Opinion of the Advocate General — ECLI:EU:C:2025:621
Date: 2025-08-01
Language of the case: Slovak

Provisional text OPINION OF ADVOCATE GENERAL ĆAPETA delivered on 1 August 2025 (1) Case C‑799/23 European Commission v Slovak Republic ( Failure of a Member State to fulfil obligations – Social policy – Directive 2000/43/EC – Equal treatment between persons irrespective of racial or ethnic origin – Indirect discrimination against Roma children in the area of education ) I. Introduction 1. By the present action under Article 258 TFEU, the European Commission requests the Court of Justice to find that the Slovak Republic has failed to fulfil its obligations under Directive 2000/43 (2) by discriminating against Roma children in the area of education. 2. More precisely, the Commission claims, by its first plea, that Roma children are being placed in special schools or special classes for children with intellectual or other disabilities in significantly larger numbers than other children. By its second plea, it alleges that Roma children are being segregated from other children in primary education in regular schools, by being placed in Roma-only schools, in separate classes or on separate floors, or by being separated in school canteens. 3. That adverse treatment of Roma children is, according to the Commission, the result of practices which have existed for a long time and which the Slovak Republic has failed to eliminate. Those practices are widespread, in the sense that they give rise to discrimination against Roma children in the education system throughout the country. 4. While not disputing the existence of that discrimination, the Slovak Republic submits that it is the result of structural issues caused by the entrenched discrimination against Roma in Slovak society, which cannot be addressed quickly. That Member State, however, claims to have demonstrated that it has taken a number of measures intended to deal with the issue. 5. The present case, which is the first infringement action arising from structural inequality entrenched in a society, raises the novel question for the Court as to how it should deal with this type of action. The Commission is not criticising the Slovak Republic for the existence of concrete legislative or other measures that are discriminatory or that result in discrimination, but rather for the continued existence of discrimination within Slovak society. 6. It is therefore necessary, to my mind, to ask whether the Slovak Republic has an obligation of result, requiring it to eliminate discrimination on ethnic grounds in the area of education, or an obligation of conduct, requiring it simply to make its best efforts to eliminate such discrimination. The type of evidence relevant for the Court in deciding this case will depend on whether the obligation imposed by Directive 2000/43 is an obligation of result or one of conduct. II. The pre-litigation procedure and the procedure before the Court 7. Following enquiries in the form of an EU Pilot procedure, the Commission sent the Slovak Republic a letter of formal notice on 30 April 2015. 8. In that letter, the Commission claimed that there was convincing evidence that Roma children were subject to significant discrimination in the area of education in the Slovak Republic. The Commission alleged in particular that a disproportionate number of Roma children were placed in special schools or in classes for children with intellectual or other disabilities, as well as that Roma children were marginalised in other ways in regular schools through segregation, by placing them either in separate classes or in separate schools. That discrimination was the result, in the Commission’s view, of inadequate legislative measures transposing Directive 2000/43, of inadequate implementation of the existing measures and of flawed administrative and social practices. 9. On 16 August 2015, the Slovak Republic replied to the letter of formal notice, indicating that it had made legislative changes. For example, it had included a definition of segregation in the relevant legislation and had introduced an explicit obligation to place children from socially disadvantaged backgrounds with other children to avoid segregation. It had also introduced a legal mechanism enabling a review of the diagnostic procedures that were contributing to the disproportionate number of Roma children in special schools. Furthermore, that Member State refuted the argument that the existing legislation had not been correctly applied, and stated that it was continuing to gradually implement several additional measures in order to remedy the problems raised in the letter of formal notice. 10. Between December 2015 and December 2017, there were requests for additional information and a meeting was held between the Commission and representatives of the Slovak Republic. 11. On 11 October 2019, the Commission sent a reasoned opinion to the Slovak Republic, observing that, although recent changes to the relevant legislation certainly represented a significant improvement, there was still evidence of persistent discriminatory practices identical to those previously identified. 12. Accordingly, the Commission withdrew its allegation concerning the inadequate legislative transposition of Directive 2000/43. However, it considered that data still indicated that the Slovak Republic had not effectively addressed discrimination against Roma children in the education system, as Roma children continued to be disproportionately represented in special schools and special classes. That was largely the result, according to the Commission, of an inadequate diagnostic methodology and difficulties in reviewing diagnoses once made. It also maintained the allegation relating to the segregation of Roma children in regular schools. Although there were multiple causes, there was no justification for persisting segregation. 13. In the reasoned opinion, the Commission set a deadline of 11 December 2019, by which time the Slovak Republic was to have put an end to the alleged infringements. 14. On 6 December 2019, the Slovak Republic responded to that reasoned opinion. 15. In that response, the Slovak Republic asserted that the statistical data concerning Roma provided by the Commission were unreliable, in particular because of the difficulties associated with collecting such data on ethnicity. It then listed the legislative and non-legislative measures recently adopted to combat discrimination against Roma children in the school system and the specific projects proposed in that area. Finally, the Slovak Republic assured the Commission that it would endeavour to put in place the concrete legislative measures set out in its response to the Commission’s reasoned opinion as soon as possible, and undertook to implement other related short- and long-term measures in a gradual and continuous manner. 16. Following that response, there was further contact between the Commission and the Slovak Republic from 2020 to 2022, most notably in September 2022, when Ms Helena Dalli, the European Commissioner for Equality, visited schools in eastern Slovakia and met with representatives of the Slovak Republic, including Prime Minister Eduard Heger. 17. On 22 December 2023, the Commission brought the present action before the Court pursuant to Article 258 TFEU. 18. The Slovak Republic lodged its defence on 26 March 2024. 19. The Commission lodged a reply on 7 May 2024 and the Slovak Republic lodged a rejoinder on 17 June 2024. 