OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 12 March 2015 ( 1 )

Case C‑83/14

CHEZ Razpredelenie Bulgaria AD

(Request for a preliminary ruling

from the Administrativen sad Sofia-grad, Bulgaria)

‛Directive 2000/43/EC — Principle of equal treatment of persons irrespective of racial or ethnic origin — Indirect discrimination — Wholesale and collective character of a measure — Stigmatising effect — Person who does not belong to the ethnic group discriminated against, but suffers discrimination by association (‘discrimination par association’, ‘discrimination par ricochet’) — Districts inhabited primarily by people belonging to the Roma community — Placing of electricity meters at a height inaccessible for consumers — Justification — Combatting fraud and abuse — Directives 2006/32/EC and 2009/72/EC — Possibility for each final consumer to read individual electricity consumption’

I – Introduction

1. Discussion of discrimination problems sometimes focuses on the specific fate of one individual. That is not the situation in this case, which concerns the prohibition of discrimination based on ethnic origin under EU law. The case does ultimately stem from a complaint lodged by one individual; however, the centre of interest is the wholesale and collective character of measures which affect an entire community and are liable to stigmatise all the members of that community and their social environment.

2. Specifically, it relates to the practice in the Bulgarian town of Dupnitsa — but not only there — of attaching the electricity meters of final consumers in districts inhabited predominantly by Roma at a height of approximately 6 m, thereby making them inaccessible for normal visual checks, whilst elsewhere the same electricity meters are installed at a height of approximately 1.70 m and are thus clearly visible to consumers. The reasons cited for this practice are tampering with electricity meters and illegal electricity extraction, which are apparently especially common in ‘Roma districts’.

3. In my Opinion in Belov ( 2 ) I took a detailed look at this problem for the first time and considered it in the light of the prohibition of discrimination based on ethnic origin under EU law. In that Opinion I also referred to the context of the social exclusion of Roma and the very poor socio-economic conditions in which that community lives in many places in Europe.

4. The present case gives an opportunity to refine those considerations on certain points. It is first necessary to elaborate on the differentiation between direct and indirect discrimination based on ethnic origin. Second, it must be considered whether and to what extent persons who do not themselves belong to the disadvantaged ethnic group can suffer ‘discrimination by association’ (French: ‘discrimination par association’ or ‘discrimination par ricochet’) as a result of the abovementioned practice. In addition, as in Belov, the possible justifications for collective measures with stigmatising character will be at issue.

5. In the present case there are no problems of jurisdiction or admissibility like those arising in Belov ( 3 ) because on this occasion the referring Bulgarian authority is without any doubt a court or tribunal within the meaning of Article 267 TFEU.

II – Legislative framework

A – EU law

6. The framework for this case in EU law is formed by Article 21 of the Charter of Fundamental Rights and by Directive 2000/43/EC. ( 4 ) Reference should also be made to Directives 2006/32/EC ( 5 ) and 2009/72/EC, ( 6 ) which contain rules on the internal market in electricity and on energy end-use efficiency.

1. Directive 2000/43

7. The purpose of Directive 2000/43, according to Article 1 thereof, is as follows: ‘to lay 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.’

8. Article 2 of Directive 2000/43 includes this following definition: ‘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. 3. Harassment shall be deemed to be discrimination within the meaning of paragraph 1, when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States. …’

9. Article 3 defines the scope of Directive 2000/43 as follows: ‘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. …’

10. Article 8(1) of Directive 2000/43, which concerns burden of proof, provides: ‘Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.’

11. Lastly, reference should be made to recital 16 in the preamble to Directive 2000/43: ‘It is important to protect all natural persons against discrimination on grounds of racial or ethnic origin. Member States should also provide, where appropriate and in accordance with their national traditions and practice, protection for legal persons where they suffer discrimination on grounds of the racial or ethnic origin of their members.’

2. The directives on the internal market in electricity and on energy end-use efficiency

12. Directive 2006/32 sought to increase energy end-use efficiency in the Member States through various measures, including energy efficiency improvement measures for final consumers. Recital 29 read as follows: ‘In order to enable final consumers to make better-informed decisions as regards their individual energy consumption, they should be provided with a reasonable amount of information thereon and with other relevant information … In addition, consumers should be actively encouraged to check their own meter readings regularly.’

13. In addition, Article 13(1) of Directive 2006/32 provided: ‘Member States shall ensure that, in so far as it is technically possible, financially reasonable and proportionate in relation to the potential energy savings, final customers for electricity, natural gas, district heating and/or cooling and domestic hot water are provided with competitively priced individual meters that accurately reflect the final customer’s actual energy consumption and that provide information on actual time of use. …’

14. Directive 2009/72 contains common rules for the generation, transmission, distribution and supply of electricity and lays down the rules relating to the organisation and functioning of the electricity sector. Under Article 3(7) of that directive, Member States must ‘take appropriate measures to protect final customers’, which, as regards household customers at least, include those measures set out in Annex I to the directive.

15. According to paragraph 1 of Annex I (‘Measures on consumer protection’) to Directive 2009/72, ‘the measures referred to in Article 3 [of the directive] are to ensure that customers: … (h) have at their disposal their consumption data …; [and] (i) are properly informed of actual electricity consumption and costs frequently enough to enable them to regulate their own electricity consumption. ... Due account shall be taken of the cost-efficiency of such measures. No additional costs shall be charged to the consumer for that service; …’

B – Bulgarian law

16. The Law on protection against discrimination ( 7 ) (ZZD) was adopted in Bulgaria to transpose a number of acts of the European Union, in particular Directive 2000/43. Article 4 of the ZZD provides: ‘1. All direct or indirect discrimination on grounds of gender, race, nationality, ethnicity, human genome, citizenship, origin, religion or belief, education, convictions, political allegiance, personal situation or social status, disability, age, sexual orientation, marital status, financial situation or on any other ground established in a law or in an international treaty to which the Republic of Bulgaria is a party shall be prohibited. 2. Direct discrimination shall be taken to occur whenever, on the basis of characteristics mentioned in paragraph 1, one person is treated less favourably than another is, has been or would be treated in comparable or similar conditions. 3. Indirect discrimination shall be taken to occur where, on the basis of characteristics mentioned in paragraph 1, one person is placed in a less favourable position compared with other persons by an apparently neutral provision, criterion or practice, unless that provision, criterion or practice is objectively justified having regard to a legitimate aim and the means of achieving that aim are appropriate and necessary.’

