conducted by the Swiss Institute of Comparative Law and identifying a number of shortcomings in some states,  became public.

In the report, the Secretary General clearly stated that:

In the majority of member states, the legal framework on blocking, filtering and removal of Internet content meets the requirements of being prescribed by law, pursuing legitimate aims and being necessary in a democratic society, in accordance with Article 10 of the Convention. Exceptions remain however, notably with regard to laws regulating hate speech and counter-terrorism (p. 33).

In view of this, one can understand why the Grand Chamber of ECtHR decided in the Perinçek case that the Swiss criminal provision was disproportionate and did not fulfil the criteria of being necessary in a democratic society. Yet Art. 261bis of the Swiss penal code provides that ‘any person who publicly denigrates or discriminates against another or a group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether verbally, in writing or pictorially, by using gestures, through acts of aggression or by other means, or any person who on any of these grounds denies, trivialises or seeks justification for genocide or other crimes against humanity, […] is liable to a custodial sentence not exceeding three years or to a monetary penalty’. It is difficult to see how a criminal law could be much more transparent or clearer here. The decision to uphold Perinçek’s claim to a violation of Art. 10 ECHR certainly delivered a blow to the fight against hate speech at the EU level – as was duly noted by judges Spielmann (president of the Grand Chamber), Casadevall, Berro, De Gaetano, Sicilianos, Silvis and Kūris, in their joint dissenting opinion:

With regard to the finding that there was no obligation on Switzerland to criminalise the applicant’s statements (see paragraphs 258-68), we confess to having serious doubts as to the relevance of the reasoning. Can it not be maintained, on the contrary, that a (regional) custom is gradually emerging through the practice of States, the European Union (Framework Decision 2008/913/JHA) or ECRI (Policy Recommendation no. 7)? We would also note that beyond Europe, the United Nations Committee on the Elimination of Racial Discrimination has repeatedly recommended criminalising negationist discourse. Can all these developments be disregarded at a stroke by examining the case in terms of an alleged conflict of obligations? (para 10)

It thus seems that the Council of Europe is taking a retrogressive step in the fight against hate speech – both offline and online – as the laws in place regulating hate speech do not appear to be in line with the ECHR. The approach of the Council also lies in opposition to that being taken by the EU, rendering the position of EU members difficult: should they criminalise online hate speech, or should they rather grant greater weight to Art. 10 ECHR? Indeed, what if Switzerland was an EU member? By criminalising genocide denial as a form of hate speech liable to incite violence, as it initially did in the Perinçek case, Switzerland complied with the Framework Council decision. In so doing, however, it contravened Art. 10 of the ECHR and was thus found guilty of a violation by the ECtHR.

Conclusion

The question of how to square the protection of freedom of expression with the imposition of criminal sanctions for hate speech is, doubtless, one which is difficult. Yet wherever one draws the line between acceptable and unacceptable limits on freedom of expression, it seems apparent that, at the European level, the EU and the Council of Europe should be working together much more coherently in attempting to confront the issue of online (and offline) hate speech.  

To this end, the Council of Europe should liaise more closely with the EU – not least as the Secretary General, in his 2016 report, commented that:

-In addition to calling on member states to implement in full the recommendations in this report, I urge them to make clear their commitment to the European Convention on Human Rights and the Strasbourg Court. Our Convention system can never be taken for granted: it depends on the active and constructive engagement of all governments. By embedding these fundamental freedoms into the legal, political and social fabric of their nations, Europe’s leaders can build democracies which are more open and inclusive and, as a result, more secure (p.5)

In order to facilitate a more consistent approach across Europe, it seems clear that the European Court of Human Rights itself has to be prepared to allow for greater restrictions to be placed on freedom of expression, precisely as noted by the judges in their dissenting opinion in the Perinçek case. As long as the Strasbourg Court continues to permit freedom of expression to be used as a catch-all defence, it will remain extremely difficult to combat online hate speech and to develop a common European standard. Two measures thus seem necessary. Firstly, a common understanding of what hate speech is and entails should be striven for – the interpretation supplied by General Comment No. 34 by the Human Rights Committee provides useful initial orientation, not least in the manner that it explicates key notions of ‘incitement’ and ‘hatred’, and in the way that it outlines the possible effects of hate speech beyond physical violence. Secondly, there needs to be common agreement on the way in which such forms threaten democratic values – how they violate ‘the respect of the rights or reputations of others’ and may imperil ‘national security’, ‘public order’, or ‘public health or morals’, and thus constitute a legitimate restriction on freedom of expression provisions.

Barnard & Peers: chapter 9

JHA4: chapter II:6

Photo credit: European Centre for Press and Media Freedom

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

Rights, remedies and state immunity: the Court of Appeal judgment in Benkharbouche and Janah

Steve Peers

Yesterday’s important judgment in Benkharbouche v Sudan and Janah v Libya by the Court of Appeal raised important issues of public international law, the ECHR and the EU Charter of Fundamental Rights, and demonstrated the relationship between them in the current state of the British constitution. The case involved two domestic workers bringing employment law complaints against the respective embassies of Sudan and Libya, which responded to the complaints by claiming state immunity, based on a UK Act of Parliament (the State Immunity Act) which transposes a Council of Europe Convention on that issue.

