Information;Order — ECLI:EU:C:2024:728
Date: 2024-09-10
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Fundamental rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Austria

summary and, in so far as relevant in the present case, argued that the 
only differentiation factor for the difference in price of the semester card was 
whether the principal residence was in Vienna. That does not constitute a justified 
ground for differentiation and constitutes indirect discrimination, especially since 
the criterion is particularly likely to discriminate against persons of another 
nationality or of another ethnic group. The setting of the ticket price is, in 
particular, contrary to Paragraph 31 et seqq. of the Gleichbehandlungsgesetz 
SWIFTSUIT LEGAL TECH 
 
3 
(Federal Law on Equal Treatment; ‘the GlBG’). This resulted in the partial nullity 
of the contracts of carriage, the defendant having enriched itself with the price 
difference. The undue payments constituted financial loss. In addition, an amount 
of EUR 300 is claimed for each infringement of the GlBG on each ticket 
purchase, in accordance with Paragraph 31 et seqq. of the GlBG, in respect of the 
personal damage suffered. Indirect discrimination based on origin constitutes 
harm to the student’s dignity. 
The defendant raised an objection of lack of jurisdiction on the merits, contended 
that the action should be rejected or in the alternative dismissed, and objected, in 
summary and in so far as is relevant here, that a distinction based on the principal 
residence did not discriminate against any ethnic group and that there was 
therefore no discrimination within the meaning of Paragraph 31(1) of the GlBG. 
For all Austrian nationals who do not have their principal residence in Vienna as a 
group, the necessary delimitation is, in principle, already lacking. The present 
pricing is based on considerations wholly independent of students’ ethnicity. Nor 
does it aim at unequal treatment of ‘foreign’ persons by reason of that 
characteristic. Any person entitled to reside in Austria can and may establish their 
(principal) domicile in Vienna, regardless of the ethnic group to which they 
belong. The principal residence criterion concerns persons with Austrian 
nationality, as well as persons who do not possess this. Delimitation according to 
principal residence does not discriminate against any ethnic group. The criterion 
of principal residence is even particularly objective in that it is not based on 
nationality or ethnic criteria. In addition, according to the text of the GlBG, 
persons belonging to a given ethnic group would have to ‘be placed at a 
particular disadvantage’. That provision is to be understood as meaning that it is 
particularly persons of a given ethnic group who are disadvantaged by the 
measure at issue. In the present case, however, there is precisely no particular 
disadvantage for a particular ethnic group. 
The court of first instance rejected the defendant’s plea of lack of jurisdiction on 
the merits and ordered the defendant to pay EUR 1 500 […]. It stated that there 
was no legal definition of the concept of ethnic origin. It is apparent from the 
travaux préparatoires for the GlBG that that concept must be interpreted more 
broadly and has a strong cultural orientation. The question is whether people are 
‘perceived as foreign because they are not considered to belong to the regional 
majority because of certain differences’. It is clear that a much greater number of 
students coming from Vienna have their principal residence in Vienna than 
students from other provinces or students from other States. A criterion therefore 
exists for distinguishing the student, who comes from the province of Lower 
Austria, from the regional majority. Since the apparently neutral criterion of 
principal residence is thus particularly likely to discriminate against persons of 
different ethnicity, there is indirect discrimination within the meaning of 
Paragraph 32 of the GlBG. The possibility of establishing a principal residence in 
Vienna is not relevant to the assessment of the question at issue by reason of the 
free choice of residence. There is no valid objective justification for the unequal 
treatment at issue, with the result that it is necessary to make good the damage to 
REQUEST FOR A PRELIMINARY RULING OF 26. 1. 2024 – CASE C-65/24 
 
4  
the extent of the price difference and the appropriate non-material damage alleged. 
The amount of non-material damage of EUR 300 per ticket purchase, that is to 
say, a total of EUR 1 200, appears appropriate. 
The defendant filed an appeal against the decision of the court of first instance, 
requesting that it be amended to the effect that the action be rejected or dismissed; 
in the alternative, an application for annulment will be submitted. 
In its reply, the applicant contends that leave to appeal should not be granted. 
The Regional Court for Civil Matters Vienna, as the appellate court, is called upon 
to rule on the dispute at second and […] final instance. 
C. Preliminary observations: 
The outcome of the dispute depends essentially on the interpretation of Article 2 
of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of 
equal treatment between persons irrespective of racial or ethnic origin (‘Directive 
2000/43/EC’). According to the assessment of the Regional Court for Civil 
Matters Vienna, there is no ‘acte clair’ in relation to the question referred for a 
preliminary ruling, which is why a reference for a preliminary ruling to the Court 
of Justice of the European Union is necessary. 
D. Legal framework: 
Provisions of European Union law relied on 
Article 2 of Directive 2000/43/EC provides: 
[…] 
Concept of discrimination 
1. 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. 
2. For the purposes of paragraph 1: 
(a) direct discrimination shall be taken to occur where one person is 
treated less favourably than another is, has been or would be treated in 
a comparable situation on grounds of racial or ethnic origin; 
(b) indirect discrimination shall be taken to occur where an 
apparently neutral provision, criterion or practice would put persons of 
a racial or ethnic origin at a particular disadvantage compared with 
other persons, unless that provision, criterion or practice is objectively 
justified by a legitimate aim and the means of achieving that aim are 
appropriate and necessary. 
SWIFTSUIT LEGAL TECH 
 
