Opinion of the Advocate General — ECLI:EU:C:2015:170
Date: 2015-03-12
Language of the case: Bulgarian
Subject matter: Principles, objectives and tasks of the Treaties;Fundamental rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

summary, it must be stated that a practice like the contested practice in the main proceedings may be justified under Article 2(2)(b) of Directive 2000/43 if it prevents fraud and abuse and contributes to ensuring the quality of the electricity supply in the interest of all consumers, provided that: (a) no other, equally suitable measures can be taken to achieve those aims, at a financially reasonable cost, which would have less detrimental effects on the population in the district concerned, and (b) the measure taken does not produce undue adverse effects on the inhabitants of the district concerned, due account being taken of: – the fact that the threat of stigmatisation of an ethnic group appreciably outweighs purely economic considerations and – the interest of final customers supplied with electricity in monitoring their individual energy consumption by means of a regular visual check of their electricity meters. D – The consequences for the main proceedings 140. If, in the discrimination test, the same conclusion is reached as I have outlined above, the subsequent question immediately arises of the consequences in the main proceedings of a finding of discrimination based on ethnic origin within the meaning of Directive 2000/43. This problem, which was a matter of dispute in Belov, has also been discussed at various stages in the present case, not least by CHEZ. 141. In this regard it is sufficient to make reference to the Court’s settled case-law: as far as possible, in the main proceedings the national rules must be interpreted and applied in conformity with the directive. The national courts are therefore bound to interpret domestic law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive. (80) They must do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying its interpretative methods, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it. (81) 142. On the basis of the information available to the Court, there is nothing to indicate that it would be impossible in the main proceedings to interpret and apply the relevant provisions of Bulgarian law, in particular those of the ZZD, in accordance with Directive 2000/43. Thus, as far as can be seen, no difficult questions relating to the horizontal direct effect of fundamental rights will arise. 143. It should also be noted that a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual. (82) 144. However, the prohibition of discrimination based on racial and ethnic origin is a general principle of EU law, which is enshrined in primary law in Article 21 of the Charter of Fundamental Rights and is merely fleshed out in Directive 2000/43 (83) — just like, for example, the prohibition of discrimination based on age or sexual orientation in Directive 2000/78 (84) and unlike, for instance, the entitlement to paid annual leave (85) or the workers’ right to information and consultation within the undertaking. (86) 145. In legal relationships like that at issue, between consumers or small business owners and providers of services of general interest, the principle of equal treatment is particularly important. In the same way as an employment relationship, such legal relationships are characterised by a structural imbalance between the parties. 146. At least in such a situation, it would seem to be justified to disapply, between private individuals too, national legislation which is contrary to the prohibition of discrimination established as a fundamental right, especially since in a case like the present one the private individual is not directly the party to whom the fundamental right is addressed, but the fundamental right is merely applied as a check on the legitimacy of domestic law. (87) VI – Conclusion 147. In the light of the foregoing considerations, I suggest that the Court answer the request for a preliminary ruling from the Administrativen sad Sofia-grad as follows: (1) In a