20. A hearing was held on 8 April 2025, at which the Commission and the Slovak Republic presented oral argument. III. Analysis 21. By the present action, the Commission asks the Court to declare that the Slovak Republic has systematically and persistently failed to fulfil its obligations under Article 2(1) of Directive 2000/43, read in conjunction with Article 2(2)(b) and Article 3(1)(g) thereof: – by placing a disproportionate number of Roma children in special schools, or special classes for children with intellectual or other disabilities, in which the education follows a simplified curriculum; and – by segregating Roma children in separate classes in regular schools or in separate schools. 22. In proceedings alleging failure to fulfil obligations under Article 258 TFEU, the Commission must prove its allegations that an obligation has not been fulfilled. (3) 23. I am of the view that, before assessing the arguments brought before it, the Court must address the question of the type of evidence that the Commission should submit in support of its pleas in a case of this nature. 24. That, in my view, depends on whether the obligation arising under Article 2(1) of Directive 2000/43, read in conjunction with Article 2(2) thereof, is an obligation of result or an obligation of conduct. 25. I will therefore proceed as follows. 26. Under (A), I will set out the differences arising from a finding that there is an obligation of result compared with a finding of an obligation of conduct. 27. Under (B), I will propose that the Court construe Article 2(1) of Directive 2000/43, read in conjunction with Article 1 and Article 2(2) thereof, as imposing on Member States an obligation of result. That would require the Commission to demonstrate that the desired result – the absence of discrimination in education – has not been achieved in the Member State in question. 28. In that respect, as I will propose under (C), statistical or other data proving the existence of the alleged discrimination are an appropriate means of demonstrating the existence of the failure to fulfil obligations claimed by the Commission. By contrast, other evidence, relating to the measures taken to combat discrimination and their efficiency or inefficiency, is irrelevant to proving or disproving a failure to fulfil the obligation of result. 29. Under (D), I will argue that the Commission has sufficiently demonstrated the existence of discrimination against Roma children in relation to both its pleas. The defence submitted by the Slovak Republic, which seeks to persuade the Court that the measures that it has put in place will bring about the desired improvement, is not such that it rebuts the evidence that both forms of the alleged discrimination against Roma children continued to exist on expiry of the period set in the reasoned opinion. A. Obligation of result versus obligation of conduct 30. In the present case, as evidence in support of both its pleas, the Commission has submitted to the Court different statistical and other data, in reports by international organisations, non-governmental organisations (NGOs) and Slovak authorities. Those documents serve to demonstrate, first, that there was a disproportionate number of Roma children in special schools or special classes on expiry of the period set in the reasoned opinion and even after that date; and, second, that in many situations Roma children are placed in separate schools or separate classes within regular schools. (4) Those data are submitted in order to demonstrate the existence or continued existence of discrimination against Roma children in the Slovak education system. 31. The Slovak Republic does not, in principle, (5) refute the allegations that the discrimination persists. However, it submits that it has adopted a number of measures and programmes aimed at dealing with the existing discrimination. (6) Some of those measures were initiated before expiry of the period set in the reasoned opinion, and some were adopted afterwards. Those measures have, according to the Slovak Republic, already led to certain improvements. However, that Member State stresses that, given the existence of long-term structural inequality affecting Roma in Slovak society, the measures adopted could not change societal patterns in the short period of time laid down. 32. The Commission acknowledges that the Slovak Republic has adopted a number of measures which might contribute to the elimination of discrimination. However, it also considers a number of those measures to be inadequate or not sufficiently enforced. (7) Importantly, the Commission asserts that those measures have not yet eliminated or even reduced the level of discrimination against Roma children in the Slovak education system. (8) 33. The relevance of those arguments for deciding whether or not the alleged failure to fulfil obligations has actually occurred depends, in my view, on the type of obligation imposed on Member States by the provisions relied on by the Commission. Different arguments will be relevant depending on whether the Commission’s claim concerns a failure to fulfil an obligation of result or an obligation of conduct. 34. An obligation of result requires a Member State to bring about a specific predefined outcome or situation. The focus is on the outcome itself, regardless of the means chosen to achieve it. If the result is not achieved, there is a failure to fulfil, unless the Member State can demonstrate force majeure or other exceptional circumstances. Conversely, an obligation of conduct requires a Member State to take all appropriate measures to achieve a certain objective, without necessarily guaranteeing that that objective will be met. The focus is on the efforts made even if the outcome was not, or not yet, achieved. (9) 35. Accordingly, if Directive 2000/43 imposes an obligation of result, it is sufficient that the Commission demonstrates that discrimination against Roma children in schools simply exists. In such a scenario, the Slovak Republic’s arguments relating to the measures implemented to achieve the result do not constitute a defence; it does not refute the allegation of failure to fulfil an obligation. 36. By contrast, if there is an obligation of conduct, even if the result is not yet achieved, the fact that the Member State has used its best efforts to eliminate the discrimination is a relevant argument. In such a case, the Commission would have to demonstrate why the measures adopted by the Slovak Republic do not represent its best efforts to deal with discrimination. (10) 37. It should be recalled in addition that the Commission does not have an obligation to initiate an infringement procedure and enjoys full discretion not only to decide whether to initiate a procedure, but also when to do so and on what matter. (11) The Commission also has full discretion as regards whether to pursue such a procedure all the way to the Court of Justice. (12) 38. When asked at the hearing, the Commission explained that it decided to bring proceedings before the Court against the Slovak Republic even though similar problems also exist in other Member States (13) as it assessed that no appreciable progress was being made in eliminating the discrimination against Roma children in that Member State. 