Case C‑83/14

CHEZ Razpredelenie Bulgaria AD

Komisia za zashtita ot diskriminatsia

(Request for a preliminary ruling from the Administrativen sad Sofia-grad)

‛Directive 2000/43/EC — Principle of equal treatment between persons irrespective of racial or ethnic origin — Urban districts lived in mainly by persons of Roma origin — Placing of electricity meters on pylons forming part of the overhead electricity supply network, at a height of between six and seven metres — Concepts of ‘direct discrimination’ and ‘indirect discrimination’ — Burden of proof — Possible justification — Prevention of tampering with electricity meters and of unlawful connections — Proportionality — Widespread nature of the measure — Offensive and stigmatising effect of the measure — Directives 2006/32/EC and 2009/72/EC — Inability of final consumers to monitor their electricity consumption’

Summary — Judgment of the Court (Grand Chamber), 16 July 2015

EU law — Principles — Equal treatment — Equal treatment between persons irrespective of racial or ethnic origin — Directive 2000/43 — Scope — Installation at the final consumer’s property of an electricity meter constituting an adjunct inextricably linked to the supply of electricity — Included

(Council Directive 2000/43, Art. 3(1)(h))
EU law — Principles — Equal treatment — Equal treatment between persons irrespective of racial or ethnic origin — Directive 2000/43 — Discrimination on the grounds of ethnic origin — Concept — Less favourable treatment resulting from a collective measure relating to persons possessing a certain ethnic origin but also affecting persons not having that origin — Included

(Article 13 EC; Charter of Fundamental Rights of the European Union, Art. 21; Council Directive 2000/43, recital 16, Arts 1, 2(1) and 3(1))
Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Examination of the compatibility of national law with EU law — Not included — Provision to the national court of all the necessary guidance as to the interpretation of EU law — Included

(Art. 267 TFEU)
EU law — Principles — Equal treatment — Equal treatment between persons irrespective of racial or ethnic origin — Directive 2000/43 — National legislation requiring prejudice to rights or legitimate interests in order to conclude that there is direct or indirect discrimination on the grounds of racial or ethnic origin — Not permissible

(Council Directive 2000/43, Art. 2(1) and (2)(a) and (b) and Art. 3(1))
Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Identification of the subject-matter of the question

(Art. 267 TFEU)
EU law — Principles — Equal treatment — Equal treatment between persons irrespective of racial or ethnic origin — Directive 2000/43 — National measure involving direct discrimination — Criteria — Assessment by the national court — Burden of proof

(Council Directive 2000/43, Arts 2(2)(a) and 8(1))
EU law — Principles — Equal treatment — Equal treatment between persons irrespective of racial or ethnic origin — Directive 2000/43 — National measure involving indirect discrimination — Apparently neutral provision, criterion or practice putting persons at a particular disadvantage — Concept

(Council Directive 2000/43, Art. 2(2)(a) and (b))
EU law — Principles — Equal treatment — Equal treatment between persons irrespective of racial or ethnic origin — Directive 2000/43 — National measure involving indirect discrimination — Justification based on the pursuit of legitimate aims — Lawfulness — Condition — Assessment by the national court — Criteria

(Council Directive 2000/43, Art. 2(2)(b))

Since there is no doubt that the supply of electricity is covered by Article 3(1)(h) of Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, that provision must be interpreted as meaning that the installation at the final consumer’s property of an electricity meter, which constitutes an adjunct inextricably linked to that supply, falls within the scope of the directive and is subject to observance of the principle of equal treatment which the directive lays down.

(see para. 43)
The concept of ‘discrimination on the grounds of ethnic origin’, for the purpose of Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and, in particular, of Articles 1 and 2(1) thereof, must be interpreted as being intended to apply in circumstances in which, in an urban district mainly lived in by inhabitants of Roma origin, all the electricity meters are placed on pylons forming part of the overhead electricity supply network at a height of between six and seven metres, whereas such meters are placed at a height of less than two metres in the other districts, irrespective of whether that collective measure affects persons who have a certain ethnic origin or those who, without possessing that origin, suffer, together with the former, the less favourable treatment or particular disadvantage resulting from that measure.

In the light of the objective of Directive 2000/43 and the nature of the rights which it seeks to safeguard, its scope cannot be defined restrictively and the principle of equal treatment to which it refers thus applies not to a particular category of person but by reference to the grounds mentioned in Article 1 thereof.