17. Furthermore, Paragraph 1 of the Supplementary Provisions of the ZZD states: ‘For the purposes of this law … 7. “unfavourable treatment” means: any act, action or omission which directly or indirectly prejudices rights or legitimate interests; 8. “on the basis of characteristics mentioned in Article 4(1)” means: on the basis of the actual — present or past — or the presumed existence of one or more such characteristics possessed by the person discriminated against or a person connected with or assumed to be connected with that person, if such connection is the basis for the discrimination; …’

18. In addition, the request for a preliminary ruling mentions other national provisions from the ZZD and the Law on energy ( 8 ) (ZE), which will not be reproduced here.

III – Facts and main proceedings

A – Facts

19. Anelia Georgieva Nikolova works as a sole trader in the Bulgarian town of Dupnitsa. She runs a food shop there in the ‘Gizdova mahala’ district, which is supplied with electricity by CHEZ Razpredelenie Bulgaria. ( 9 )

20. The Gizdova mahala district is known as the biggest Roma district of Dupnitsa. The population of that district belongs predominantly to the Roma ethnic group. That is not true of Ms Nikolova, however. ( 10 )

21. In 1999 and 2000 the electricity meters ( 11 ) for all consumers now supplied by CHEZ in that district were attached to the electricity poles for the overhead network at a height of approximately 6 m, which is inaccessible for normal visual checks. It is not disputed that this practice ( 12 ) occurs only in districts which have a predominantly Roma population and is applied there to all customers irrespective of whether or not they belong to that ethnic group themselves. The reasons given for that practice are the large number of cases of tampering with electricity meters and the frequent occurrence of unlawful connections to the electricity network in those districts. Elsewhere, on the other hand, electricity meters for all consumers — including those belonging to the Roma ethnic group — are placed at a freely accessible height of approximately 1.70 m, usually in the consumer’s home, on the outside walls of their building or on surrounding fences.

22. To allow consumers to make at least an indirect visual check even of electricity meters placed at a great height, CHEZ undertook in its General Conditions to make available, free of charge and within three days of a written request by the consumer, a special vehicle with a lifting platform, using which CHEZ employees are able to read the electricity meters. However, this offer has not been taken up by any consumers so far. The other option available to the consumer is to have an inspection meter installed in his home, for which a fee has to be paid. There is no other possibility for consumers to make a visual check in these districts.

23. According to the order for reference, there are reports in the media about a new type of electricity meter with the possibility of automatic meter-reading which, in addition, signals attempts at tampering to the electricity undertaking.

B – The main proceedings

24. On 5 December 2008, Ms Nikolova made a complaint to the Bulgarian Commission for Protection against Discrimination ( 13 ) (KZD) regarding the discriminatory character of the contested practice by CHEZ. In her complaint she alleged ‘direct discrimination’ on the ground of her ‘nationality’. ( 14 ) In addition, she argued that her electricity bills were excessive compared to her actual consumption and suspected that CHEZ applied an excessively high consumption value in order to compensate for losses elsewhere in the district in question. Lastly, Ms Nikolova pointed out that the positioning of the electricity meters in a location inaccessible for normal visual checks made it impossible for her to read her meter or to check her electricity bills.

25. According to a technical report commissioned by the referring court, there was neither tampering nor an unlawful connection in the case of Ms Nikolova.

26. By decision of 6 April 2010, the KZD found that the contested practice constituted ‘indirect discrimination’ based on the characteristic of ‘nationality’ which could not be justified. However, upon an application by CHEZ, that decision was set aside by the Varhoven administrativen sad ( 15 ) by judgment of 19 May 2011, in particular because it was not clear in relation to which other nationality Ms Nikolova had suffered discrimination. The case was referred back to the KZD for re-examination.

27. On 30 May 2012, the KZD adopted a fresh decision on the case and found ‘direct discrimination’ on the basis of Ms Nikolova’s ‘personal situation’. As grounds, the KZD stated that because of the location of her place of business Ms Nikolova had been treated less favourably by CHEZ than other customers whose electricity meters had been installed in a location accessible for visual checks. The KZD ordered CHEZ to bring that infringement to an end, to restore the equal treatment of Ms Nikolova and to refrain from such discriminatory practices in future.

28. CHEZ lodged another appeal against that decision, which is now being heard by the Administrativen sad Sofia-grad, ( 16 ) the referring court. In the main proceedings, CHEZ is supported by the Bulgarian State Regulatory Commission for Energy and Water ( 17 ) (DKEVR).

29. The referring court takes the view that this case should not be considered from the point of view of ‘nationality’ or ‘personal situation’, but having regard to the ‘protected characteristic “ethnicity”‘. The court tends towards the view that Ms Nikolova suffered direct discrimination on ethnic grounds. In the opinion of that court, Ms Nikolova’s membership of the Roma ethnic group stems from the fact that she ‘identifies’ herself with the Roma of her district.