39. Whereas the Commission enjoys full discretion throughout the infringement procedure, once the case is before the Court, the Court has to decide the case on the basis of legal criteria (14) and does not have jurisdiction to examine the appropriateness of the Commission’s decision to bring proceedings before the Court against a Member State. (15) 40. Accordingly, if proceedings brought before the Court concern a claim for failure to fulfil an obligation of result, and if the Commission proves that the result has not been achieved, the Court cannot but find that obligation to have been infringed. 41. Where such a finding is made, the Commission will then monitor progress of the Member State’s compliance with the Court’s judgment and has discretion to decide whether, when and under what conditions to pursue the case further by bringing an action under Article 260 TFEU. (16) 42. In the present case, the Commission seems to have brought its action on the basis of an alleged failure to achieve a result. It claims that there is discrimination against Roma children in schools, rather than that the Slovak Republic is not making efforts to eliminate such discrimination. 43. The Commission’s principal claims are therefore that a result has not been achieved, as regards putting an end to the placement of disproportionately high numbers of Roma children in special schools and as regards desegregating Roma children in regular education. 44. Before assessing whether the Commission has proven its allegations, it is necessary to ascertain whether the Commission has grounds for bringing the present infringement proceedings on the basis of Article 2(1) of Directive 2000/43, read in conjunction with Article 2(2)(b) thereof. B. Elimination of discrimination as an obligation of result 45. Does Article 2(1) of Directive 2000/43 contain an obligation of result requiring Member States to eliminate direct and indirect discrimination in education? (17) 46. As I will argue, Directive 2000/43 does in fact impose an obligation of result rather than merely an obligation of conduct. 47. As set out in Article 1, Directive 2000/43 lays down ‘a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment’. The wording ‘putting into effect’ suggests not merely an effort, but a concrete outcome. 48. Article 2(1) of Directive 2000/43 provides that ‘for the purposes of this directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin.’ The wording ‘there shall be no … discrimination’ implies an obligation of result. 49. Article 2(2)(a) and (b) of that directive then defines direct and indirect discrimination. In that way, it indicates a desired state of affairs in which the principle of equal treatment is upheld. 50. Therefore, giving effect to that principle, which is the aim of Directive 2000/43, requires that direct or indirect discrimination based on racial or ethnic origin, including in education as claimed in the present case, be eliminated in the Member States. 51. However, in its written submissions, (18) the Slovak Republic states that the provisions of Directive 2000/43 on which the Commission relies do not in any way create obligations for Member States, but merely define the principle of equal treatment and the concept of indirect discrimination. 52. It is true that those provisions are not worded in terms of Member States’ obligations. Nevertheless, directives are, in general, EU instruments that require Member States to achieve regulatory results but leave them freedom to choose the modalities to achieve those results. (19) 53. Directive 2000/43 clearly outlines the result that each Member State has to achieve: equality in its society through the elimination of direct and indirect discrimination based on race or ethnic origin. Accordingly, correct implementation of that directive presupposes that discrimination is not present in a Member State. 54. The foregoing applies not only to individual instances of discrimination (20) but also to the elimination of structural inequalities. 55. The Commission has brought the present action based on a claim of indirect discrimination, as defined in Article 2(2)(b) of Directive 2000/43. Under that provision, indirect discrimination is considered to exist where an apparently neutral provision, criterion or practice places persons of a certain racial or ethnic origin at a disadvantage compared with other persons. 56. Precisely because it included indirect discrimination as a prohibited outcome, it seems clear to me that the EU legislature intended to abolish structural inequalities in Member States. (21) 57. Indirect discrimination is a particularly significant issue where there is entrenched structural inequality affecting one group within a given society. In such cases, rules that are apparently neutral in terms of ethnicity may easily have a disparate impact on an ethnic group already facing discrimination. (22) 58. That is precisely the situation at issue in the present case. As confirmed by the Slovak Republic, a particular form of indirect discrimination, the segregation of Roma, has been present in the society of that Member State for a long time. The problem is not one of de jure segregation, such as that addressed in Brown v Board of Education, (23) cited by some participants in these proceedings. That type of discrimination is easier to address, as any laws, regulations and administrative provisions of a Member State that are contrary to the principle of equal treatment must be abolished. Article 14(a) of Directive 2000/43 expressly so requires. (24) 59. However, in the present case, we are faced with de facto segregation, having its basis in practices rather than in the letter of law. Directive 2000/43 could not have prescribed specific measures to end such de facto segregation, as a solution to the problem cannot be achieved through the adoption of a specific rule or even a number of specific rules. Furthermore, the means of addressing de facto segregation will vary depending on the particular circumstances in each Member State. The foregoing explains why Directive 2000/43 does not prescribe specific measures aimed at eliminating entrenched discrimination against an ethnic group. 60. That lack of specific measures cannot, however, be interpreted as meaning that Directive 2000/43 does not impose on Member States an obligation to eliminate de facto discrimination resulting from structural inequality. Member States do have a positive obligation to take whatever measures are necessary to eliminate entrenched ethnic discrimination. That obligation is not expressed in the form of specific measures which Member States must adopt, as it could not be expressed in that way. 61. Furthermore, recital 12 of Directive 2000/43 states that specific action in the field of discrimination based on racial or ethnic origin is necessary in order to ensure the development of democratic and tolerant societies, which, in turn, allows for the participation of all persons irrespective of racial or ethnic origin. (25) The foregoing confirms that the aim of that act is the elimination of entrenched societal inequalities. 62. Such a perspective on the concept of discrimination is borne out by the case-law of the Court. 63. In its judgments, the Court has repeatedly held that the principle of equal treatment, as enshrined in the Treaties and the Charter of Fundamental Rights of the European Union, is a fundamental general principle of EU law. Secondary law instruments, such as Directive 2000/43, give concrete expression to that principle. (26) Upholding that principle imposes a duty that goes beyond the mere ‘best efforts’ obligation of Member States. 