Such an interpretation is supported by recital 16 in the preamble to, and Article 3(1) of, Directive 2000/43, according to which the protection against discrimination on grounds of racial or ethnic origin which the directive is designed to guarantee is to benefit ‘all’ persons.

It is also supported both by the wording of Article 13 EC, now, after amendment, Article 19 TFEU, a provision which constitutes the legal basis of Directive 2000/43 and which confers on the European Union the competence to take appropriate action to combat discrimination based, inter alia, on racial and ethnic origin, and by the principle of non-discrimination on grounds of race and ethnic origin enshrined in Article 21 of the Charter of Fundamental Rights of the European Union, to which the directive gives specific expression in the substantive fields that it covers.

(see paras 56-58, 60, operative part 1)
See the text of the decision.

(see para. 62)
Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, in particular Article 2(1) and (2)(a) and (b) thereof, must be interpreted as precluding a national provision which lays down that, in order to be able to conclude that there is direct or indirect discrimination on the grounds of racial or ethnic origin in the areas covered by Article 3(1) of the directive, the less favourable treatment or the particular disadvantage to which Article 2(2)(a) and (b) respectively refer must consist in prejudice to rights or legitimate interests.

(see para. 69, operative part 2)
See the text of the decision.

(see paras 71, 104)
Article 2(2)(a) of Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin must be interpreted as meaning that a measure under which, in an urban district mainly lived in by inhabitants of Roma origin, all the electricity meters are placed on pylons forming part of the overhead electricity supply network at a height of between six and seven metres, whereas such meters are placed at a height of less than two metres in the other districts, constitutes direct discrimination within the meaning of that provision 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, a matter which is for the national court to determine by taking account of all the relevant circumstances of the case and of the rules relating to the reversal of the burden of proof that are envisaged in Article 8(1) of the directive.

Although it is the person who considers himself to have been wronged because the principle of equal treatment has not been applied who must initially establish facts from which it may be presumed that there has been direct or indirect discrimination, in the context of establishing such facts it must be ensured that a refusal of disclosure by the respondent is not liable to compromise the achievement of the objectives pursued by Directive 2000/43.

(see paras 60, 78, 91, operative part 3)

Article 2(2)(b) of Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin must be interpreted as meaning that:

—	that provision precludes a national provision according to which, in order for there to be indirect discrimination on the grounds of racial or ethnic origin, the particular disadvantage must have been brought about for reasons of racial or ethnic origin;

—

the concept of an ‘apparently neutral’ provision, criterion or practice as referred to in that provision means a provision, criterion or practice which is worded or applied, ostensibly, in a neutral manner, that is to say, having regard to factors different from and not equivalent to the protected characteristic;

—

the concept of ‘particular disadvantage’ within the meaning of that provision does not refer to serious, obvious or particularly significant cases of inequality, but 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;

—

assuming that a measure under which, in an urban district mainly lived in by inhabitants of Roma origin, all the electricity meters are placed on pylons forming part of the overhead electricity supply network at a height of between six and seven metres, whereas such meters are placed at a height of less than two metres in the other districts, does not amount to direct discrimination within the meaning of Article 2(2)(a) of the directive, such a measure is then, in principle, liable to constitute an apparently neutral practice putting persons of a given ethnic origin at a particular disadvantage compared with other persons, within the meaning of Article 2(2)(b).

(see paras 60, 109, operative part 4)

Article 2(2)(b) of Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin must be interpreted as meaning that a measure under which, in an urban district mainly lived in by inhabitants of Roma origin, all the electricity meters are placed on pylons forming part of the overhead electricity supply network at a height of between six and seven metres, whereas such meters are placed at a height of less than two metres in the other districts, would be capable of being objectively justified by the intention to ensure the security of the electricity transmission network and the due recording of electricity consumption only if that measure did not go beyond what is appropriate and necessary to achieve those legitimate aims and the disadvantages caused were not disproportionate to the objectives thereby pursued. That is not so if it is found, a matter which is for the national court to determine, either that other appropriate and less restrictive means enabling those aims to be achieved exist or, in the absence of such other means, that that measure prejudices excessively the legitimate interest of the final consumers of electricity inhabiting the district concerned, mainly lived in by inhabitants of Roma origin, in having access to the supply of electricity in conditions which are not of an offensive or stigmatising nature and which enable them to monitor their electricity consumption regularly.

(see paras 60, 128, operative part 4)