IV – Reference for a preliminary ruling and procedure before the Court

30. By order of 5 February 2014, received by the Court on 17 February 2014, the Administrativen sad Sofia-grad submitted a reference to the Court for a preliminary ruling on no less than ten extremely detailed questions, which specifically read as follows: 1. Is the expression ‘ethnic origin’ used in Directive 2000/43/EC and in the Charter of Fundamental Rights of the European Union to be interpreted as covering a compact group of Bulgarian citizens of Roma origin such as those living in the ‘Gizdova mahala’ district of the town of Dupnitsa? 2. Does the expression ‘comparable situation’ within the meaning of Article 2(2)(a) of Directive 2000/43 apply to the circumstances of the present case, in which the commercial measuring instruments are positioned in Roma districts of the town at a height of between 6 and 7 metres whereas in other districts not densely populated by Roma they are generally positioned lower than 2 metres above ground? 3. Is Article 2(2)(a) of Directive 2000/43 to be interpreted so that the positioning of commercial measuring instruments in Roma districts of town at a height of between 6 and 7 metres constitutes less favourable treatment of the population of Roma origin compared to the population of other ethnic origin? 4. On the assumption that there has been less favourable treatment, does that treatment, pursuant to the abovementioned provision, result in the circumstances of the main case in whole or in part from the fact that it affects the Roma ethnic group? 5. Under Directive 2000/43 is a national provision such as Paragraph 1(7) of the Supplementary Provisions of the Zakon za zashtita ot diskriminatsia (Law on protection against discrimination; ‘the ZZD’) — according to which any act, action or omission which directly or indirectly prejudices rights or legitimate interests constitutes ‘unfavourable treatment’ — permissible? 6. Is the expression ‘apparently neutral practice’ within the meaning of Article 2(2)(b) of Directive 2000/43 applicable to the practice of CHEZ Razpredelenie Bulgaria AD of positioning commercial measuring instruments at a height of between 6 and 7 metres? How should the phrase ‘apparently neutral’ be interpreted — as meaning that the practice is obviously neutral or that it only seems neutral at first glance, in other words, that it is ostensibly neutral? 7. For a finding that there has been indirect discrimination within the meaning of Article 2(2)(b) of Directive 2000/43, is it necessary that the neutral practice places persons in a particularly less favourable position on the ground of racial or ethnic origin, or is it sufficient that that practice affects only persons of a specific ethnic origin? In that context, under Article 2(2)(b) of Directive 2000/43 is a national provision such as Article 4(3) of the ZZD — according to which there is indirect discrimination where a person is placed in a more unfavourable position because of the characteristics set out in Article 4(1) (including ethnicity) — permissible? 8. How should the expression ‘particular disadvantage’ within the meaning of Article 2(2)(b) of Directive 2000/43 be interpreted? Does it correspond to the expression ‘less favourable treatment’ used in Article 2(2)(a) of Directive 2000/43, or does it cover only serious, obvious and particularly significant cases of unequal treatment? Does the practice described in the present case amount to a particular disadvantage? If there has been no serious, obvious and particularly significant case of putting someone in a disadvantageous position, is that sufficient to conclude that there has been no indirect discrimination (without examining whether the practice in question is justified, appropriate and necessary in view of attaining a legitimate aim)? 9. Are national provisions such as Article 4(2) and (3) of the ZZD — which for direct discrimination require ‘less favourable treatment’ and for indirect discrimination require ‘placing in a less favourable position’ but which do not, unlike the directive, make a distinction according to the degree of seriousness of the unfavourable treatment concerned — permissible under Article 2(2)(a) and (b) of Directive 2000/43? 10. Is Article 2(2)(b) of Directive 2000/43 to be interpreted as meaning that the practice of CHEZ Razpredelenie Bulgaria AD in question is objectively justified from the point of view of ensuring the security of the electricity transmission network and the due recording of electricity consumption? Is this practice also appropriate in the light of the defendant’s obligation to ensure that consumers have free access to the electricity meter readings? Is that practice necessary when, according to media publications, there are other technically and financially feasible means of securing the commercial measuring instruments?

31. In the written procedure before the Court, written observations were submitted by CHEZ, Ms Nikolova, the KZD, the Bulgarian Government and the European Commission. Except for the KZD, the same parties were also represented at the hearing on 13 January 2015.

V – Assessment

32. The situation in the main proceedings has been examined by the authorities and courts hearing the case at national level from various angles, in particular having regard to discrimination on grounds of ‘nationality’ and ‘personal situation’, which is prohibited in national law. From the point of view of EU law, however, the only question arising is whether a practice like the contested practice in the main proceedings constitutes discrimination based on ethnic origin within the meaning of Directive 2000/43. The request for a preliminary ruling made to the Court by the Administrativen sad Sofia-grad ultimately seeks only to clarify this question.

33. It is appropriate to sort the comprehensive list of questions asked by the referring court thematically, drawing a distinction between the scope of the prohibition of discrimination (see immediately below, section A), the concept of discrimination (see further below, section B) and the grounds for a possible justification for the contested practice (see below, section C).

A – The scope of the prohibition of discrimination based on ethnic origin

34. It must be considered, first of all, whether a situation like that in the main proceedings falls within the scope of the prohibition of discrimination based on ethnic origin under Directive 2000/43.

35. As the referring court acknowledges, it has not devoted a separate question to this point, aside from a rather cryptic reference to a ‘compact group of Bulgarian citizens of Roma origin’ in the first question. According to the grounds of the request for a preliminary ruling, however, the referring court expects the Court to make a clear statement as to whether a practice like the contested practice in the main proceedings is covered by the prohibition of discrimination.

1. Material scope

36. CHEZ is the only party to the proceedings to hold the view that the contested practice does not fall within the material scope of Directive 2000/43 at all.

37. This argument, on which the undertaking incidentally previously relied in Belov, does not hold.

38. As part of the supply of goods and services which are available to the public, it is not disputed that electricity supply is one of the areas in which discrimination based on racial or ethnic origin is prohibited under Article 3(1)(h) of Directive 2000/43.

39. As I have already explained in detail in Belov, ( 18 ) moreover, it cannot be said that electricity supply is non-discriminatory unless the overall conditions under which consumers are supplied with electricity are also non-discriminatory. The provision of electricity meters is part of these overall conditions under which CHEZ supplies its customers with electricity.

40. Furthermore, the regulation of the internal market in electricity including the provision of information to final customers on their electricity consumption by means of electricity meters is one of the areas for which the EU legislature is competent. The condition at the beginning of Article 3(1), under which Directive 2000/43 applies only within the limits of the powers conferred upon the European Union, is thus also fulfilled. ( 19 )

41. Accordingly, the contested practice falls within the material scope of Directive 2000/43.

2. Personal scope

42. The personal scope of Directive 2000/43, to which I will now turn, is much more interesting than its material scope in the present case. The referring court touches on this issue in its first question, referring to a ‘compact group of Bulgarian citizens of Roma origin’ and adding that in Bulgaria the Roma have the status of an ethnic minority.

43. From a European perspective, it should be noted that, as has been recognised, the Roma are to be regarded as a separate ethnic group who also require special protection. The European Court of Human Rights (ECHR) in particular has ruled to this effect. ( 20 ) Its case-law must be taken into consideration in the interpretation and application of the prohibition of discrimination based on racial and ethnic origin under EU law, which is now enshrined in primary law in Article 21 of the Charter of Fundamental Rights. ( 21 )

44. The mere finding that the Roma are a separate ethnic group is, however, not sufficient in itself to provide a satisfactory answer to the question of the personal scope of Directive 2000/43 in the present case. It must still be examined whether and to what extent a person in Ms Nikolova’s position may rely on the prohibition of discrimination based on ethnic origin in circumstances like those in the main proceedings.

a) Can the applicant be regarded as being in the Roma ethnic group?