64. If Directive 2000/43 merely imposed obligations of conduct, its effet utile (effectiveness) in combating discrimination would be significantly undermined. The Court’s rulings, for example, on the interpretation of the concept of discrimination demonstrate a focus on preventing discriminatory outcomes. That has been the case in relation to both direct (27) and indirect discrimination. (28) The same is true as regards combating existing entrenched discrimination. 65. Additionally, construing the obligation of Member States under Articles 1 and 2 of Directive 2000/43 as an obligation of result that entails a positive duty to eliminate discrimination against Roma children in schools is in line with the position of the European Court of Human Rights (‘the ECtHR’) in its recent judgments relating to the segregation of Roma children in schools. (29) That court considered that a finding of the existence of segregation entails positive duties for States to desegregate. 66. Finally, in the area of education specifically, there exists an additional argument concerning why the EU legislature could not prescribe specific measures to be adopted by Member States, but could only impose an obligation of result. That argument is linked to the division of competences between the European Union and its Member States, as discussed at the hearing. 67. The European Union does not have regulatory competence in the area of education; as follows from Articles 6 and 165 TFEU, it enjoys only supportive competence. Therefore, the European Union cannot prescribe the measures that Member States must take with regard to the organisation of their education systems or the content of teaching. 68. Nevertheless, on the basis of its competence arising out of Article 19 TFEU, the European Union may adopt measures to combat discrimination on the ground of ethnic origin, thus limiting the competence of Member States in the organisation of their education systems. (30) Accordingly, given the absence of competence on the part of the European Union to prescribe specific measures, the elimination of discrimination in education can only be achieved through the imposition of an obligation of result. The measures by means of which the result is to be achieved are within the competence of the Member States. 69. The Slovak Republic, despite its initial argument that Article 2 of Directive 2000/43 only contains definitions, nevertheless seems to accept that that directive imposes an obligation of result. In its defence, it stated: ‘Directive 2000/43 thus requires Member States to ensure that the principle of equal treatment is implemented, including in the area of education.’ (31) 70. In sum, Articles 1 and 2 of Directive 2000/43, read in conjunction with Article 3(1)(g) thereof, impose an obligation of result on Member States to eliminate discrimination based on ethnic origin in the area of education. That obligation not only prohibits discrimination by Member States but also imposes a duty to adopt specific measures and concrete actions to eliminate existing inequalities resulting from entrenched societal prejudices. 71. If the intended result is a society free of discrimination against an ethnic group in education, the way in which the Court is to establish whether there is an infringement of that obligation of result is by looking at the evidence and ascertaining on that basis whether discrimination against Roma children in schools exists or not. That leads me to the next question regarding the type of evidence that must be adduced before the Court in order to demonstrate failure to fulfil an obligation of result. C. Proving the failure to fulfil an obligation of result 72. To prove a failure to fulfil an obligation of result to eliminate discrimination against Roma children in schools, the Commission has to adduce before the Court evidence that Roma children are at a disadvantage in the Slovak school system. If the Commission sufficiently demonstrates the existence of such discrimination, the Slovak Republic has to adduce evidence to contradict the Commission’s evidence and show that there is no differential treatment disadvantaging Roma children. Otherwise, it has to offer justification for that discriminatory treatment. 73. To my mind, most of the evidence brought before the Court by both parties in the present case is not relevant to deciding whether, as claimed in the Commission’s two pleas, discrimination existed on expiry of the period set by the reasoned opinion. 74. The Commission clarified at the hearing that in its view the Slovak Republic committed a breach of its obligations on account of discriminatory practices, which actively contributed to discrimination, and of a failure to take appropriate measures to eliminate entrenched societal discrimination. 75. In my view, while it is certainly important to identify the causes of the entrenched discrimination, in an infringement action claiming failure to fulfil an obligation of result, it is not necessary to prove which specific actions by State organs contributed to the alleged discrimination or which actions failed to bring it to an end. The Member State is in fact free to choose the means by which to eliminate discrimination. Whether those means are appropriate and effective is, for the purposes of the decision of the Court, only relevant in so far as it demonstrates whether or not the desired result was achieved. (32) 76. To sum up, all the arguments and supporting evidence exchanged by the parties concerning whether the various measures that the Slovak Republic has adopted are adequate and sufficient to address the issues raised in the two pleas are very important in the context of anti-discrimination policy and the efforts of that Member State and of the Commission to bring about equality. However, those arguments are not relevant for the Court in determining whether the infringement existed on expiry of the period set by the Commission in its reasoned opinion. 77. For the Court, all that is relevant is whether the Commission’s evidence proves that the discrimination existed at the material time and whether the Slovak Republic has proven that the measures it put in place had succeeded in eliminating the discrimination by that time. D. Has the Commission sufficiently demonstrated the alleged infringements in the present case? 1. The first plea: disproportionate number of Roma children in special schools or special classes 78. The Commission argues that, not only as at 11 December 2019, which was the expiry date of the period set in the reasoned opinion, but also afterwards, official data revealed a disproportionately high number of Roma children placed in special schools or special classes in the Slovak Republic. Approximately three times more Roma children than other children attended those special programmes. (33) 79. The Commission relies not only on various reports by EU bodies, international organisations and NGOs, but on reports issued by Slovak authorities. Even though those reports use different methodologies and contain slightly different results, they all show a disproportionate number of Roma children in special schools. To my mind, that evidence is sufficient prima facie evidence to shift the burden of proof to the Member State, which must demonstrate the inaccuracy or irrelevance of such evidence. 