Simon Cox

The Court of Justice of the European Union in Luxembourg recently heard arguments in a case regarding racial discrimination against Roma people. The case involves a non-Roma woman arguing that anyone negatively impacted by racially discriminatory actions deserves legal recourse under EU law. This case challenges the court’s prior decision in Coleman and seeks to clarify who can invoke EU discrimination law.

This case, originating from the Sofia Administrative Court, involves ten preliminary questions under the European Union Directive 2000/43 regarding racial discrimination. The case involves CEZ, an electricity company in Bulgaria, appealing a decision made by the Bulgarian National Anti-Discrimination Commission in favor of Ms. Nikolova. Ms. Nikolova filed a complaint alleging that CEZ’s decision to place her electricity meter on a 7-meter pole was discriminatory. This practice, while applied throughout the Gizdova district, wasn’t present elsewhere in her town. Ms. Nikolova argued this placement led to inflated bills due to her inability to monitor the meter. Since Gizdova is primarily Roma, she claimed CEZ targeted the area based on ethnicity. The Commission agreed with Ms. Nikolova, citing numerous complaints and evidence that CEZ considered Roma ethnicity when making its decision. Ms. Nikolova’s case before the CJEU argues for a broad interpretation of EU anti-discrimination law.

This case presents the CJEU with its first chance to determine how the Race Equality Directive applies to the Roma, Europe’s most vulnerable minority group. A similar case (Belov) was previously deemed inadmissible, although the Advocate General considered the issue’s substance.

Arguments were heard by the CJEU Grand Chamber from CEZ, Ms. Nikolova, the Bulgarian Government, and the European Commission.

The main point of contention was the scope of protection provided by the Directive. Ms. Nikolova, supported by the European Commission, argued that Directive 2000/43 prohibits any discrimination based on race or ethnicity, irrespective of the victim’s race. Citing the Coleman case, they argue this law aims to eliminate all such discrimination.

CEZ argued that Coleman dealt with discrimination “by association,” a term defined differently in Bulgarian law and not applicable to Ms. Nikolova’s situation. The Bulgarian Government agreed with CEZ’s interpretation.

Judge Prechal questioned the “restrictive” nature of the Bulgarian definition. Ms. Nikolova maintained that “based on” encompasses any situation where the decision-maker considered actual, perceived, or apparent origin, arguing this broad interpretation is the only way to eradicate racial discrimination.

Concerning comparators, Ms. Nikolova argued that when only Roma neighborhoods experience such treatment, the burden of proof shifts to the defendant, as per Directive Article 8. If CEZ can’t prove race wasn’t a factor, a hypothetical comparator becomes irrelevant.

CEZ denied racial bias, claiming the measures were implemented due to illegal electricity connections common in illegally built dwellings. They argued against the subjectivity of “stigmatization” and highlighted the cost implications of changing the meters.

Judges questioned CEZ’s choice to not implement smart meters, a solution used by other Bulgarian companies. CEZ’s counsel lacked knowledge about this alternative but cited cost as a potential barrier. Further questioning by Judge Rodin revealed that CEZ engineers make decisions based on district-level assessments, without considering individual payment history, and their decisions are final, with no option for consumer appeals.

Judge Borg Barthet inquired if only Roma districts had elevated meters, to which CEZ’s counsel had no answer. Judge Lenaerts simplified the question, establishing that the practice was implemented in ten to twenty districts.

CEZ’s counsel argued for flexibility during their reply but declined to respond to the other parties.

Ms. Nikolova’s counsel requested guidance for the national court on indirect discrimination, stating that other Dupnitsa districts should be the comparison point. They argued that discrepancies in illegal connections are only relevant when justifying the decision objectively. CEZ’s claim of destroyed records related to the decision, coupled with their unassessed cost justification and the inflexible, collective nature of their practice, were also highlighted.

Advocate-General Kokott’s opinion is expected on March 12th.

The hearing, initially conducted in Bulgarian, transitioned to English at Judge Lenaerts’s invitation after Ms. Nikolova’s request to plead in English was denied.

Ms. Nikolova is represented by the Open Society Justice Initiative, with Simon Cox of the Bar of England and Wales, Yonko Grozev of the Sofia Bar, and Maxim Ferschtman of the Amsterdam Bar.

Barnard & Peers: chapter 20

Photo: Bjorn Steinz, for the Open Society Foundation