district which is inhabited predominantly by people from a certain ethnic group, other persons residing there who do not themselves belong to that ethnic group may rely on the prohibition of discrimination based on ethnic origin where they suffer discrimination by association as a result of a measure on account of its wholesale and collective character. (2) If consumers are normally provided with free electricity meters which are installed in or on buildings in such a way that they are accessible for visual checks, whilst in districts inhabited primarily by members of the Roma community such electricity meters are attached to electricity poles at an inaccessible height of approximately 6 m, there is a prima facie case of indirect discrimination based on ethnic origin within the meaning of Article 2(2)(b), in conjunction with Article 8(1), of Directive 2000/43. (3) Such a measure may be justified if it prevents fraud and abuse and contributes to ensuring the quality of the electricity supply in the interest of all consumers, provided that: (a) no other, equally suitable measures can be taken to achieve those aims, at a financially reasonable cost, which would have less detrimental effects on the population in the district concerned, and (b) the measure taken does not produce undue adverse effects on the inhabitants of the district concerned, due account being taken of: – the fact that the threat of stigmatisation of an ethnic group appreciably outweighs purely economic considerations and – the interest of final customers supplied with electricity in monitoring their individual energy consumption by means of a regular visual check of their electricity meters. 1 Original language: German. 2 Opinion in Belov (C‑394/11, EU:C:2012:585). 3 In Belov (C‑394/11, EU:C:2013:48) the Court declared that it did not have jurisdiction to decide that request for a preliminary ruling because it did not accept the capacity of the referring authority as a court or tribunal within the meaning of Article 267 TFEU. 4 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). 5 Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on energy end-use efficiency and energy services and repealing Council Directive 93/76/EEC (OJ 2006 L 114, p. 64). Even though that directive was repealed and replaced with effect from 4 June 2014 by Directive 2012/27/EU (OJ 2012 L 315, p. 1), it is still applicable ratione temporis to the present case, as the contested decision by the KZD was taken before 4 June 2014. 6 Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55). 7 Zakon za zashtita ot diskriminatstia. 8 Zakon za energetikata. 9 ‘CHEZ’. 10 According to Ms Nikolova herself in her written observations in the proceedings before the Court. 11 The request for a preliminary ruling refers — in accordance with the linguistic usage in Article 120 of the ZE — to ‘commercial measuring instruments’ used in relation to the electricity consumption of final consumers. For reasons of simplicity, however, I will continue hereinafter to use the much more common term ‘electricity meter’, which is also found in EU law, for example in many language versions of Directive 2006/32. 12 Also ‘the contested practice’. 13 Komisia za zashtita ot diskriminatsia. 14 In the language of the case: ‘narodnost’ (народност). 15 Bulgarian Supreme Administrative Court. 16 Administrative Court for the City of Sofia. 17 Darzhavna komisia po energiyno i vodno regulirane. 18 See my Opinion in Belov (C‑394/11, EU:C:2012:585, points 59 to 65). 19 See my Opinion in Belov (C‑394/11, EU:C:2012:585, point 66). 20 ECHR, D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 182 in conjunction with § 175, ECHR 2007-IV. 21 Article 21(1) of the Charter draws on, inter alia, Article 14 of the European Human Rights Convention. In so far as Article 21(1) corresponds to Article 14 of the Convention, ‘it applies in compliance with it’ (Explanations relating to the Charter of Fundamental Rights, OJ 2007 C 303, p. 17 (at p. 24); those explanations were drawn up as a way of providing guidance in the interpretation of the Charter and, under the third subparagraph of Article 6(1) TEU in conjunction with Article 52(7) of the Charter, must be given due regard by the courts of the European Union and of the Member States). 