London, 31 July 2015
On 16 July 2015, the Court of Justice of the European Union (CJEU) issued a preliminary ruling in a case of alleged discrimination on grounds of ethnicity, referred to it by a Bulgarian court. In a welcome decision, the Court provided important guidance on the application of Directive 2000/43/EC (the Race Equality Directive) to a determination of whether an electricity company’s placing of electricity meters in majority-Roma districts at a height where users could not read them was discrimination. In so doing, the Court made comments which indicate its support for a finding that the practice constitutes direct discrimination.
The case was brought to the consideration of the CJEU by the Administrativen sad Sofia-grad (Administrative Court, Sofia). The Administrative Court was considering a case brought to it in relation to a claim by Ms Nikolova, a non-Roma woman running a shop in a majority-Roma district, against electricity company CHEZ RB. In Ms Nikolova’s district, instead of following the usual practice of installing meters inside homes or at a height which makes them easily readable, CHEZ RB installed its electricity meters at a height of 6-7 meters, making them inaccessible to customers. CHEZ RB claimed that this decision was taken in response to high levels of meter tampering to steal electricity in the Roma-majority district. Ms Nikolova alleged that this was direct discrimination.
- The principle of equal treatment contained in the Directive protects not only persons who are themselves a member of a particular race or ethnic group, but also those who are not members of such a group but suffer particular disadvantage or less favourable treatment on racial or ethnic grounds.
- If the practice complained of was introduced or maintained because of the Roma ethnicity of most of the residents of the district, it amounts to direct discrimination. Whether this was the case is a matter for the Administrative Court. However, some of the facts and assertions may in fact suggest that the practice was based on stereotypes or prejudices against Roma.
- If the facts indicate indirect rather than direct discrimination, then an aim to prevent fraud and protect people’s life and health by preventing them from tampering with the meters or making illegal connections would be legitimate. However, the practice could not be objectively justified only by the contention that the tampering and theft is “common knowledge”. Instead, the electricity company must establish the levels of such tampering and theft so that the determining Court could decide whether there were less restrictive measures to achieve the legitimate aim and if not, whether the measures were proportionate.