It is tempting to forget that all of the law on employment equality, and at least some of the law on equality in the provision of goods and services, is governed by EU Directives.

One difficulty is that there have been relatively few cases before the Court of Justice of the EU since the enactment of Race and Ethnic Origin Directive and the Framework Employment Equality Directive both in 2000. So, a recent judgment of the Court of Justice is bound to be of interest.

Attendees at the Equality Law Update in 2012 might remember an invitation to keep an eye on an apparently obscure Bulgarian case before the Court, C-394/11, Valeri Hariev Belov, which concerned the question of whether the placing of electricity meters six or seven metres above the ground in Roma-dominated areas, as opposed to 1.7 metres above the ground in other areas, could be in contravention of the Race Directive, which, unlike the Framework Directive, also covers the provision of goods and services.

In the end, the Court decided that the Bulgarian equality body, which made the preliminary reference to the Court, was not a ‘court or tribunal’ for the purposes to preliminary references to the Court.

Nevertheless, a virtually identical case, CHEZ Razpredelenie Bulgaria, has now been decided, setting out significant findings on the principles of direct and indirect discrimination in EU law.

Direct Discrimination

On direct discrimination, the Court has given contradictory signals. On the one hand, it is saying that a measure can be directly discriminatory even if it is applied to an area which is made up predominantly, and not exclusively, of members of a group of a particular ethic origin.

At one stage, the Court applies a test of whether “that ethnic origin determined the decision to impose the treatment”. On the other hand, it appears, in its Conclusions, to apply an even wider test, namely a measure can be directly discriminatory “if that measure proves to have been introduced and/or maintained for reasons relating to the ethnic origin common to most of the inhabitants of the district concerned”.

The term ‘related to’ is used in the EU definition of harassment (and is used in the Equality Act 2010 but not yet the unreformed equality law in Northern Ireland). It has always been considered to be wider than the ‘on grounds of’ test in the direct discrimination definition but the Court appears here to be equating the two.

The Court also applied its judgment in C‑303/06, Coleman, to conclude that the applicant, although not herself of Roma origin, could still suffer direct discrimination in these circumstances.

Indirect Discrimination

The Court then went on consider the indirect discrimination principle. A few points are of note. While direct discrimination requires ‘less favourable treatment’, indirect discrimination requires a ‘particular disadvantage’.

On the one hand, the Court makes clear that the ‘seriousness’ of the disadvantage is irrelevant. On the other, it still appears to be wedded to a largely quantitative test of whether the measure adversely affected a significant number of those of Roma origin. However, there are some indications that the Court is aware that other factors, such as qualitative data and other evidence, may be relevant in this appraisal.

Legitimates Aim and Appropriate & Necessary Measures

On whether the electricity supply company had a ‘legitimate aim’, the Court insisted that evidence must be produced to back up such a claim.

On whether the measures were ‘appropriate and necessary’, the Court reinforced the principle that mitigation and alternatives are necessary, “either that other appropriate and less restrictive means enabling those aims to be achieved exist”.

Finally, the Court made clear that it is necessary to weigh up the extent of the disadvantage against the justifications put forward, “that that measure prejudices excessively the legitimate interest of the final consumers of electricity inhabiting the district concerned”.

At this year’s Equality Law Update, it is intended to examine the CHEZ judgment against recent case law on direct and indirect discrimination, along with case studies on the practical implications of the judgment.

http://www.bailii.org/eu/cases/EUECJ/2015/C8314.html