When All The People Inwards A District Are Victims Of Race Discrimination: Cjeu Ruling Inwards Chez 5 Nikolova

Simon Cox, lawyer at the Open Society Justice Initiative* 

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

The instance is a keen instance of how the CJEU tin empower lower national courts. The Bulgarian Anti-Discrimination Commission had repeatedly condemned every bit discriminatory the practise of electricity fellowship CHEZ (aka CEZ) of placing meters out of achieve of consumers alone inward Roma districts. But CHEZ – a powerful fellowship inward Republic of Bulgaria in addition to Czechia - had persuaded the Supreme Court to contrary these rulings. To learn over the caput of the Supreme Court, the Anti-Discrimination Commission referred questions to the CJEU inward Belov. But the CJEU ruled the Commission was non a courtroom in addition to rejected the reference every bit inadmissible. So the Sofia Administrative Court used the Nikolova instance – an appeal past times CHEZ already earlier it – to refer similar questions. This led to CHEZ judgment, inward which the CJEU – though charged alone alongside interpreting the police – helps the national courtroom alongside a clear evidential in addition to factual path to draft a judgment to last farther appeal.

Ms Nikolova is non Roma. Two arguments were made against her because of this. First, that a practise affecting a district could alone live indirectly discriminatory on grounds of ethnic beginning if everyone inward the district had that ethnic origin. Second, that Ms Nikolova could non complain of discrimination. CHEZ accepted that the thought of ‘discrimination past times association’ could extend the category of persons beyond those of Roma origin, but denied Ms Nikolova was sufficiently ‘associated’ alongside her Roma neighbours.

The Court rejected these arguments, ruling that the utilization of the Directive is to terminate discrimination on grounds of racial or ethnic origin, non alone to protect private members of groups who are targeted past times discrimination (para 56). Accepting Ms Nikolova’s arguments, the CJEU repeated the passage from paragraph 50 of Coleman affirming that in that place is discrimination against whatever somebody who, on draw concern human relationship of those grounds, suffers less favourable handling or a item disadvantage – regardless of the race or ethnic beginning of that person. So, if a mensurate against a district is based on grounds of the Roma beginning of the district’s majority, therefore the minority inward that district are also victims of that discriminatory measure.

Through this approach, the CJEU affirms that the regulation of equal handling empowers every affected private – in addition to the courts - to terminate discrimination past times all available means, urgently in addition to effectively. Simplifying the police strengthens the mightiness of oppressed communities to fight discrimination. Challenges volition sure enough perish on to live made predominantly past times people alongside the race or ethnicity on which the discrimination is based. But the courtroom defeats CHEZ’s effort to require that applicants ‘prove’ their ain ethnicity in addition to limits the inquiry to whether in that place is discrimination in addition to if therefore whether this discrimination affects the claimant.

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

The courtroom made a fundamentally of import ruling on indirect discrimination: this requires whatever mensurate disadvantaging a Roma bulk district which is non applied to non-Roma bulk districts to live objectively justified. CHEZ wanted a narrow interpretation of the comparator district, arguing that Ms Nikolova’s district could alone live compared to districts alongside similar levels of interference alongside electricity meters. The Court rejected this, ruling that the appropriate comparators are other urban districts provided alongside electricity past times CHEZ (para 90).

These rulings on ‘district discrimination’ are real powerful tools. Politically weak communities may live treated badly past times regime or draw concern inward areas similar transport, power, schooling in addition to other amenities. Where this differential handling follows differences inward ethnic make-up of districts, therefore groups or individuals inward the district tin utilization the ruling to select discrimination claims. Courts tin monastic tell disclosure of documents, to meet if race was a constituent inward decision-making, every bit the CJEU affirmed at paragraph 78. Where it was non a factor, the CJEU ruling on comparators way authorities must exhibit that the objective differences betwixt the districts justify the differential treatment. They may struggle to justify denial of carry provision or electricity connection, or extortionate insurance or service charges.

The finally of import slice of the judgment is justification. The Court ruled that, fifty-fifty if race was no constituent inward CHEZ’s decisions, the practise was seen past times others every bit effectively labelling a Roma community every bit electricity thieves, regardless of their payment history in addition to behavior. In the context of anti-Roma stereotypes, the mensurate was seriously harmful. Agreeing alongside Ms Nikolova, the Court ruled that such a practise is incapable of justification. The community has a correct nether European Union police to savor access to electricity “in weather which are non of an offensive or stigmatising nature in addition to which enable them to monitor their electricity consumption regularly”: para 128.

What happened to the notion of ‘discrimination past times association’? The CJEU accepted Ms Nikolova’s declaration that this is non business office of European Union law. It was the label attached past times practitioners in addition to academics to the Coleman judgment, but non 1 the Court had adopted. Like paragraph 50 of Coleman, which the courtroom cites, the Nikolova judgment makes no lift of ‘by association’.  Dee Masters in addition to Siȃn McKinley own got argued that this approach makes indirect discrimination unworkable inward sure situations. H5N1 coach reservation fee bears to a greater extent than heavily on people whose disability gives ascent to a ask to live accompanied. The concept of ‘association’ is needed, they argue, to bound the course of teaching of potential claimants to persons needed to accompany the disabled person. But this scenario is dissimilar from Nikolova, where the mensurate applied alone to users inward the majority-Roma districts, thereby putting all those users at a disadvantage when compared alongside users inward a dissimilar district. In the coach scenario, the charging practise applies to all coach passengers. The differential disadvantage arises from the disability of the passenger, non their membership of the larger affected group. The rider alongside a disability tin complain close the negative impact of the fee for their topographic point in addition to that for the companion. Indeed, the companion may also struggle that the regulation of equal handling has been wronged every bit regards them. But a somebody who has neither a relevant disability nor is a companion of such a somebody is non affected past times a differential impact on grounds of anyone’s disability. Ms Nikolova was – she had a disadvantage compared to users inward non-Roma districts.

CHEZ has responded to the judgment past times pointing to recent deaths past times electrocution inward other parts of Republic of Bulgaria of people attempting to brand irregular connections: but it has non made meters inaccessible inward these districts. EVN, a dissimilar Bulgarian electricity provider, contradicted CHEZ’s concerns close electricity theft. In the majority-Roma district inward Stoliponovo – where EVN lay the meters at a normal marker to a greater extent than or less years agone - 95% of charges are paid. According to EVN, the existent occupation alongside electricity theft inward Republic of Bulgaria is professionals in addition to rich people running hotels, pubs in addition to ski resorts.

The instance at nowadays returns to the Sofia Administrative Court, where Ms Nikolova volition seek an order that CHEZ restore the meters to their normal pinnacle for all users inward her district.

*Simon Cox is a lawyer at the Open Society Justice Initiative in addition to represented Ms Nikolova earlier the CJEU. The Open Society Justice Initiative plant to brand police a to a greater extent than effective tool against racial discrimination.

Barnard & Peers: chapter 20 

Photo: Bjorn Steinz, Open Society Foundation

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