5 
[…] 
Article 3(1)(h) of Directive 2000/43/EC provides: 
[…] 
Scope 
1. Within the limits of the powers conferred upon the Community, this 
Directive shall apply to all persons, as regards both the public and private 
sectors, including public bodies, in relation to: 
[…] 
(h) access to and supply of goods and services which are available to 
the public, including housing. 
[…] 
Article 7 of Directive 2000/43/EC provides: 
[…] 
Defence of rights 
1. Member States shall ensure that judicial and/or administrative 
procedures, including where they deem it appropriate conciliation 
procedures, for the enforcement of obligations under this Directive are 
available to all persons who consider themselves wronged by failure to 
apply the principle of equal treatment to them, even after the relationship in 
which the discrimination is alleged to have occurred has ended. 
2. Member States shall ensure that associations, organisations or other 
legal entities, which have, in accordance with the criteria laid down by their 
national law, a legitimate interest in ensuring that the provisions of this 
Directive are complied with, may engage, either on behalf or in support of 
the complainant, with his or her approval, in any judicial and/or 
administrative procedure provided for the enforcement of obligations under 
this Directive. 
3. Paragraphs 1 and 2 are without prejudice to national rules relating to 
time limits for bringing actions as regards the principle of equality of 
treatment. 
Provisions of national law relied on 
The Federal Law on Equal Treatment (‘the GlBG’) is intended to transpose 
Directive 2000/43/EC into Austrian law. 
REQUEST FOR A PRELIMINARY RULING OF 26. 1. 2024 – CASE C-65/24 
 
6  
Paragraphs 31, 32 and 38 of the GlBG read as follows: 
Principle of equal treatment 
Paragraph 31. (1) No one shall be discriminated against directly or indirectly 
on grounds of sex, by reference in particular to marital status or to the fact 
that a person has children or ethnicity, in access to goods and services 
available to the public and in the supply of goods and services, including 
housing. Any discrimination against women on grounds of pregnancy or 
maternity constitutes direct discrimination on grounds of sex. 
(2) The aim is to ensure equality between men and women and to reduce 
other discrimination. 
(3) Furthermore, no one may be subject to direct or indirect discrimination 
on grounds of ethnicity 
1. as regards social protection, including social security and health 
services, 
2. as regards social advantages, 
3. in the field of education. 
(4) Paragraphs 1 and 3 shall not affect the provisions and conditions of 
entry and residence of third-country nationals and stateless persons and any 
treatment arising from the legal status of third-country nationals and 
stateless persons. 
Definitions 
Paragraph 32. (1) Direct discrimination shall be taken to occur where a 
person, based on a reason specified in Paragraph 31, is treated less 
favourably in a comparable situation than another person is, has been or 
would be treated. 
(2) Indirect discrimination shall be taken to occur where an apparently 
neutral provision, criterion or practice would put persons of one sex or 
persons who belong to an ethnic group at a particular disadvantage, unless 
that provision, criterion or practice is objectively justified by a legitimate 
aim, and the means of achieving that aim are appropriate and necessary. 
[…] 
(4) There is also discrimination where a person is discriminated against on 
the basis of their close relationship with a person on grounds of their sex or 
ethnicity. 
Legal consequences of breach of the principle of equal treatment 
SWIFTSUIT LEGAL TECH 
 
7 
Paragraph 38. (1) In the event of a breach of the principle of equal treatment 
referred to in Paragraph 31, the person concerned shall be entitled to 
compensation for financial loss and compensation for the personal injury 
suffered. 
[…] 
(7) The amount of compensation for the personal injury suffered must be set 
at such a level that it actually and effectively compensates for that injury, 
that it is appropriate to make good the harm suffered and to avoid 
discrimination. 
Paragraph 1(7) of the Bundesgesetz über das polizeiliche Meldewesen 
(Meldegesetz 1991) (Law on Residence Registration – ‘the MeldG’) reads as 
follows: 
Definitions 
Paragraph 1. 
(7) A person’s main residence is established at the place of accommodation 
where he or she has established himself with the intention, as proven or 
indicated by circumstances, to place this at the centre of his or her life 
relations; if that objective condition, assessed in the context of an overall 
assessment of an individual’s occupational, economic and social relations, 
applies to several residences, he or she must specify the principal residence 
with which he or she has a relationship of preponderant proximity. 
[…] 
E. Succinct presentation of the reasoning in the request for a preliminary ruling 
1. Article 3(1)(h) of Directive 2000/43/EC makes general reference to access to 
and supply of goods and services which are available to the public (see judgment 
in Runevič-Vardyn and Wardyn, C-391/09, EU:C:2011:291, paragraph 45). 
2. As the Court of Justice of the European Union has already held, in the light 
of the objective of Directive 2000/43/EC and the nature of the rights which it 
seeks to safeguard, and in view of the fact that that directive is merely an 
expression, within the area under consideration, of the principle of equality, which 
is one of the general principles of EU law, as recognised in Article 21 of the 
Charter, the scope of that directive cannot be defined restrictively (judgments of 
12 May 2011, Runevič-Vardyn and Wardyn, C-391/09, EU:C:2011:291, 
paragraph 43, and of 16 July 2015, CHEZ Razpredelenie Bulgaria, C-83/14, 
EU:C:2015:480, paragraph 42). 
3. There is no doubt that the semester cards offered by the defendant fall within 
the scope of Article 3(1)(h) of Directive 2000/43/EC as a supply of local public 
REQUEST FOR A PRELIMINARY RULING OF 26. 1. 2024 – CASE C-65/24 
 