The question is whether invoking state immunity for these employment claims amounted to a breach of human rights law, given that Article 6 of the ECHR (the right to a fair trial) guarantees access to the courts, according to the case law of the European Court of Human Rights (ECtHR). In turn, this raised issues of EU law, given that Article 47 of the EU Charter of Fundamental Rights likewise guarantees the right to a fair trial, and some of the claims concerned EU law issues (the race discrimination and working time Directives). (Other claims, such as for ordinary wages and unfair dismissal, were not linked to EU law). The two cases didn't concern human trafficking or modern slavery, although sometimes embassies are involved in such disputes too. But they would be relevant by analogy to such disputes, and there would also be a link to EU law in such cases, since there is an EU Directive banning human trafficking, which the UK has opted in to. 

The Court of Appeal, essentially following the prior judgment of the Employment Appeal Tribunal, made a careful study of recent ECtHR case law, concluding that state immunity could no longer be invoked against all employment law claims, but only against those claims concerning core embassy staff. This could not apply to domestic workers; Ms. Janah’s tasks did not involve (for instance) shooting any British policewomen.

But what was the remedy for this breach of human rights principles? At lower levels, the tribunals had been powerless to rule on the claims for breach of the ECHR, since the UK’s Human Rights Act awards the power to issue a ‘declaration of incompatibility’ that an Act of Parliament breaches the ECHR to higher courts only. So the Court of Appeal was the first court that could issue such a declaration, and it did so in this case. (The Court concluded that it could not ‘read down’ the relevant clauses in the State Immunity Act to interpret them consistently with the ECHR).

However, as compared to the effect of EU law, even a declaration of incompatibility with the ECHR is relatively weak, given that the potential remedy for a breach of EU law is the disapplication of national law, even Acts of Parliament if necessary, by the national courts. So the Court of Appeal also ruled that the relevant provisions of the State Immunity Act had to be disapplied, to the extent that they were applied as a barrier to the claims based on EU law. On this point, the Court was following the Employment Appeal Tribunal, which had also ruled to disapply the Act, given that any level of national court or tribunal has the power to disapply an act of parliament if necessary to give effect to EU law.

If I had a pound for every law student who has confused the remedies in UK law for the breach of EU law with the remedies for the breach of the ECHR, I would be very rich indeed. Fortunately, the facts of this case easily demonstrate the distinction between them. Only the higher courts could even contemplate issuing a declaration of incompatibility with the ECHR; and the remedy of disapplication of the Act of Parliament is obviously stronger than the declaration of incompatibility, allowing the case to proceed on the merits (as far as it relates to EU law) rather than having to wait for Parliament to change the law in order to do so. And equally, the case shows the importance of the requirement that a case has to be linked to EU law in order for the Charter to apply: only the race discrimination and working time claims benefit from the disapplication of provisions of the Act of Parliament, and so only those claims can proceed to court as things stand.

From an EU law perspective, the most interesting point examined by the Court of Appeal was the application of the ‘horizontal direct effect’ of Charter rights, ie the application of EU law against private parties (since non-EU States aren’t bound by EU law as States, the court assimilated them to private parties). In its judgment last year in AMS (discussed here), the CJEU distinguished between those Charter rights which could give rise to a challenge against national law based on the principle of supremacy of EU law, and those Charter rights which could not, since they were too imprecise to base a free-standing Charter claim upon. The right to non-discrimination on grounds of age fell within the former category, whereas the right of workers to be consulted and informed fell within the latter category. (Note that the CJEU case law classifies this as an application of the principle of supremacy, not horizontal direct effect, although the final outcome is the same no matter how the principle is classified, at least in cases like these).

The Court of Appeal reaches the conclusion that Article 47 of the Charter is also a provision which is precise enough to be used to challenge national legislation. That’s an important point, since Article 47 is a far-reaching and frequently invoked provision, and applies not just to state immunity issues but to many broader issues concerning access to the courts (including legal aid) and effective remedies.  For that reason, this judgment is an important precedent for national courts across the European Union faced with challenges to national laws based on Article 47 of the Charter, although of course it doesn’t formally bind any court besides the lower courts of England and Wales.

The Court didn’t need to rule on whether the substantive Charter rights raised by these cases would have the effect of disapplying national law, since it wasn’t ruling on the merits of the cases, but only on the issue of access to court. If it were ruling on the substantive issues, it would seem obvious that race discrimination claims have the same strong legal effect as age discrimination claims, as both claims are based on the same provision of the Charter (Article 21). However, claims based on breach of Article 31 of the Charter (the working time provision) might not have that strong legal effect. Indeed, an Advocate-General’s opinion in the pending case of Fennoll has concluded as much.

Furthermore, the social rights in the Charter (such as the rights set out in Article 31) are subject to a special rule in the Protocol to the EU Treaties which attempts to limit the effect of the Charter in the UK and Poland. The CJEU ruled in its NS judgment that this Protocol does not generally disapply the Charter in the UK, but it did not then rule if the Protocol might nonetheless affect the enforceability of social rights. Given that yesterday’s judgment was about Article 47 of the Charter, not about a substantive social right, it was not necessary for the Court of Appeal to grasp this nettle either.

Barnard & Peers: chapter 9, chapter 20

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