22 Settled case-law; see, inter alia, Gauchard (20/87, EU:C:1987:532, paragraph 5); Feryn (C‑54/07, EU:C:2008:397, paragraph 19); MOTOE (C‑49/07, EU:C:2008:376, paragraph 30); and Asociaţia Accept (C‑81/12, EU:C:2013:275, paragraphs 41 to 43). 23 See, to this effect, General Recommendation VIII concerning the interpretation and application of Article 1, paragraphs 1 and 4, of the International Convention on the Elimination of All Forms of Racial Discrimination (UNTS Vol. 660, p. 195), published on 23 August 1990 by the Committee on the Elimination of Racial Discrimination (CERD). According to that recommendation, identification of individuals as being members of a particular racial or ethnic group must, if no justification exists to the contrary, be based upon self-identification by the individual concerned. 24 Of the language versions of Article 2(2) of Directive 2000/43 which I have compared, only the German (‘aufgrund ihrer Rasse oder ethnischen Herkunft’), Italian (‘a causa della sua razza od origine etnica’) and Croatian (‘zbog njezina rasnog ili etničkog podrijetla’) contain in subparagraph (a) the possessive pronoun highlighted here; that is not the case, on the other hand, in particular for the Bulgarian (‘въз основа на расов признак или етнически произход’), Czech (‘z důvodu rasy nebo etnického původu’), Spanish (‘por motivos de origen racial o étnico’), Estonian (‘rassilise või etnilise päritolu tõttu’), Greek (‘για λόγους φυλετικής ή εθνοτικής καταγωγής’), English (‘on grounds of racial or ethnic origin’), French (‘pour des raisons de race ou d’origine ethnique’), Hungarian (‘faji vagy etnikai alapon’), Dutch (‘op grond van ras of etnische afstamming’), Polish (‘ze względu na pochodzenie rasowe lub etniczne’), Portuguese (‘em razão da origem racial ou étnica’), Slovak (‘z dôvodu rasy alebo etnického pôvodu’) and Swedish versions (‘på grund av ras eller etniskt ursprung’) of that provision. 25 Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 43). 26 Coleman (C‑303/06, EU:C:2008:415, in particular paragraphs 50 and 51); for the concept of ‘discrimination par association’ see also the Opinion of Advocate General Poiares Maduro in that case (EU:C:2008:61, in particular points 4 and 5). 27 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16). 28 See again Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 43). 29 Coleman (C‑303/06, EU:C:2008:415, paragraphs 24 to 26 and 59). 30 See my statements below in points 69 to 139 of this Opinion. 31 In this regard — but only in this regard — the present case is similar to the situations in Feryn (C‑54/07, EU:C:2008:397, paragraphs 23 to 26) and Asociaţia Accept (C‑81/12, EU:C:2013:275, paragraph 49), in which the Court also focused on a discriminatory environment (in relation to the recruitment policy of potential employers). 32 I will address the question whether a merely indirect difference in treatment can form the basis for a finding of ‘discrimination by association’ further below in points 102 to 109 of this Opinion. 33 Recital 16 in the preamble to Directive 2000/43. 34 See also — with reference to age discrimination — my Opinion in Andersen (C‑499/08, EU:C:2010:248, point 31). 35 Recital 18 in the preamble to Directive 2000/43. 36 See recital 15 in the preamble to Directive 2000/43: ‘The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice’. This is in keeping with settled case-law on the preliminary ruling procedure; see, inter alia, MOTOE (C‑49/07, EU:C:2008:376, paragraph 30); Winner Wetten (C‑409/06, EU:C:2010:503, paragraph 49); Kelly (C‑104/10, EU:C:2011:506, paragraph 31); and Asociaţia Accept (C‑81/12, EU:C:2013:275, paragraphs 41 and 42). 37 Settled case-law; see Gauchard (20/87, EU:C:1987:532, paragraph 5); Feryn (C‑54/07, EU:C:2008:397, paragraph 19); MOTOE (C‑49/07, EU:C:2008:376, paragraph 30); and Asociaţia Accept (C‑81/12, EU:C:2013:275, paragraph 43). 38 See my Opinion in Belov (C‑394/11, EU:C:2012:585, points 70 to 74). 