45. The starting point for consideration should be that under EU law all members of an ethnic group are protected against any discrimination based on their ethnic origin.

46. However, a particular feature of the case of Ms Nikolova, whose complaint initiated the main proceedings, is that the applicant herself expressly declared to the Court that she does not belong to the Roma ethnic group.

47. Although it may be a matter solely for the referring court to assess the facts in the case and to apply the law — including EU law — to them, it is the task of the Court to provide the referring court with any guidance that may be useful to it in resolving the dispute in the main proceedings. ( 22 )

48. It should be stressed in this connection that it cannot be rashly inferred from Ms Nikolova’s conduct in the main proceedings and in particular from her complaint of ethnic discrimination that she herself should be classified in the Roma ethnic group.

49. It may be that Ms Nikolova ‘identifies’ herself with the Roma in Gizdova mahala in so far as, like all the other inhabitants of that district, she is affected by the contested practice and suffers from its stigmatising effect. However, this does not necessarily mean in itself that Ms Nikolova would classify herself in the Roma ethnic group. Instead, in the main proceedings Ms Nikolova does nothing more than defend herself before the competent national authorities against the same practice that also affects the Roma in the Gizdova mahala district. It is not possible to make any inferences from this alone as to her ethnicity.

50. In case of doubt, self-identification by the individual concerned continues to be the determining factor in assessing whether or not he or she is to be regarded as a member of the ethnic group in question. ( 23 )

51. Subject to the findings to be made by the referring court, I will therefore assume hereinafter — on the basis of the statements made by Ms Nikolova herself before this Court — that Ms Nikolova is not to be classified in the Roma ethnic group.

b) Can the applicant be considered to have suffered ‘discrimination by association’?

52. The mere fact that the applicant herself apparently does not belong to the Roma ethnic group does not in any way preclude reliance by her on the prohibition of discrimination based on ethnic origin in a situation like the main proceedings.

53. It should be stated that neither Article 21 of the Charter of Fundamental Rights nor many language versions of Directive 2000/43 restrict the application of the principle of equal treatment to persons who suffer discrimination based on ‘their’ (meaning ‘their own’) racial or ethnic origin. ( 24 ) Rather, the relevant EU provisions are formulated in more general terms and prohibit any discrimination based on racial or ethnic origin per se.

54. This small but subtle difference in wording is not by chance. It has great significance for the interpretation and the application of the prohibition of discrimination, whose scope cannot be defined restrictively. ( 25 ) In accordance with the general objective of laying down a framework for combating discrimination (Article 1 of Directive 2000/43), this open-ended wording also permits persons who merely suffer ‘discrimination by association’ to rely on the prohibition of discrimination.

55. Protection against this particular form of discrimination, which is referred to very aptly in French as ‘discrimination par association’ or ‘discrimination par ricochet’, has already been recognised by the Court on one occasion — in Coleman — with respect to disability. ( 26 )

56. The principles from Coleman can be readily applied to the present case even though on that occasion Directive 2000/43 was not at issue, but the related Directive 2000/78. ( 27 ) These two sister directives are substantively similar on the relevant points at issue here and are ultimately an expression of the principle of equality, which is one of the general principles of EU law, as recognised in Article 21 of the Charter of Fundamental Rights. ( 28 )

57. ‘Discrimination by association’ is suffered, first and foremost, by those who are in a close personal relationship with a person possessing one of the characteristics referred to in Article 21 of the Charter of Fundamental Rights and in the anti-discrimination directives. For example, Coleman concerned an employee who suffered hostility in the workplace because of her son’s disability. ( 29 )

58. However, the existence of such a personal link is certainly not the only conceivable criterion for regarding a person as suffering ‘discrimination by association’. The fact that the measure at issue is discriminatory by association may be inherent in the measure itself, in particular where that measure is liable, because of its wholesale and collective character, to affect not only the person possessing one of the characteristics mentioned in Article 21 of the Charter of Fundamental Rights and in the anti-discrimination directives, but also — as a kind of ‘collateral damage’ — includes other persons.

59. Suppose that a group of six people wanted to have lunch together in a restaurant and were not given a table there because of the skin colour of one of them. It is clear that this racist incident should be regarded not just as discrimination against the one person who is primarily affected, but the other five people also suffer ‘discrimination by association’. On the basis of the abovementioned racist motive none of them are served at the restaurant. It makes no real difference whether they are members of a family, a group of friends or businesspeople who might be meeting for the first time on this occasion.

60. The situation is very similar in the present case. The contested practice by CHEZ is directed in a wholesale and collective manner at all persons who are supplied with electricity by that undertaking in Gizdova mahala. Should it transpire hereinafter that this practice entails discrimination against the Roma living in that district, ( 30 ) the wholesale and collective character of the practice means that inevitably ‘discrimination by association’ is also suffered by persons who are not themselves Roma. They have to suffer the stigmatising effect of that wholesale and collective measure just like the Roma. They too are then exposed to a discriminatory, humiliating living environment, to which the contested practice contributes. ( 31 )

61. Consequently, Ms Nikolova, as the applicant in the main proceedings, may rely on the prohibition of discrimination based on ethnic origin even though she herself does not belong to the Roma ethnic group. ( 32 )

c) Can the applicant rely on the prohibition of discrimination in her capacity as a businesswoman?

62. Last but not least, it must be considered whether Ms Nikolova’s reliance on the prohibition of discrimination may be precluded by the fact that she apparently does not live in the Gizdova mahala district, but merely runs a food shop there.

63. Even though neither the referring court nor the parties to the proceedings attach great importance to this fact, it should be mentioned that the protection granted to undertakings as a fundamental right does not necessarily extend as far as that enjoyed by individuals.

64. Nevertheless, it is by no means precluded that persons who are active as businesspeople can also rely on the prohibition of discrimination based on ethnic origin. Neither Article 21 of the Charter of Fundamental Rights nor Directive 2000/43 contains a provision or even merely an indication to the effect that private individuals are intended to be protected against discrimination only outside the scope of their economic activity.

