Racial Discrimination & Collateral Impairment – Coleman Revisited

 

Simon Cox

In Grand Duchy of Luxembourg yesterday, the Court of Justice Grand Chamber heard arguments that whatever somebody who suffers adverse consequences of a racially discriminatory conclusion is entitled to a remedy nether European Union law. In a example of anti-Roma discrimination brought yesteryear a non-Roma woman, the Court was asked to clarify its Coleman ruling, concerning who has the capacity to invoke European Union discrimination law. Detailed questions from the Court showed a closed involvement inwards the legal as well as practical issues.

Case C-83/14 CEZ is a preliminary reference of x questions nether the European Union Directive 2000/43 on race discrimination. The example comes from the Sofia Administrative Court, inwards an appeal yesteryear CEZ, 1 of Bulgaria’s iii electricity companies, from a conclusion of the Bulgarian National Anti-Discrimination Commission. This committee had a electrical load from Ms Nikolova that CEZ unlawfully discriminated against her yesteryear putting the meter for the legal furnish of electricity to her grocery store on the top of a vii metre high pole. CEZ had non singled Ms Nikolova out for this treatment. They had done this to every meter inwards the district of Gizdova, but nowhere else inwards 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 every bit a predominantly ‘Roma’ area, she complained that the district had been chosen for that ground yesteryear CEZ. The committee had received numerous such complaints that entirely Roma districts were subjected to beingness publicly stigmatised every bit besides dishonest to get got access to meters. Armed alongside fabric that CEZ had cited Roma ethnicity every bit a constituent for its decision, the Anti-Discrimination Commission agreed alongside Ms Nikolova as well as upheld her case. In her case to the CJEU she pressed for an expansive reading of European Union anti-discrimination law.

This is the CJEU’s outset chance to dominion on the application of the Race Equality Directive to the Roma, Europe’s about disadvantaged minority. Influenza A virus subtype H5N1 previous reference to the Court on like issues (Belov) was inadmissible, although the Advocate-General’s opinion had considered the gist of the issues.

Yesterday, the CJEU Grand Chamber heard declaration from CEZ, Ms Nikolova, the Bulgarian Government as well as the European Commission.

The fundamental number on which the parties divided was the extent of protection nether the Directive. Ms Nikolova argued - every bit 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 beginning of the victims. The role of this police is to eliminate all such discrimination: it does non require the victims or the complainant to get got the same race or ethnic beginning every bit the footing for a discriminatory decision. The Commission agreed, pointing to para l of the CJEU’s judgment inwards C-303/06 Coleman where discrimination ‘based on disability’ nether Directive 2000/78 was flora to include adverse activity against an employee on concern human relationship of her disabled son.

Counsel for CEZ argued that Coleman was a example of discrimination ‘by association’. Directive 2000/43 allows leeway to states to define this term. Ms Nikolova’s store inwards Gizdova is non the link to Roma beginning required yesteryear Bulgarian law. The example was unlike from Coleman. The Bulgarian Government agreed.

Judge Prechal, rapporteur inwards the case, invited Nikolova’s comment on she called the ‘restrictive’ Bulgarian definition. Nikolova took a maximalist position: ‘based on’ covers whatever adverse conclusion where actual, apparent or perceived beginning was inwards fact taken into concern human relationship yesteryear the decision-maker. Only this agency could the Directive eliminate all racial discrimination.

Responding on the query of comparators, Nikolova argued that where entirely Roma neighbourhoods are subjected to adverse treatment, the burden of proof for at nowadays discrimination shifts nether Directive Article 8. Unless CEZ so attempt race was non taken into account, at that spot is no demand to consider a hypothetical comparator: at nowadays discrimination based on race had already been proved.

CEZ denied whatever racial motivation: the measures had been adopted due to the work of illegal connections to the electricity supply. Illegally constructed dwellings cannot legally live on connected so users connect illegally. The costs of changing meters would live on passed on to customers. No guess could determine whether a mensurate stigmatises Roma communities, since the notion is besides subjective.

Several judges questioned CEZ on their defence. Had CEZ considered adopting the smart meter solution of other Bulgarian companies? CEZ’s counsel was non familiar alongside the item but smart meters are expensive. Judge Rodin pressed CEZ:

Rodin: How does CEZ determine whose meters to give away of reach?

CEZ: Influenza A virus subtype H5N1 technical conclusion based on their engineers’ assessment.

Rodin: Do the engineers know the payment tape of individuals when they brand this assessment?

CEZ: No, they expect at the province of affairs of the district.

Rodin: Can the electricity consumer appeal?

CEZ: No.

Judge Borg Barthet weighed inwards yesteryear asking whether entirely Roma districts get got the meters on poles. CEZ’s Counsel didn’t know. Judge Lenaerts said he would croak inwards easier:

Lenaerts: Does this come about inwards many districts?

CEZ: Define “many”.

Lenaerts: In how many districts get got you lot 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 reply to the other parties, he declined.

Nikolova’s counsel replied asking for guidance to the national courtroom on indirect discrimination. The comparator is other districts of Dupnitsa. Differences of illegal connexion rates are relevant entirely to the objective justification stage. They are non relevant to the query of comparator, since that would forbid the Directive addressing grossly disparate consequences inwards treatment. CEZ say race was no constituent inwards their conclusion but claim their relevant records get got been destroyed. CEZ claim’s costs of modify would live on besides high, but has non assessed them. CEZ confirm their exercise is both compulsory - no appeal - as well as collective – applied to the whole district, non example yesteryear case. CEZ demand flexibility but deny that to Ms Nikolova. She cannot disprove Blue Planet sign that she is an illegal connector.

Advocate-General Kokott’s persuasion volition live on issued 12 March.

The hearing began inwards the linguistic communication of the case: Bulgarian. The CJEU President had refused Ms Nikolova’s asking to plead inwards English linguistic communication every bit the linguistic communication of her English linguistic communication atomic number 82 counsel.  His co-counsel of the Sofia Bar thence opened inwards Bulgarian. When questions began, Judge Lenaerts invited Ms Nikolova’s squad to reply inwards English: as well as her English linguistic communication counsel pleaded the residue of her case.

Ms Nikolova is represented yesteryear the Open Society Justice Initiative through Simon Cox of the Bar of England as well as Wales, Yonko Grozev of the Sofia Bar, as well as Maxim Ferschtman of the Amsterdam Bar.

 

Barnard & Peers: chapter 20

Photo: Bjorn Steinz, for the Open Society Foundation

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