39 Feryn (C‑54/07, EU:C:2008:397, paragraph 25). 40 Article 3(7) of, in conjunction with paragraph 1(h) and (i) of Annex I to, Directive 2009/72 and the last sentence of recital 29 in the preamble to Directive 2006/32. 41 With regard to the meaning of the possessive pronoun ‘ihrer’ [‘their’], which does not appear in all language versions of Directive 2000/43, see above, points 53 and 54 and footnote 24 of this Opinion. 42 Dekker (C‑177/88, EU:C:1990:383, paragraphs 12 and 17); Handels- og Kontorfunktionærernes Forbund (C‑179/88, EU:C:1990:384, paragraph 13); Busch (C‑320/01, EU:C:2003:114, paragraph 39); and Kiiski (C‑116/06, EU:C:2007:536, paragraph 55). 43 Ingeniørforeningen i Danmark (C‑499/08, EU:C:2010:600, paragraphs 23 and 24). 44 Maruko (C‑267/06, EU:C:2008:179, paragraph 72) and Römer (C‑147/08, EU:C:2011:286, paragraph 52). 45 The latter point admittedly applies only to Member States in which registered partnerships are similar to marriage and are reserved for same-sex couples who do not have access to the institution of marriage. 46 I also made the same arguments in my Opinion in Belov (C‑394/11, EU:C:2012:585, points 97 and 98). 47 See recital 28 in the preamble to Directive 2000/43; according to that recital, the objective of that directive is ‘…ensuring a common high level of protection against discrimination in all the Member States …’ 48 Bulgarian: ‘vidimo’ (видимо). 49 In my Opinion in Hervis Sport- és Divatkereskedelmi (C‑385/12, EU:C:2013:531, point 41), I similarly stated that indirect discrimination can be taken to exist only if a measure has a detrimental effect on members of a certain group in the vast majority of cases, whilst the Court ruled that that must be the situation in the majority of casesHervis Sport- és Divatkereskedelmi (C‑385/12, EU:C:2014:47, paragraph 39). In the present case this distinction does not need to be considered in any greater detail as, according to the referring court, the Gizdova mahala district is indisputably the largest Roma district in Dupnitsa. 50 The offer made by CHEZ to make available, free of charge and within three days of a written request by the consumer, a special vehicle with a lifting platform cannot really be regarded as a reasonable alternative as it does not permit consumers to monitor their electricity consumption themselves and above all on an ongoing basis; see also below, point 138 of this Opinion. 51 With regard to this disadvantage, see above, point 95 of this Opinion. 52 See below, points 111 to 139 of this Opinion. 53 General statements regarding ‘discrimination by association’ can be found above in points 52 to 61 of this Opinion. 54 Coleman (C‑303/06, EU:C:2008:415). 55 See above, points 72 and 73 of this Opinion. 56 See above, points 69 to 110 of this Opinion. 57 See, for example, recital 6 in the preamble to Directive 2000/43, according to which the European Union rejects theories which attempt to determine the existence of separate human races. 58 See above, point 72 of this Opinion. A difference of treatment of persons on grounds of racial or ethnic origin is possible only where those persons are not in a comparable situation (see Article 2(2)(a) of Directive 2000/43) or there are genuine and determining occupational requirements (Article 4 of that directive). 59 See my Opinion in Belov (C‑394/11, EU:C:2012:585, point 100) and, supplementing this — with reference to the justification of age discrimination for the purposes of Directive 2000/78 — my Opinion in Andersen (C‑499/08, EU:C:2010:248, points 46 and 47). 60 With regard to the combatting by national authorities of fraud and abuse, see Halifax and Others (C‑255/02, EU:C:2006:121, paragraphs 68 and 69); Cadbury Schweppes and Cadbury Schweppes Overseas (C‑196/04, EU:C:2006:544, paragraph 35); and Kofoed (C‑321/05, EU:C:2007:408, paragraph 38). With regard to ensuring the security and quality of the energy supply in the Member States, see Campus Oil and Others (72/83, EU:C:1984:256, paragraph 34 and 35); Commission v Belgium (C‑503/99, EU:C:2002:328, paragraph 55); and Commission v Portugal (C‑543/08, EU:C:2010:669, paragraph 84). 