65. On the contrary, it is clear that economically active persons are also exposed in various ways to the risk of suffering discrimination based on certain personal characteristics, in particular on the grounds listed in Article 21 of the Charter of Fundamental Rights and in the anti-discrimination directives. Consequently, the prohibition of discrimination, as given substance in Directive 2000/43, expressly also applies in employment and occupation, as can be seen not least from the definition of its scope in Article 3(1)(a) to (d) of the directive. Even legal persons can enjoy protection against discrimination where necessary. ( 33 )

66. In this case, it should also be stated that the applicant runs her food shop in Gizdova mahala as a sole trader. Subject to the factual findings made by the referring court, it must therefore be assumed that as a rule Ms Nikolova is personally present in the shop, works there and, in her capacity of an economically active natural person, is thus exposed to the contested practice — and its stigmatising effect — in a similar way to people living in that district.

67. Against this background, the fact that the applicant is affected by the contested practice only in her capacity as a sole trader cannot preclude the application of the prohibition of discrimination to the present case.

3. Interim conclusion

68. All in all, a situation like that in the main proceedings therefore falls within the scope of the prohibition of discrimination based on ethnic origin under EU law, as laid down in Directive 2000/43.

B – The concept of discrimination

69. As a second point, it must be examined whether the contested practice results in discrimination — or more accurately a difference in treatment — based on ethnic origin. As shown by its second to ninth questions, the referring court is uncertain what legal requirements are to be imposed for a finding of such discrimination and whether direct, or indirect, discrimination must possibly be taken to exist.

70. The parties to the proceedings naturally disagree on this point. Whilst Ms Nikolova considers there to be direct discrimination, the Bulgarian Government and the European Commission tend towards the view that there is indirect discrimination. The KZD merely refers to its decision in the main proceedings, whilst CHEZ, in whose view Directive 2000/43 is not applicable at all, makes general statements on the concept of discrimination.

71. The distinction between direct and indirect discrimination is legally significant primarily because the possible justifications vary depending on whether the fundamental difference in treatment is directly or indirectly linked to racial or ethnic origin. ( 34 )

72. The possible justifications for an indirect difference in treatment are framed in very general terms in Article 2(2)(b) of Directive 2000/43 (‘objectively justified by a legitimate aim’), whereas a direct difference in treatment is justifiable only ‘in very limited circumstances’, ( 35 ) in particular by ‘genuine and determining occupational requirements’ within the meaning of Article 4 of the directive (which are not relevant in the present case).

73. It follows from this that the possible objectives which may be relied on in order to justify a direct difference in treatment based on racial or ethnic origin are fewer than those capable of justifying an indirect difference in treatment, even though the proportionality test requirements are essentially the same.

74. The referring court must itself assess whether circumstances like those in the main proceedings result in a finding of direct or indirect discrimination, since the establishment and assessment of the facts and the application of the law to the individual case are matters for it. ( 36 ) The Court may, however, provide the referring court with all the guidance it needs to facilitate its decision in the main proceedings. ( 37 ) In view of the doubts expressed in this regard in the order for reference and in the light of the divergences in the case-law of the Bulgarian courts described therein, the Court should certainly provide such guidance.

1. Preliminary remark: No need for prejudice to rights or legitimate interests

75. First of all, it must be considered briefly whether a finding of discrimination based on ethnic origin may be made dependent on rights or legitimate interests being prejudiced directly or indirectly. The referring court raises this point in its fifth question. The background is that, under Paragraph 1(7) of the Supplementary Provisions of the ZZD, ‘unfavourable treatment’ exists only where rights or legitimate interests are prejudiced directly or indirectly.

76. As I have already explained in Belov, ( 38 ) neither a finding of direct discrimination nor a finding of indirect discrimination requires any form of infringement of rights or interests defined in law. The only material factor is that there is less favourable treatment or a disadvantage, irrespective of the subject of that treatment or disadvantage, whether rights or interests are infringed and, if so, which rights or interests. What is more, according to the Court’s case-law, discrimination is not even dependent on a specific victim of discrimination. ( 39 )

77. For discrimination to have occurred, it is therefore sufficient that a person or group of persons is treated less favourably than another is, has been or would be treated. The imposition of additional conditions not provided for in Directive 2000/43 is not compatible with the high level of protection desired by the EU legislature.

78. Consequently, the fifth question must be answered in the negative.

79. Merely for the sake of completeness, I would add that the present case quite clearly concerns rights and legitimate interests of persons living in Gizdova mahala in connection with their electricity supply. As final customers they should, under EU law, have their consumption data at their disposal and be properly informed of actual electricity consumption and costs frequently enough to enable them to regulate their own electricity consumption. ( 40 ) This legally protected interest of consumers in Gizdova mahala is prejudiced by a practice like the contested practice in the main proceedings.

2. Direct discrimination

80. Under Article 2(2)(a) of Directive 2000/43, direct discrimination is to 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. ( 41 )

81. There are no specific indications either in the order for reference or in the observations submitted by the parties to the proceedings to suggest that the contested practice was chosen specifically on the basis of the ethnic origin of the inhabitants of Gizdova mahala or is connected with a factor which is inseparably linked to their ethnic origin.

82. Of course, a finding of direct discrimination based on ethnic origin does not necessarily require the contested practice to be ethnically motivated. Direct discrimination must also be taken to exist where a measure is apparently neutral, but actually affects or is capable of affecting only persons possessing a certain characteristic mentioned in Article 21 of the Charter of Fundamental Rights and in the anti-discrimination directives.

83. Thus, the Court has already had occasion, with respect to other prohibitions of discrimination, to regard a reference to pregnancy as direct discrimination on grounds of sex, because it is capable of affecting women only, ( 42 ) and to classify rules connected with entitlement to an old-age pension as direct age discrimination because they are capable of having an effect only for the benefit or to the detriment of persons of a certain age. ( 43 ) Similarly, the Court takes direct discrimination on grounds of sexual orientation to exist where a benefit provided for couples is withheld from same-sex couples who have entered into a marriage-like registered life partnership and do not themselves have access to the institution of marriage. ( 44 )

84. No such circumstances exist in this case, however.

85. The contested practice does occur de facto only in districts like Gizdova mahala which are inhabited predominantly by a certain ethnic group. However, it certainly does not affect only persons belonging to that ethnic group, in this case Roma, but is also applied to all other customers of the electricity undertaking — like Ms Nikolova — who reside in those districts, irrespective of their ethnic origin. Conversely, Roma are not affected by the contested practice if they live in other districts or areas that are inhabited predominantly by other communities.