8  
passenger transport, so that the facts at issue fall within the material scope of 
Directive 2000/43/EC and are subject to the principle of equal treatment enshrined 
therein. 
4. The question referred for a preliminary ruling concerns whether 
Article 2(2)(b) of Directive 2000/43/EC must be interpreted as meaning that the 
situation described at the outset constitutes indirect discrimination on grounds of 
ethnic origin within the meaning of Article 2(2)(b) of Directive 2000/43/EC. 
5. The GlBG is intended to transpose Directive 2000/43/EC into Austrian law, 
it being understood that that law refers to ‘ethnicity’ rather than ‘racial or ethnic 
origin’. That concept must, in principle, have the same meaning as that of the 
concepts of ‘racial or ethnic origin’ in EU law. 
6. Directive 2000/43/EC does not contain a definition of the term ‘racial or 
ethnic origin’. According to the case-law of the Court of Justice of the European 
Union, the concept of ‘ethnicity’ has its basis in the idea of societal groups 
marked in particular by common nationality, religious faith, language, cultural and 
traditional origins and backgrounds (judgment of 16 July 2015, CHEZ 
Razpredelenie Bulgaria, C-83/14, EU:C:2015:480, paragraph 46), whereby the list 
of those criteria is not exhaustive (judgment of 6 April 2017, Jyske Finans, 
C-668/15, EU:C:2017:278, paragraph 18). However, ethnic origin cannot be 
determined on the basis of a single criterion, but, on the contrary, is based on a 
whole number of factors, some objective and others subjective (judgment of 
6 April 2017, Jyske Finans, C-668/15, EU:C:2017:278, paragraph 19). 
7. In CHEZ Razpredelenie Bulgaria, the Court of Justice of the European 
Union also held that the principle of equal treatment to which Directive 
2000/43/EC refers, applies not to a particular category of persons but by reference 
to the grounds mentioned in Article 1 thereof, so that that principle is intended to 
benefit also persons who, although not themselves a member of the race or ethnic 
group concerned, nevertheless suffer less favourable treatment or a particular 
disadvantage on one of those grounds (see, by analogy, judgment in Coleman, 
C-303/06, EU:C:2008:415, paragraphs 38 and 50; judgment of 16 July 2015, 
CHEZ Razpredelenie Bulgaria, C-83/14, EU:C:2015:480, paragraph 56). 
8. Under Article 2(2)(b) of Directive 2000/43/EC, indirect discrimination shall 
be taken to occur where an apparently neutral provision, criterion or practice 
would put persons of a racial or ethnic origin at a particular disadvantage. 
According to the case-law of the Court of Justice of the European Union, the 
words ‘particular disadvantage’ used in that provision must be understood as 
meaning that it is particularly persons of a given ethnic origin who are at a 
disadvantage because of the measure at issue. The concept of ‘indirect 
discrimination’ within the meaning of that provision is applicable only if the 
allegedly discriminatory measure has the effect of placing a person of a particular 
ethnic origin at a disadvantage (judgments of 16 July 2015, CHEZ Razpredelenie 
Bulgaria, C-83/14, EU:C:2015:480, paragraph 100; of 6 April 2017, Jyske Finans, 
SWIFTSUIT LEGAL TECH 
 
9 
C-668/15, EU:C:2017:278, paragraphs 27 and 31; of 15 November 2018, 
Maniero, C-457/17, EU:C:2018:912, paragraphs 47 and 48; and of 10 June 2021, 
Land Oberösterreich, C-94/20, EU:C:2021:477, paragraph 55). 
9. There is disagreement in the Austrian case-law as to whether, in the light of 
the case-law of the Court of Justice of the European Union just set out, the present 
case still constitutes indirect discrimination on grounds of ethnic origin within the 
meaning of Article 2(2)(b) of Directive 2000/43/EC. It is common ground here 
that the number of students from the province of Vienna who have their main 
residence in the province of Vienna is much greater than that of students from 
other provinces or from other States. 
II. Stay of the proceedings: 
[…]