61 See Question 5.3(c) in Belov, reproduced in my Opinion in that case (C‑394/11, EU:C:2012:585, point 21). 62 See my Opinion in Belov (C‑394/11, EU:C:2012:585, point 104). 63 See my Opinion in Belov (C‑394/11, EU:C:2012:585, point 105) and supplementing this — with reference to the justification of age discrimination for the purposes of Directive 2000/78 — my Opinion in Andersen (C‑499/08, EU:C:2010:248, point 53). The end of the first subparagraph of Article 6(1) of Directive 2000/78 has the same wording as Article 2(2)(b) of Directive 2000/43 and my arguments in Andersen can therefore be applied to the present case. 64 See my Opinion in Belov (C‑394/11, EU:C:2012:585, points 107 and 108). 65 See my Opinion in Belov (C‑394/11, EU:C:2012:585, points 113 to 115). 66 See my Opinion in Belov (C‑394/11, EU:C:2012:585, points 110 to 112). 67 That seems to be the assumption of the referring court on the basis of the wording of the last sentence of its tenth question, which refers to media reports of ‘other technically and financially feasible means’. 68 See my Opinion in Belov (C‑394/11, EU:C:2012:585, point 117). Similarly — with reference to Directive 2000/78 — Ingeniørforeningen i Danmark (C‑499/08, EU:C:2010:600, paragraphs 41 to 48, in particular paragraph 47) and my Opinion in that case, also known as Andersen (C‑499/08, EU:C:2010:248, paragraph 67). 69 Schräder HS Kraftfutter (265/87, EU:C:1989:303, paragraph 21); Tempelman and van Schaijk (C‑96/03 and C‑97/03, EU:C:2005:145, paragraph 7); and ERG and Others (C‑379/08 and C‑380/08, EU:C:2010:127, paragraph 86). 70 See again my Opinions in Belov (C‑394/11, EU:C:2012:585, point 117) and Andersen (C‑499/08, EU:C:2010:248, point 68). 71 See my Opinion in Belov (C‑394/11, EU:C:2012:585, point 118). 72 On this point I have reconsidered the arguments in my Opinion in Belov (C‑394/11, EU:C:2012:585, point 98) and have arrived at a new finding. 73 Last sentence of recital 29 in the preamble to Directive 2006/32. 74 See my Opinion in Belov (C‑394/11, EU:C:2012:585, point 119). 75 See in particular the first subparagraph of Article 13(1) of Directive 2006/32. 76 See my Opinion in Belov (C‑394/11, EU:C:2012:585, point 122). 77 See my Opinion in Belov (C‑394/11, EU:C:2012:585, point 121). 78 Article 3(7) of, in conjunction with paragraph 1(i) of Annex I to, Directive 2009/72 and the last sentence of recital 29 in the preamble to Directive 2006/32. 79 See my Opinion in Belov (C‑394/11, EU:C:2012:585, point 120). 80 Settled case-law; see, for example, Marleasing (C‑106/89, EU:C:1990:395, paragraph 8); Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 113); Dominguez (C‑282/10, EU:C:2012:33, paragraph 24); and Asociaţia Accept (C‑81/12, EU:C:2013:275, paragraph 71). 81 See, in this regard, Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraphs 115 to 119) and Dominguez (C‑282/10, EU:C:2012:33, paragraph 27); similarly, von Colson and Kamann (14/83, EU:C:1984:153, paragraph 28: ‘in so far as it is given discretion to do so under national law’). 82 Faccini Dori (C‑91/92, EU:C:1994:292, paragraph 20); Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 108); and Dominguez (C‑282/10, EU:C:2012:33, paragraph 37). To the same effect, Association de médiation sociale (C‑176/12, EU:C:2014:2, paragraph 39). 83 Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 43); see also my Opinion in Belov (C‑394/11, EU:C:2012:585, points 63 and 80). 84 The case-law on Directive 2000/78 can therefore be readily applied to Directive 2000/43; see Mangold (C‑144/04, EU:C:2005:709, paragraphs 74 and 75); Kücükdeveci (C‑555/07, EU:C:2010:21, paragraphs 51 and 53); and Römer (C‑147/08, EU:C:2011:286, in particular paragraph 59). 85 Dominguez (C‑282/10, EU:C:2012:33, in particular paragraph 42). That case did not concern an expression of the general principle of equal treatment under Article 21 of the Charter of Fundamental Rights, but a right enshrined in Article 31(2) in the ‘Solidarity’ Chapter of the Charter of Fundamental Rights. 86 Association de médiation sociale (C‑176/12, EU:C:2014:2, paragraphs 45 to 49). 87 See my Opinion in Belov (C‑394/11, EU:C:2012:585, points 81 and 82).