86. As far as can be seen, the contested practice therefore affects consumers whose electricity is supplied by CHEZ in the Gizdova mahala district solely by reason of their status as local residents. It is not as inextricably linked to their ethnic origin as pregnancy is to a person’s sex, as entitlement to an old-age pension is to a person’s age or as living in a registered partnership is to their sexual orientation. ( 45 )

87. Accordingly, it would appear that there is not sufficient evidence of direct discrimination in the present case. ( 46 ) The mere fact that the contested practice occurs de facto only in districts inhabited predominantly by Roma, with the result that it always has a particular impact on members of that ethnic group, is not sufficient, in my view, for a reversal of the burden of proof for the purposes of Article 8(1) of Directive 2000/43 with a view to accepting the existence of direct discrimination based on ethnic origin.

88. It must still be examined, of course, whether this very fact gives grounds for the existence of indirect discrimination.

3. Indirect discrimination

a) The definition of indirect discrimination under Directive 2000/43

89. Under Article 2(2)(b) of Directive 2000/43, indirect discrimination is to 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.

90. It is apparent from its sixth, seventh and eighth questions that the referring court seems to encounter some difficulties in understanding two elements of this definition of indirect discrimination in EU law; those difficulties appear to be connected, at least in part, with the particular features of the Bulgarian language version of Directive 2000/43 and concern, first, the term ‘apparently’ and, second, the words ‘put ... at a particular disadvantage’.

91. In accordance with the general objective of Directive 2000/43, which is to ensure protection against discrimination as effectively as possible and to achieve the highest possible level of protection, ( 47 ) neither of these two parts of the sentence may be construed as limiting the concept of discrimination.

92. Thus, the term ‘apparently’ ( 48 ) in Article 2(2)(b) of Directive 2000/43 can only be interpreted as referring to an ostensibly or prima facie neutral provision, criterion or practice. On the other hand, that term cannot simply mean that the provision, criterion or practice in question must be manifestly neutral, as the referring court seems to think. This would have the highly illogical consequence that no finding of indirect discrimination could be made wherever the provision, criterion or practice in question transpires to be ‘less neutral’ than it may appear at first sight. This would possibly create a gap in the protection against discrimination which cannot under any circumstances be intended.

93. As regards the wording ‘put ... at a particular disadvantage’ in Article 2(2)(b) of Directive 2000/43, it must likewise not be misunderstood as meaning that only a particularly serious disadvantage for members of a racial or ethnic group would give grounds for a finding of indirect discrimination. Instead, that wording means that indirect discrimination must be taken to exist wherever an apparently neutral provision, criterion or practice affects certain persons — members of a certain racial or ethnic group — more adversely than others. ( 49 ) In other words, the existence of indirect discrimination is not contingent on whether the disadvantage suffered by persons with a certain racial or ethnic origin is particularly serious. The seriousness of the disadvantage can be relevant at most in considering the justification for the measure at issue: the more serious the disadvantage, the higher the requirements for the justification.

b) The application of the definition to the present case

94. According to the referring court, the contested practice is applied solely in districts that are inhabited predominantly by Roma. This has also been confirmed by all the parties to the proceedings. It is therefore evident that the contested practice has a particular impact on members of that ethnic group.

95. It is also clear that such a practice imposes a burden affecting the consumers concerned in two respects. First, it makes it virtually impossible or at least excessively difficult for those consumers to make visual checks of the relevant electricity meters. If they wish to be informed on an ongoing basis of their own electricity consumption, they have no other option but to have inspection meters installed in their homes, creating additional expenditure for them. ( 50 ) Second, the contested practice is liable to have a stigmatising effect, as the impression may be created among the public that the consumers concerned have tampered with their electricity meters or they have unlawfully connected to the electricity network.

96. The fact that predominantly Roma have to suffer the disadvantages associated with the contested practice indicates a difference in treatment of consumers in the Gizdova mahala district in relation to other areas which is connected indirectly with their ethnic origin.

97. The existence of this indirect difference in treatment cannot be denied by reference to the equal treatment of all consumers by CHEZ within the Gizdova mahala district.

98. The contested practice certainly affects all electricity customers resident in that district in the same way, irrespective of whether or not they belong to the Roma ethnic group. However, the crucial factor in the relevant discrimination test is not the comparison between persons who all suffer the same disadvantage but the comparison between persons who are put at a disadvantage, on the one hand, and persons who are not put at a disadvantage, on the other.

99. A simple comparison with electricity customers outside that district shows that the contested practice in connection with the supply of electricity results in a difference in treatment to the detriment of consumers in Gizdova mahala, ( 51 ) who are predominantly Roma.

100. CHEZ objects that the situation of consumers within and outside the Gizdova mahala district is not comparable and the contested practice cannot therefore give rise to a difference in treatment.

101. This objection must be rejected. It may be that many cases of tampering with electricity meters and unauthorised electricity extraction were recorded in that district, but not elsewhere. Nevertheless, the consumers’ interest in inspecting their electricity meters and in being supplied with electricity without stigmatisation is the same within and outside the district. In this respect at least, all customers supplied by CHEZ are thus in a comparable situation. If necessary, the fact that illegal interference with electricity meters and the electricity network occurs more often in some areas than others can be taken into account with respect to the justification for the contested practice. ( 52 ) This does not affect the comparability of the situations of consumers, however.

c) Can a merely indirect difference in treatment form the basis for a finding of ‘discrimination by association’?

102. Lastly, it is still necessary briefly to consider whether a finding of indirect discrimination is precluded in the present case because Ms Nikolova, as the applicant in the main proceedings, apparently does not belong to the Roma ethnic group herself, but is affected by the contested practice merely as the owner of a food shop in the Gizdova mahala district. The point at issue is thus ultimately whether the fact that the Roma in the Gizdova mahala district are placed at a disadvantage, if connected only indirectly with their ethnic origin, is a sufficient basis for a finding of ‘discrimination by association’ in respect of Ms Nikolova. In other words, it must be clarified whether it is permitted by law to accept the existence of ‘discrimination by association’ in relation to indirect discrimination. ( 53 )

103. CHEZ claims that ‘discrimination by association’ can be taken to exist only in relation to direct discrimination, but not in relation to indirect discrimination.

