Case Watch: Roma Ruling Advances Antidiscrimination Protections in the European Union
By Zsuzsanna Nyitray & Simon Cox
In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.
Legal efforts to protect Europe’s Roma minority from racial discrimination have been given a substantial boost by the European Union's top court. The ruling in Nikolova v. CEZ*, delivered on July 16, is the most important to date from the Court of Justice of the European Union (CJEU) dealing with the EU's Race Equality Directive. It represents a significant advance in equal treatment law, outlawing unfavorable treatments of districts based on their ethnic make-up and extending protection to all residents of affected places.
The judgment answers questions raised by the Administrative Court of Sofia in a dispute between Ms. Nikolova and the company which supplied electricity to her shop in Gizdova, a mainly Roma district of Dupnitsa, Bulgaria.
Ms. Nikolova complained to the Bulgarian National Anti-Discrimination Commission about the electricity company placing electricity meters out of easy reach of householders on tall poles (as high as 7 meters, or over 22 feet) in the street in some mainly Roma districts in Bulgaria. This harmed her interests as it effectively prevented her keeping track of her electricity usage.
Though not herself Roma, Ms. Nikolova argued this was discrimination because CEZ did this to every meter in Gizdova, but nowhere else in Dupnitsa. The practice implied all the citizens of Gizdova were not trustworthy enough to access and read their own meters and so stigmatized a whole community as thieves. Armed with material in which CEZ had cited Roma ethnicity as a factor for its decisions, the Anti-Discrimination Commission agreed with Ms. Nikolova and upheld her case; CEZ appealed before the Administrative Court of Sofia. In her case to the CJEU she pressed for an expansive reading of EU law on direct and indirect discrimination.
What is the significance of the judgment for the field of racial discrimination?
The decision is powerful in many ways. First, the CJEU rightly interpreted the Race Equality Directive (2000/43) “RED” as barring all discrimination “based on race or ethnic origin” regardless of the actual race or ethnic origin of the person who had been wronged by the discriminatory practice. A practice based on racial or ethnic origin which is directed at a district does not lose its discriminatory character just because it affects persons who do not share that racial or ethnic origin. This applies for direct discrimination, e.g., where the district was selected because it is Roma. But it also applies for indirect discrimination, where the practice has an unjustified differential impact on the district.
Second, every person affected by collective racial discrimination is a victim of that discrimination, regardless of their own racial or ethnic orgin. Even though Ms. Nikolova is not Roma, she can complain of the effects of discrimination on her.
Third, the court’s approach to “comparator” districts is a crucial tool. CEZ argued that Gizdova could not be compared to districts without its problems of interference with meters. The CJEU rejected this, ruling that the comparator were other urban districts supplied with electricity by CEZ. This has an important impact on any service provider whose activities fall under the scope of the RED (all public and private pay-for services, as well as schools and social welfare services, etc.). Suppose there are no night buses to district A in the city of Rome, which is a home for many Roma people, but busses run all night in district B, where only few Roma people live. The service provider (the bus company) can be made to justify this difference by objective factors independent of raceeven if there are significant differences between the districts; e.g., district A is much further in its distance from the city center than district B Arguments such as cost-efficiency may not suffice to justify an ostensibly neutral practice if it actually impacts a particular racial or ethnic group differently. Service providers may be forced to make proper provision even if this will cost more (e.g. laying new electricity lines or running buses to district A).
Fourth, the judgment breaks new ground in ruling that indirect discrimination with “offensive and stigmatizing” effects cannot be justified. The court accepts that cost considerations are less important than eliminating hurtful and humiliating situations that affect particular ethnic groups.
Fifth, the Nikolova ruling can cross-fertilize other areas of the EU’s antidiscrimination law such as equal employment on the grounds of gender, sexuality, and age. When deciding under the RED whether differential treatment is justified, the court will moreover have to respect the general principle of equality under Article 21 of the EU Charter of Fundamental Rights. If Article 21 is held to address unequal treatment on socioeconomic grounds, the court could, as a next step, find it illegal to justify indirect racial discrimination against a district on grounds of the poverty of the residents of that district, an even more radical expansion of the scope of the protection available under equality law.
What does the CJEU’s ruling signify for the Roma community?
Practices of Governments and service providers with stigmatizing or humiliating effects on Roma communites are still prevalent in Europe. The judgment sends the clear message that such practices are prima facie proof of direct discrimination, but even if indirect, cannot be justified.
By clearly ruling that electricity provision is subject to EU antidiscrimination law, the case lays the ground for succesful claims against other anti-Roma practices in the electricity industry and other utilities.
What does the judgment entail for CEZ?
The judgment puts real pressure on CHEZ (and the Czech Government as its majority owner) to change their practice. Already facing the threat of significant compensation claims and court orders to comply, CHEZ should join the other Bulgarian electricity providers in putting meters in reach. The judgment should also serve as a springboard for the company reviewing their other racially discriminatory practices.
The CJEU’s powerful interpretation of the scope of the RED in the Nikolova case significantly enhances the protection available to racial or ethnic minorities under EU law.
*Editor’s note: The court transliterated the company’s name from Bulgarian cyrillic script as CHEZ; it refers to itself in Roman script as CEZ, the initials the Justice Initiative used in its submissions to the court.
Until October 2015, Zsuzsanna Nyitray was an Aryeh Neier Fellow with the Open Society Justice Initiative’s Rule of Law program.
Simon Cox is the migration lawyer for the Open Society Justice Initiative.