80. The Slovak Republic does not strictly speaking contest that claim of discrimination, but instead argues that improvement has been achieved by virtue of several measures it has introduced and that the numbers are therefore falling. (34) However, that Member State explains that it cannot demonstrate that decrease in numbers on the basis of the same data and methodology used in the reports presented by the Commission as it does not have those data or that methodology. (35) 81. Nevertheless, as the Commission rightly points out, even though the methodology is different, if any significant decrease had occurred in the proportion of Roma children in special schools, the different reports would record that positive trend, albeit on the basis of different methodologies. 82. In any case, statistics prepared by different authorities in the Slovak Republic do not show any significant change, but confirm the existence of a significant disproportion in December 2019, on expiry of the period set in the reasoned opinion. 83. An early document issued in 2011 by the Ministry of Education of the Slovak Republic, namely its National Strategy Plan, had acknowledged existing issues of discrimination following misdiagnoses of children. (36) Indeed, according to that document, while only a small percentage of any given population (between 1% and 3%) generally has an intellectual disability, Roma children accounted for between 16% and 17% of the children present in special schools or special classes in the Slovak Republic. By the same token, 60% of the children in special classes and 80% of the children in special schools were of Roma origin, while the Roma population represented only approximately 8% of the overall population. 84. In 2020, the Atlas of Roma Communities, compiled by the Deputy Minister of the Government of the Slovak Republic responsible for Roma communities, referred to comparable figures. According to that document, (37) 17% of children aged 6 to 15 from Marginalised Roma Communities (MRC) were placed in special education settings. For Roma children living in integrated households, the rate was slightly lower at 14%. As that document shows, those rates were significantly higher than among the general population – in 2019, only 5.7% of the total of school-age children in the Slovak Republic were enrolled in special education programmes. 85. Overall, one can debate the accuracy of one set of figures over another and/or the effectiveness of the methodology used in one study compared with another. (38) However, it has nevertheless been demonstrated that the disproportion, which indicates gaps between the figures reporting the experience of Roma children and those for the experience of non-Roma children, is too significant to be ignored. (39) 86. It is not disputed that the incorrect placement of children in special classes or schools is an indication of discrimination. Special schools have a reduced curriculum, which means that the children’s chances of continuing further education are curtailed, which consequently diminishes their prospects for equal inclusion in society as adults. 87. Roma children are thus put at a particular disadvantage compared with other children within the meaning of Article 2(2)(b) of Directive 2000/43. 88. However, according to established case-law, it is possible to justify indirect discrimination if the rule or practice at issue has a legitimate aim which is achieved in a proportionate manner. That concept of a legitimate aim capable of justifying ethnic discrimination must, however, be interpreted strictly. (40) 89. In that respect, the Slovak Republic submits that the existing disproportion in the figures might be explained by the fact that a high number of Roma children living in MRC come from such disadvantaged socio-economic environments that they are not as well prepared as other children to perform in the entry tests for primary school. That Member State further explains that it introduced measures, such as compulsory pre-primary education and parents’ assistants, which aim at bridging that gap. 90. On the one hand, the circumstance that a high proportion of Roma children live in disadvantaged socio-economic environments in MRC cannot be offered as a justification for discrimination against them in schools. Such entrenched inequality, even if it may explain the disproportionate representation in special school settings, cannot be used as justification for yet another instance of adverse impact. On the other hand, the measures which have been adopted to remedy the existing disproportion can be invoked as an argument only once those measures have achieved the intended result. 91. In conclusion, I am of the view that the Commission has sufficiently demonstrated that there existed a difference in treatment based on the disproportionate number of Roma children who had been placed in special schools or classes on expiry of the period set in the reasoned opinion. By contrast, the Slovak Republic has not rebutted Commission’s evidence or provided any legitimate aim for that discrimination. 92. I therefore propose that the Court should find the Commission’s first plea to be well founded. 2. The second plea: de facto segregation 93. The Commission’s second plea relates to the segregation of Roma children in the framework of regular schools. 94. A failure to fulfil the obligation to eliminate segregation, as a failure to fulfil an obligation of result, can be proven by reliable data demonstrating that segregation exists in practice. 95. In that respect, the Commission argues that, not only on expiry of the period set in the reasoned opinion but also after that date, (41) there was and has been widespread segregation of Roma children from their non-Roma peers in Slovak schools. That segregation has taken various forms – such as separate schools, classrooms or canteens. The Commission supports that assertion with statistical data and other evidence. 96. In its application, the Commission relies again on various documents issued by national or international authorities and NGOs. 97. In that regard, as early as 2012, before the beginning of the pre-litigation procedure, the Slovak Republic had recognised the existence of ethnic segregation affecting Roma children. (42) 98. During the pre-litigation procedure, there were various other official reports submitted which recognised the existence of ethnic segregation affecting Roma children. In a report from the Štátna školská inšpekcia (Academic School Inspectorate) for 2017/2018, it was acknowledged that ‘in four schools, the organisation of teaching showed signs of segregation through the establishment of separate classes for children from MRC and also through the spatial separation of cloakrooms and separate catering’. (43) 99. Even after the expiry of the period set in the reasoned opinion, Slovak authorities have continuously acknowledged the existence of segregation. In June 2020, the Ministry of Education, Science, Research and Sport of the Slovak Republic recognised that the segregation of Roma children in schools was a long-standing issue. (44) The ‘Strategy of equality, inclusion and participation of Roma until 2030’, adopted by the Slovak authorities in April 2021, still acknowledged that the previous strategy was failing to achieve its objectives. (45) 100. Similarly, in recent years, Slovak courts, in particular the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), have repeatedly ruled that, in several schools, Roma students were subject to de facto segregation. (46) Even if such judgments cannot, by themselves, be used as proof of generalised segregation, but rather of individual instances of discrimination, they are nonetheless relevant evidence together with other data that have been submitted. 