104. I do not share this view. It may be that the Court has thus far only had the opportunity to consider the problem of ‘discrimination by association’ with reference to a case of direct discrimination. ( 54 ) However, this certainly does not mean that it would have ruled out the existence of ‘discrimination by association’ in the case of indirect discrimination.

105. Structural features of the definition of indirect discrimination under Article 2(2)(b) of Directive 2000/43 which might militate against considering a person to have suffered ‘discrimination by association’ have not been raised by any of the parties to the proceedings, nor are they evident.

106. Furthermore, I think that it is fair to recognise the concept of ‘discrimination by association’ in connection with indirect discrimination in the same way as in connection with direct discrimination.

107. This can be illustrated by an example of a related ground of discrimination which is also mentioned in Article 21 of the Charter of Fundamental Rights. If children of male employees but not children of female employees are entitled to a certain social advantage in an undertaking, such as attending the company nursery, there is direct discrimination based on the sex of the employees. If, on the other hand, children of full-time employees, in contrast with children of part-time employees, are entitled to that advantage, it is a case of indirect discrimination based on the sex of the employees if — as is often the case — the part-time employees are predominantly women, whilst the full-time employees are predominantly men. In both cases, children of the disadvantaged category of employees suffer ‘discrimination by association’. It makes no real difference, with regard to the children, that in the first case there is direct discrimination and in the second case ‘merely’ indirect discrimination based on the sex of the employees.

108. The practice of an insurance company of charging generally higher insurance premiums in certain districts can be indirectly discriminatory within the meaning of Article 21 of the Charter of Fundamental Rights if the population in those districts belongs predominantly to a certain ethnic group, a certain income group or a certain religious community. Even though some inhabitants of the district concerned may not themselves belong to that ethnic group, income group or religious community, they suffer discrimination by association, as the higher insurance premiums are also applied to them.

109. Sufficient account is taken of the specific characteristics of indirect discrimination — and even of those of ‘indirect discrimination by association’ — in these and other cases because the possible objectives which may be relied on in order to justify an indirect difference in treatment are more diverse than those capable of justifying a direct difference in treatment. ( 55 )

4. Interim conclusion

110. All in all, there is therefore an indirect difference in treatment based on ethnic origin in a situation like that in the main proceedings. There is thus a prima facie case of indirect discrimination under Article 2(2)(b) in conjunction with Article 8(1) of Directive 2000/43.

C – The grounds for a possible justification for the contested practice

111. Third and finally, it must be examined whether there is an objective justification for a practice like the contested practice in the main proceedings.

112. Consideration of this issue necessarily presupposes that an indirect difference in treatment based on ethnic origin is taken to exist in the present case in accordance with my above reasoning. ( 56 ) Only in that case has the referring court addressed this subject, moreover, in its tenth question, as is shown in particular by its reference to Article 2(2)(b) of Directive 2000/43.

113. In contrast with direct discrimination based on racial or ethnic origin, for which, for obvious reasons, ( 57 ) there is in principle no justification, ( 58 ) Article 2(2)(b) of Directive 2000/43 provides in relation to indirect discrimination that the provision, criterion or practice in question is lawful if it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, that is to say, proportionate. This wording is consistent with the requirements generally recognised in EU law governing the justification of an indirect difference of treatment. ( 59 )

1. Legitimate aim

114. It is clear from the request for a preliminary ruling and from the written and oral observations before the Court that the contested practice in the Gizdova mahala district — and in certain other areas of Bulgaria — was implemented in response to many cases of tampering with electricity meters and unauthorised electricity extraction. In this connection, CHEZ relies on the need to record its customers’ electricity consumption properly and to ensure the security of the electricity network. In addition, according to CHEZ, it is important to protect consumers’ life and health and their pecuniary interests.

115. Of course, under Article 8(1) of Directive 2000/43 it is for the party relying on such interests in the main proceedings to prove that the contested practice actually pursued the abovementioned objectives and was not rather based on motives relating to the ethnic origin of the majority population of the Gizdova mahala district. At least for the periods in which under national law it was common or even a legal requirement to retain business documents, CHEZ can be expected in this connection to substantiate its decision-making processes leading to the contested practice by means of internal documents. This notwithstanding, CHEZ can also be expected to show specifically whether there is still a real risk at present in the district concerned that there could be substantial tampering with electricity meters and illegal electricity extraction.

116. Assuming CHEZ’s submissions regarding the aims pursued to be correct, then the contested practice is essentially intended to prevent future fraud and abuse and to help to ensure the quality of a financially reasonable electricity supply in the interest of all consumers.

117. Preventing and combatting fraud and abuse and ensuring the security and quality of the energy supply in the Member States are legitimate aims recognised by EU law. ( 60 )

2. Proportionality test

118. It must be examined, however, whether it was proportionate to achieving those aims to attach electricity meters in the district concerned at a height of approximately 6 m. Under Article 2(2)(b) of Directive 2000/43, this would require the contested practice to be ‘appropriate and necessary’ for achieving the legitimate aims pursued.

119. Even if it is possibly true that the reasons for the contested measure are ‘generally known’, ( 61 ) this does not release CHEZ from the obligation of proving that there has been no breach of the principle of equal treatment (Article 8(1) of Directive 2000/43). The degree to which motives for certain conduct by undertakings are known does not say anything about their justification, and in particular their proportionality. ( 62 )

120. The undertaking can also be expected regularly to review the contested practice and to reappraise whether it still satisfies the requirements of the principle of proportionality.

a) ‘Appropriateness’ (suitability) of the contested practice

121. A measure is ‘appropriate’ within the meaning of Article 2(2)(b) of Directive 2000/43 if it is suitable for achieving the legitimate aim pursued, ( 63 ) which means, in the present case, that the measure can actually prevent fraud and abuse and help to ensure the quality of the electricity supply.

122. Tampering and unauthorised electricity extraction are undoubtedly made more difficult if electricity meters and distribution boxes are placed at a height of approximately 6 m, which is normally inaccessible for consumers. Furthermore, prevention of illegal interference with the electricity network by individuals tends to have a positive effect on electricity consumers in general, because it reduces the risk of accident, prevents damage to infrastructure and averts the threat of a general increase in electricity prices to compensate for such damage.

