CHEZ Razpredelenie Bulgaria AD v. Komisia za zashtita ot diskriminatsia C-83/14

In answer to a preliminary reference from Bulgaria, The CJEU ruled discrimination based on ethnic origin can be indirect and not require obvious inequality. It applies regardless of who is affected. The case involved a non-Roma complainant against a company placing electricity meters out of reach in a mostly Roma district.

Facts 

A grocer in Dupnitsa, Bulgaria, not of Roma origin, complained that the electricity company, CHEZ RB, installed meters at a height of 6-7m in the predominantly Roma-inhabited 'Gizdova mahala' district, whereas in non-Roma areas meters were at 1.70m. She argued that the placement of the electricity meters at an unattainable height represented an act of direct discrimination. The Court of Sofia referred questions to the CJEU, and the company argued that the practice was justified due to unlawful connections and meter tampering but failed to provide evidence.  

Issues 

The issue concerns the scope and meaning of Directive 2000/43 on equal treatment regardless of race or ethnic origin. The respondent argued that the practice of installing electricity meters did not fall within the substantive scope of the directive. 

Directive 2000/43 Article 2 provides that:  

… (a)      direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin; 

(b)      indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. 

Reasoning  

The CJEU clarified aspects of Directive 2000/43 in the case of Ms Nikolova. The court made the following statements: 

1. Direct or indirect discrimination under Article 3(1) of the Directive does not require prejudice to rights or interests. 
2. Indirect discrimination may result from an apparently neutral measure, which need not have been adopted for reasons of racial or ethnic origin. 
3. ‘Particular disadvantage’ denotes that it is particularly persons of a given racial or ethnic origin who are at a disadvantage because of the provision, criterion or practice at issue, rather than a particularly serious case of inequality. 
4. ‘Discrimination on the grounds of ethnic origin’ applies to all affected individuals. The principle of equal treatment protects not only persons who are themselves a member of a particular race or ethnic group but also those associated with them in some manner. 
5. Laws by which any act, action or omission which directly or indirectly prejudices rights or legitimate interests constitutes “unfavourable treatment”, restricts the scope of protection offered by the Directive. 
6. Indirectly discriminatory measures can be justified if not disproportionate. 

In this case, if the practice in question was implemented or continued due to the ethnic origin prevalent to the community it would be direct discrimination. However, this was a matter for the Referring Court to decide. For indirect discrimination, it is not necessary to find that a practice was implemented due to reasons related to race or ethnic origin, it is enough to simply show that even though implemented with neutral criteria, the measure has the impact of placing persons of a specific ethnic origin at a disadvantage. 

CHEZ RB's practice needed to be shown to be necessary and appropriate and was not justified just by stating that the risks are ‘common knowledge’. No individual unlawful conduct was attributable to most of those affected and they could not be held accountable for such acts caused by third parties. They had a legitimate interest in being able to check and monitor their electricity consumption effectively and regularly. 

The referring Bulgarian court must decide, but the CJEU stated that the practice at issue appears disproportionate to the objectives pursued and cannot be justified within the meaning of Directive 2000/43. If the Referring Court held that the practice did not amount to direct discrimination, it should find that according to Article 2(2)(b) of the Directive, the practice shall be regarded as a seemingly neutral activity that disadvantages people of Roma descent in comparison to other people. 

Conclusion: 

The CJEU clarified that discrimination under Directive 2000/43 does not require actual harm and can arise from neutral measures that disproportionately disadvantage certain ethnic groups. While indirect discrimination can be justified if proportionate, the court indicated that CHEZ RB’s practice appeared excessive and likely unjustifiable. The Bulgarian court must decide, but if the practice is not deemed direct discrimination, it should be considered indirect discrimination against Roma people.