101. Finally, in 2023, the Ministry of Education, Science, Research and Sport of the Slovak Republic adopted a guide on desegregation, (47) which was updated in 2024. (48) At the time of writing the present Opinion, the website of the Ministry of Education of the Slovak Republic has a dedicated section on desegregation, where it is stated that ‘for the Ministry of Education, Research, Development and Youth of the Slovak Republic (MŠVVaM SR), desegregation is not only a strategic priority but also a prerequisite for creating a more equitable and inclusive education system in Slovakia. The aim is for all children to be fully integrated into the education system and for every child to receive an education in line with their individual educational needs and to be fully integrated into society.’ (49) 102. The foregoing shows the dedication of the Slovak Republic to resolving the problem and makes clear that the issue in the present case does not concern the negation of EU values embodied in Article 2 TEU. (50) 103. Nevertheless, if the evidence brought before the Court shows that the segregation of Roma children existed on expiry of the period set in the reasoned opinion, the Court must find that an infringement occurred. (51) 104. All the documents submitted by the Commission point towards the existence of de facto segregation, and the Slovak Republic has not rebutted that evidence. 105. A further question that must be asked is whether segregation necessarily amounts to adverse treatment with the effect that it results in discrimination. 106. To my mind, segregation in itself constitutes discrimination. 107. Although it may be the case that the curricula followed by Roma children in separate schools or classes are not of inferior quality than the curricula offered in mixed classes, (52) the social and cultural separation of one ethnic group reinforces pre-existing stigmatisation in a society. It consequently diminishes the chances of those children finding their place in Slovak society, and does not place them on an equal footing with their non-Roma peers. Segregation is also bad for non-Roma children since they are deprived of exposure to a culture different from their own, which hinders their educational and societal growth. 108. That is the reason why, in my view, segregation in itself constitutes discrimination and can never be justified. 109. Nevertheless, the Slovak Republic considers that it cannot be held responsible for segregation that is not under its control. 110. For instance, it indicated that it is often the parents of non-Roma children who oppose inclusion of Roma children in classes, or who move their children to other schools because there are Roma children in the class in the school originally chosen. That phenomenon, known as ‘white flight’, (53) was discussed at the hearing as a possible excuse for the Slovak Republic. 111. That fact cannot be accepted as a justification for discrimination. (54) The positive duties imposed on Member States by Directive 2000/43 require that they enact and enforce measures to prevent the segregation in schools that results from the prejudice entrenched in a society in relation to one ethnic group. (55) 112. The same applies to the opposite situation, in which parents of Roma children consent to segregation. As the ECtHR held in Salay v. Slovakia, parental consent must not infringe upon a child’s right to equal access to education or legitimise actions that result in the unequal treatment of children within the education system. (56) 113. The Slovak Republic also argued that some Roma communities, very often the MRC, are territorially separate from the rest of the population, which explains why the schools in those areas are Roma-only schools. 114. While I can understand that that fact is a serious obstacle to eliminating Roma-only schools, I am nevertheless of the view that such segregation of children in schools cannot be justified by the existence of segregation affecting Roma persons in general in the Slovak Republic. (57) 115. However, because of the situation on the ground, it is true that, as the Slovak Republic contends, resolving issues of entrenched discrimination takes time. Nevertheless, the difficulties of eliminating segregation and the time it takes to do so cannot be used as a defence in infringement actions alleging the existence of discrimination. 116. One cannot ignore the sad fact that every year in which segregation is still present, each group of Roma children affected by that adverse treatment misses an opportunity for their future. That is difficult, if not impossible, to remedy. 117. In conclusion, I am of the view that the Commission has sufficiently demonstrated that there exists a widespread practice of segregation affecting Roma children in separate classes in regular schools or in separate schools. The Slovak Republic, in contrast, has not rebutted those findings, nor can such segregation be justified. 118. I therefore propose that the Court should find the Commission’s second plea to be well founded. IV. Costs 119. The Commission has claimed that the Slovak Republic should be ordered to pay the costs. Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Slovak Republic has been unsuccessful, it must be ordered to pay the costs. V. Conclusion 120. In the light of the foregoing considerations, I propose that the Court: (1) Declare that: – by placing a disproportionate number of Roma children in special schools, or special classes for children with intellectual or other disabilities, in which the education follows a simplified curriculum; and – by segregating Roma children in separate classes in regular schools or in separate schools, the Slovak Republic has systematically and persistently failed to fulfil its obligations under Article 2(1) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, read in conjunction with Article 2(2)(b) and Article 3(1)(g) thereof; (2) Order the Slovak Republic to bear its own costs and to pay those incurred by the European Commission. 1 Original language: English. 2 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22). 3 See, to that effect, judgments of 4 May 2006, Commission v United Kingdom (C‑508/03, EU:C:2006:287, paragraph 77 and the case-law cited), and of 11 July 2013, Commission v Czech Republic (C‑545/10, EU:C:2013:509, paragraph 70 and the case-law cited). 4 See, in respect of the first plea, paragraph 48 of the Commission’s application, and for the second plea, paragraphs 82 and 83 thereof. In the annexes to its application and to the reply, the Commission has submitted a large number of documents upon which it relies in the application. 5 The Slovak Republic nevertheless points to difficulties in disproving the statistics submitted by the Commission, as many of the reports on which the Commission relies are external and use different methodology, meaning that the Slovak Republic cannot substantiate improvements in the statistics using the same methodology. 6 See, in that respect, paragraph 74 of the defence. The Slovak Republic has also submitted a large number of documents attesting to its efforts to put in place adequate measures and programmes. 7 See, Commission’s reply, paragraph 53. 8 See, Commission’s reply, paragraph 35. 9 In international law, an obligation of result exists ‘where States have to achieve a specific factual situation the prescription of which may be either prohibitive or commanding.’ See, Wolfrum, R., ‘Obligation of result versus obligation of conduct Some thoughts about the implementation of international obligations’, in Arsanjani, M.H. et al. (eds.), Looking to the Future. Essays on International Law in Honor of W. Michael Reisman, Martinus Nijhoff Publishers, Leiden/Boston, 2011, p. 366, at p. 369. See also Nový, Z., ‘The dichotomy of obligations of conduct and result in international investment law’, Cofola International, 2022, p. 170, at p. 172. 10 The usual dichotomy used in international law is between obligations of conduct and obligations of result. However, Wolfrum considers that there are also other types of obligation that States assume under international law. One such type of obligation is what he calls a ‘goal-oriented obligation’. Such an obligation differs from the obligation of result as the States ‘commit themselves to set into motion an evolutionary process leading into a particular direction’, but without imposing a concrete result in advance (Wolfrum, op. cit., pp. 366-367). I am not of the view that the obligation under Article 2(1) of Directive 2000/43 should be interpreted as goal-oriented, as there is a clear result that has to be achieved – elimination of both direct and indirect discrimination. 11 See, to that effect, judgment of 14 February 1989, Star Fruit v Commission (247/87, EU:C:1989:58), and order of 4 October 2024, Fass v Germany and Commission (C‑187/24 P, EU:C:2024:872, paragraph 33 and the case-law cited). 12 There are other instances of entrenched discrimination which the Commission decided not to pursue for the time being. For example, discrimination between men and women in terms of equal pay for equal work or work of comparable value is arguably present in almost all EU Member States. See, in that regard, https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Gender_pay_gap_statistics. Nevertheless, no infringement proceedings have ever been initiated by the Commission. 13 It has also initiated infringement procedures against Hungary (INFR(2015)2206) and the Czech Republic (INFR(2014)2174). However, the Commission has not, or not yet, decided to bring those cases before the Court. 14 See, ex multis, judgments of 10 November 2020, Commission v Italy (Limit values – PM10) (C‑644/18, EU:C:2020:895, paragraph 70 and the case-law cited), and of 28 January 2020, Commission v Italy (Directive combating late payment) (C‑122/18, EU:C:2020:41, paragraph 64 and the case-law cited). Once the Commission alleges that a particular legal provision has been infringed, the Court must verify whether that was so, in law and in fact, irrespective of the reasons why the Commission initiated the procedure. See, in that respect, judgment of 6 October 2020, Commission v Hungary (Higher education) (C‑66/18, EU:C:2020:792, paragraph 56). 15 As the Court indicated, the Commission enjoys discretion as to whether or not to commence infringement proceedings, and it is not for the Court to judge whether that discretion was wisely exercised. See, in that respect, judgment of 6 July 2000, Commission v Belgium (C‑236/99, EU:C:2000:374, paragraph 28). 16 The Court has confirmed that, as in the case of the procedure under Article 258 TFEU, the Commission also enjoys discretion to initiate the procedure under Article 260 TFEU, and that the Court does not have power to review its reasons. See, for example, judgment of 16 July 2020, Commission v Romania (Anti-money laundering) (C‑549/18, EU:C:2020:563, paragraph 49 and the case-law cited). 17 Education falls within the scope of Directive 2000/43 on the basis of Article 3(1)(g) thereof, which is why the Commission is claiming an infringement of Article 2(2) of that directive in conjunction with Article 3(1)(g) thereof. 18 See paragraph 33 of the defence of the Slovak Republic. 19 See Article 288 TFEU. 20 For situations involving individual discrimination, the directive requires that effective remedies be made available to individuals suffering discrimination. See, in that respect, Articles 7 and 8 of Directive 2000/43. 21 That is, in my view, supported by Article 5 of Directive 2000/43. By allowing positive action ‘with a view to ensuring full equality in practice’, the EU legislature has provided a tool precisely in order to respond to entrenched inequalities. 22 See, for example, Fredman, S., ‘The Reason Why: Unravelling Indirect Discrimination’, Industrial Law Journal, 2016, pp. 231–243. 23 347 U.S. 483 (1954) (‘Brown v. Board of Education’). In that case, the Supreme Court of the United States declared that laws adopted by US states establishing racial segregation were unconstitutional. That court held that separate educational facilities were inherently unequal, and therefore the laws that imposed them violated the Equal Protection Clause of the Fourteenth Amendment of the US Constitution (at 459). 24 Unlike the situation in the United States at the time of Brown v. Board of Education, the Slovak Republic does not have segregationist legislation and agrees that segregation must be eliminated. The Commission’s action does not target Slovak legislation, but is rather concerned with the de facto situation. 25 See, to that effect, judgments of 12 May 2011, Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 41); of 16 July 2015, CHEZ Razpredelenie Bulgaria (C‑83/14, EU:C:2015:480, paragraph 40); and of 15 November 2018, Maniero (C‑457/17, EU:C:2018:912, paragraph 35). 26 Judgment of 15 November 2018, Maniero (C‑457/17, EU:C:2018:912, paragraph 36). 27 Judgment of 10 July 2008, Feryn (C‑54/07, EU:C:2008:397). 28 Judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria (C‑83/14, EU:C:2015:480). 29 See ECtHR judgments of 31 May 2022, X and Others v. Albania (CE:ECHR:2022:0531JUD007354817, §§ 84 to 87); of 13 December 2022, Elmazova and Others v. North Macedonia (CE:ECHR:2022:1213JUD001181120, § 74); and of 30 March 2023, Szolcsán v. Hungary (CE:ECHR:2023:0330JUD002440816, § 69). For an overview of the evolution of the case-law of the ECtHR leading to the recognition of a duty of desegregation, see Vrancken, M., ‘Segregation in education and a duty of desegregation under the ECHR’, European Human Rights Law Review, 2024, pp. 112 to 126. 30 In that respect, the Court has already ruled that ‘while EU law does not detract from the power of those Member States as regards, first, the content of education and the organisation of education systems and their cultural and linguistic diversity …, the fact remains that, when exercising that power, Member States must comply with EU law’. See, for example, judgment of 7 September 2022, Cilevičs and Others (C‑391/20, EU:C:2022:638, paragraph 59 and the case-law cited). 31 Paragraph 34 of the defence (my translation into English from French). It went on to state that ‘in order to uphold that principle effectively, it is necessary to ensure that each child, whatever his or her origin, has the same chance of receiving a high-quality education which will help that child as much as possible to develop his or her natural potential.’ 32 That conclusion is also in line with the position of the ECtHR in recent cases relating to discrimination in education. For example, in the judgments of 30 May 2013, Lavida and Others v. Greece (CE:ECHR:2013:0530JUD000797310), and of 30 March 2023, Szolcsán v. Hungary (CE:ECHR:2023:0330JUD002440816), the ECtHR did not even seek to ascertain which State measure was the cause of segregation. The fact of the existence of segregation was sufficient prima facie evidence of discrimination. 