123. It should be noted in passing that the suitability of measures must always be assessed having regard to the aims pursued by them. If, as here, a measure is in response to numerous cases of illegal interference with the electricity supply in a certain district, the suitability of that measure can hardly be made dependent on whether absolutely no cases of fraud or abuse and absolutely no impairment of the quality of the electricity supply occur in future. Instead, such a measure must be regarded as suitable for achieving its legitimate aims if it contributes to an appreciable reduction in the number of cases of illegal interference with the electricity supply. ( 64 )

124. Subject to closer examination by the referring court, a practice like the contested practice in the main proceedings thus appears in principle to be suitable for achieving its aims.

b) Necessity of the contested practice

125. If it is assumed that the contested practice is suitable for preventing fraud and abuse and for ensuring the quality of the electricity supply, the further question arises whether it is also necessary for that purpose.

126. A measure is necessary where the legitimate aim pursued could not have been achieved by equally suitable but more lenient means. It must therefore be explored whether or not there were less restrictive means of preventing tampering with electricity meters and illegal electricity extraction in the districts in question.

127. As I have already stated in detail in Belov, ( 65 ) mere subsequent recourse to civil or criminal measures against the alleged perpetrators of any tampering with electricity meters or illegal connections to the electricity network cannot generally be regarded as an equally suitable means of achieving the legitimate aims pursued in the present case. The same holds for the proposal to attach at a greater height only those electricity meters on which tampering has actually taken place.

128. Unlike in Belov, ( 66 ) however, it does not appear to be unrealistic a priori in the present case to install the electricity meters at a normal height and to take special technical measures to prevent illegal interference. According to the order for reference, there are reports in the media about a ‘new type of electricity meter’ with the possibility of automatic meter-reading, which, in addition, signals attempts at tampering to the electricity undertaking.

129. Such a course of action would undoubtedly be a less restrictive measure vis-à-vis final customers supplied with electricity in districts such as Gizdova mahala. In particular, it would ensure that there is no stigmatisation of the local population there and that all consumers could continue to make a regular visual check of their electricity meters, as appears to be common elsewhere in Bulgaria.

130. Ultimately, however, the referring court itself will have to ascertain whether the use of that ‘new type of electricity meter’ is feasible at a financially reasonable cost or whether it would generate considerable additional costs which would possibly have to be allocated among all electricity consumers. Only if the use of this ‘new type of meter’ is actually a technically and financially feasible measure ( 67 ) could it be cited as a less restrictive but equally suitable alternative to the contested practice of installing electricity meters at a height of approximately 6 m.

c) No undue adverse effects on those concerned as a result of the contested practice

131. Should the contested practice prove to be suitable and necessary for the purpose of achieving the legitimate aims pursued, it would still have to be examined, lastly, whether or not it has undue adverse effects on persons resident in Gizdova mahala. ( 68 ) According to the principle of proportionality, measures which adversely affect a right guaranteed by EU law — here the prohibition of discrimination based on ethnic origin — must not cause disadvantages for the individual which are disproportionate to the aims pursued. ( 69 ) In other words, the legitimate aim pursued must be reconciled as far as possible with the requirements of the principle of equal treatment and the right balance must be found between the different interests involved. ( 70 )

– The stigmatising character of the contested practice

132. It should be borne in mind, first of all, that placing electricity meters at a height of approximately 6 m is a relatively drastic measure, which affects all inhabitants of Gizdova mahala wholesale and across the board, even if they have not been guilty of any illegal interference with the electricity supply. The impression may therefore be created that all or at least many of the inhabitants of Gizdova mahala are embroiled in fraudulent practices, tampering or other irregularities in relation to their electricity supply, which amounts to a general suspicion and encourages stigmatisation of the population in that district. ( 71 )

133. Ultimately, as has already been mentioned, a practice like the contested practice in the main proceedings produces a humiliating environment for the persons concerned, from which predominantly the members of a certain ethnic group have to suffer. ( 72 ) This is contrary to the fundamental values on which the European Union is founded (Article 2 TEU) and also runs counter to the thrust of the anti-discrimination directives (see in particular the prohibition of ‘harassment’ under Article 2(3) of Directive 2000/43).

134. In balancing the conflicting interests in a case like the present one, particular importance must be attached to this factor. Purely economic considerations must take secondary importance and recourse must possibly be had to less cost-efficient measures than installing electricity meters at an inaccessible height of approximately 6 m in order to combat fraud and abuse and to ensure the security and quality of the energy supply.

– The requirements laid down by EU law for the protection of final customers

135. Furthermore — and irrespective of any stigmatisation of the local population — it should be borne in mind that in Directives 2006/32 and 2009/72 the EU legislature expressly stresses the interest of final customers supplied with electricity in being regularly informed about their individual energy consumption. In particular, consumers should be actively encouraged to check their own meter readings regularly. ( 73 ) It is contrary to this objective under EU law to equip consumers with electricity meters but to install them at a height of approximately 6 m which is not accessible for visual checks. ( 74 )

136. EU law certainly does not require the Member States to provide every consumer with a free electricity meter. ( 75 ) However, in a supply area in which fraudulent practices and tampering in connection with the electricity supply have often been identified in the past, consumers have a particular interest in being able to check and monitor their individual electricity consumption regularly. ( 76 )

137. Against this background, the referring court will have to examine whether the offer by CHEZ to provide consumers, at their request, with an inspection meter in their home, for which a fee has to be paid, can constitute adequate compensation for the inaccessibility of their normal electricity meters, which are attached at a height of approximately 6 m. It should be borne in mind, in particular, that the payment of the fee for an inspection meter could deter many consumers from installing one. ( 77 )

138. Admittedly, CHEZ also offers consumers in the districts concerned, in response to an individual request, a visual check by means of a lifting platform provided free of charge. It seems extremely doubtful, however, whether this comparatively cumbersome and laborious procedure can satisfy the abovementioned aim of EU law of encouraging consumers to check their own meter readings regularly. ( 78 ) The use of a special vehicle with a lifting platform, which must be specifically requested before any use, would not realistically seem to be possible for each consumer more than once or twice each year. ( 79 )

3. Interim conclusion

139. In 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 cases Hervis 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).