33 Additionally, according to the Commission, although reforms in the diagnostic procedures have been introduced, they have had little impact and the figures remain largely unchanged. 34 Those statements, however, all relate to the period post-dating the deadline set by the reasoned opinion. 35 See, the rejoinder of the Slovak Republic, paragraph 6. 36 See, Government Office of the Slovak Republic, Office of the Plenipotentiary of the Slovak Republic Government for Roma Communities, Strategy of the Slovak Republic for integration of Roma up to 2020, 2012, p. 15; available at: https://www.employment.gov.sk/files/legislativa/dokumenty-zoznamy-pod/strategyoftheslovakrepublicforintegrationof-romaupto2020.pdf. 37 Úrad splnomocnenca vlády SR pre rómske komunity (Office of the Plenipotentiary of the Government of the Slovak Republic for Roma Communities), Príjmy a životné podmienky v marginalizovaných rómskych komunitách: Vybrané ukazovatele zo zisťovania EU SILC_MRK 2020 (Income and living conditions in marginalised Roma communities selected indicators from the EU SILC_MRK 2020 survey); available at: https://www.romovia.vlada.gov.sk/site/assets/files/1561/analyticka_sprava_eu_silc_mrk_2020_elektronicka_final.pdf, p. 34 (Annex A.32 to the application, p. 1878). 38 One of the issues relating to the accuracy of the statistics was the discrepancy between the number of Roma living in Slovakia as based on population surveys and their number as used by different reports. Whereas it seems that the numbers in population surveys are indeed inaccurate, different bodies made comparable findings putting the number of Roma persons in Slovakia at some half a million (for an account on the topic, with references, see Council of Europe Advisory Committee on the Framework Convention for the Protection of National Minorities, Fifth Opinion on the Slovak Republic, 2022, footnote 26; available at: https://rm.coe.int/5th-op-slovak-republic-en/1680a6e4ee). 39 See also, similarly, ECtHR, judgment of 13 November 2007, D.H. and Others v. the Czech Republic (CE:ECHR:2007:1113JUD005732500, § 191). 40 See, to that effect, judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria (C‑83/14, EU:C:2015:480, paragraph 112). For similar reasoning on the scope of justification, see ECtHR, judgment of 11 December 2012, Sampanis and Others v. Greece (Sampanis II), (CE:ECHR:2012:1211JUD005960809, § 91). 41 In that respect, the Commission considers that, despite some legislative changes since 2015, there are still insufficient effective measures and the statistics show no real improvement. For example, a report by the European Agency for Fundamental Rights (available at: https://fra.europa.eu/en/publication/2022/roma-survey-findings) relies on data from 2021 showing that 65% of Roma children aged 6 to 15 attended schools where most, if not all, students were of Roma origin. Moreover, although Slovak authorities and courts have acknowledged the persistence of the issue, national laws do not require concrete action against such segregation. 42 See, already, footnote 36, op. cit., p. 4. 43 Štátna školská inšpekcia, Správa o stave a úrovni výchovy a vzdelávania v školách a školských zariadeniach v Slovenskej republike v školskom roku 2017/2018, Annex A.44 to the application, p. 32. 44 Filipová, M., Ministry of Education, Science, Research and Sport of the Slovak Republic, ‘Naším cieľom je odstrániť segregáciu rómskych detí’ (‘Our goal is to end the segregation of Roma pupils’), Press release, 17 June 2020; available at: https://www.minedu.sk/m-filipova-nasim-cielom-je-odstranit-segregaciu-romskych-deti/. 45 Úrad splnomocnenca vlády SR pre rómske komunity (Office of the Plenipotentiary of the Government of the Slovak Republic for Roma Communities), Stratégia rovnosti, inklúzie a participácie Rómov do roku 2030, 2021; available at: https://www.romovia.vlada.gov.sk/strategie/strategia-pre-rovnost-inkluziu-a-participaciu-romov-do-roku-2030/. 46 Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), judgments of 15 December 2022, ref. 5Cdo/102/2020 (Annex A.52 to the application); of 28 March 2023, ref. 4Cdo/112/2021 (Annex A.53 to the application); and of 12 July 2023, ref. 5Cdo/220/2022 (Annex A.54 to the application). 47 Ministerstvo školstva, vedy, výskumu a športu SR, Metodická príručka desegregácie vo výchove a vzdelávaní, 2023; available at: https://www.minedu.sk/data/att/71e/30599.332e7e.pdf. 48 Ministerstvo školstva, výskumu, vývoja a mládeže SR, Manuál a monitoring uplatňovania štandardov dodržiavania zákazu segregácie vo výchove a vzdelávaní, 2024; available at: https://www.minedu.sk/data/att/629/31682.beb17a.pdf. 49 Available at: https://www.minedu.sk/desegregacia/ (last consulted on 9.6.2025). 50 See, to that effect, my Opinion in Commission v Hungary (Values of the European Union) (C‑769/22, EU:C:2025:408, point 237 et seq.). 51 The measures taken to combat discrimination might have an influence on the decision on penalties, if the Commission decides to bring an action on the basis of Article 260 TFEU. 52 The evidence available to the Court shows, however, that, for the main part, the curriculum in segregated classes or schools is indeed of poorer quality. See, for example, European Commission: Directorate-General for Justice and Consumers, Migration Policy Group, Universiteit Utrecht and Durbáková, V., Country report non-discrimination – Transposition and implementation at national level of Council Directives 2000/43 and 2000/78 – Slovakia 2023, Publications Office of the European Union, 2023; available at: https://data.europa.eu/doi/10.2838/45886 Annex A.51 to the application, p. 49. 53 That concept refers to the phenomenon where ‘white’ or privileged families move their children from public schools, particularly those with increasing racial diversity, to private schools or schools in more predominantly white areas. It often occurs in response to perceived declines in school quality, which can be influenced by factors such as integration policies or demographic changes. 54 The ECtHR did not accept ‘white flight’ as a justification for the State against allegations of segregation. In its judgment of 13 December 2022, Elmazova and Others v. North Macedonia (CE:ECHR:2022:1213JUD001181120, §§ 72 to 79), the ECtHR acknowledged that a State may not be the sole cause of segregation, specifically in cases of parents of non-Roma pupils refusing to register their children because of a large presence of Roma pupils. That court, however, found there to be a breach of the rules on non-discrimination, even if there was no intention on the part of the State, because the segregation apparent in that case was not objectively and reasonably justified. See, also, judgment of 30 May 2013, Lavida and Others v. Greece (CE:ECHR:2013:0530JUD000797310, § 72). 55 See, similarly, ECtHR, judgment of 13 December 2022, Elmazova and Others v. North Macedonia (CE:ECHR:2022:1213JUD001181120, §§ 77 and 78), in which the ECtHR found that ‘white flight’ is made possible by the way in which the regulatory framework is structured in respect of the rules for both admission and transfer, which allowed privileged parents to make such choices. 56 ECtHR, judgment of 27 February 2025, Salay v. Slovakia (CE:ECHR:2025:0227JUD002935922, § 112). 57 See, similarly, ECtHR, judgments of 13 December 2022, Elmazova and Others v. North Macedonia (CE:ECHR:2022:1213JUD001181120, § 73), and of 30 March 2023, Szolcsán v. Hungary (CE:ECHR:2023:0330JUD002440816, §§ 54, 55 and 57).