Reversing the burden of proof : practical dilemmas at the European and national level.
Date: 2015-04-17
Institutions: Directorate-General for Justice and Consumers
Subjects: age discrimination, anti-discriminatory measure, case-law, discrimination based on disability, discrimination on the basis of sexual orientation, equal treatment, gender equality, proof, racial discrimination, religious discrimination, sexual discrimination

Reversing the burden of proof: 
Practical dilemmas  
at the European and national level

Justice
and Consumers

EUROPEAN COMMISSION

Directorate-General for Justice and Consumers

Directorate D — Equality

Unit JUST/D1

European Commission

B-1049 Brussels

Reversing the burden of proof:  
Practical dilemmas  
at the European and national level

European Network of Legal Experts in the Non-discrimination field
Written by Lilla Farkas and Orlagh O’Farrell

European Commission
Directorate-General for Justice and Consumers

Manuscript completed in December 2014

The text of this report was drafted by Lilla Farkas and Orlagh O’Farrell on the authority of the European Network of Legal 
Experts in the non-discrimination field (on the grounds of Race or Ethnic origin, Age, Disability, Religion or belief and Sexual 
Orientation), managed by:

Human European Consultancy   
Maliestraat 7 
3581 SH Utrecht  
Netherlands  
Tel +31 30 634 14 22  
Fax +31 30 635 21 39  
office@humanconsultancy.com  
www.humanconsultancy.com  

Migration Policy Group
Rue Belliard 205, Box 1
1040 Brussels
Belgium
Tel +32 2 230 5930
Fax +32 2 280 0925
info@migpolgroup.com 
www.migpolgroup.com

For more information on publications from the European Network of Legal Experts in the non-discrimination field see: 
http://ec.europa.eu/social/main.jsp?catId=615&langId=en&moreDocuments=yes 

© Photography and design by Ruben Timman / www.nowords.nl 

For any use or reproduction of photos which are not under European Union copyright, permission must be sought directly 
from the copyright holder(s).

Europe Direct is a service to help you find answers 
to your questions about the European Union.

Freephone number (*):
00 800 6 7 8 9 10 11

(*) The information given is free, as are most calls (though some operators, phone 
boxes or hotels may charge you).

This publication was commissioned by the European Commission under the framework programme PROGRESS

(Decision 1672/2006/EC of the European Parliament and the Council, OJ L 315/1 of 15.11.2006).

For more information on PROGRESS see:

http://ec.europa.eu/social/main.jsp?catId=327&langId=en

LEGAL NOTICE

This  document  has  been  prepared  for  the  European  Commission  however  it  reflects  the  views  only  of  the 

authors,  and  the  Commission  cannot  be  held  responsible  for  any  use  which  may  be  made  of  the  information 

contained therein.

More information on the European Union is available on the Internet (http://www.europa.eu).

Luxembourg: Publications Office of the European Union, 2015

ISBN 978-92-79-44625-2

doi: 10.2838/05358

© European Union, 2015

Table of Contents

Executive Summary

Introduction

I.

Origins of the burden of proof provisions

II. 

European law on equal treatment and non-discrimination
II.1.  The gender equality provisions
II.2.  The Equal Treatment and Non-discrimination Directives

III.  Previous studies on the burden of proof 

IV.  Recent judgments of the CJEU relevant to the burden of proof

V. 

Theoretical underpinnings and general considerations
V.1.  General note
V.2.  Discovery of facts: evidence
V.3.  The form of discrimination to be proven
V.4.  Conduct
V.5.  Harm
V.6.  Protected ground
V.7.  Comparators
V.8.  Bias, causation, negligence and intent
V.9.  Prima facie cases: the point of (no) return
V.10.  Justification defence
V.11.  Rebuttal
V.12.  Procedural scheme

VI. 

Implementation in Member States 
VI.1.  General trends and patterns
VI.2.  Application of the burden of proof rules in practice

VII.  Practical concerns relating to the burden of proof rules 

VII.1.  Right to information
VII.2.  Establishing a comparator
VII.3.  The prima facie case
VII.4.  Potentially different standards according to the protected ground
VII.5.  Justification and rebuttal
VII.6.  Different outcomes according to the legal forum used
VII.7. Different outcomes according to whether the litigant is an individual or an NGO

5

9

13

17
18
19

23

25

33
34
36
38
41
41
41
44
45
53
54
56
56

59
60
60

73
74
74
74
76
76
77
78

VIII.  Possible improvements to the implementation of the burden of proof provisions

81

Conclusions
Bibliography

Table of legislation
List of cases

87
91

93
93

3

n ReveRsing the buRden of pRoof nTHEMATIC REPORTNaomi | 1997

THEMATIC REPORTn ReveRsing the buRden of pRoof nExecutive summary

This report examines the background to EU rules on the burden of proof, the development of principles laid down in 

the case law of the Court of Justice of the European Union (CJEU) and their application to the Racial and Employment 

Equality Directives in proceedings before civil and labour courts. Given that the bulk of this case law is related to 

the gender ground, it will necessarily rely on case law relating to gender discrimination. However, the focus will – as 

much as possible – be on judgments on race and ethnic origin, age, disability, religion and sexual orientation.

In cases dealing with discrimination, as in any legal proceedings, the relevant legal burden needs to be discharged 

in order for the case to succeed. If the law places the entire burden of proof throughout the proceedings upon the 

plaintiff, then it will be very hard for him/her to prove that there was discrimination in a particular case when the 

case depends on factors which lie entirely within the employer’s own knowledge.

This evidentiary obstacle was tackled first in relation to indirect discrimination cases seeking the enforcement of a 

Treaty provision governing equal pay between men and women. In cases such as Danfoss and Enderby the CJEU laid 

down the principle of the reversal of the burden of proof, holding that once a prima facie case of discrimination is 

shown, it is for the employer to show that there are objective and non-discriminatory reasons for the difference in pay.

With a view to alleviating the practical problems of proof in discrimination cases, the CJEU and European law have 

played a key role in ensuring a common approach. The reversal of the burden of proof was codified in a directive 

governing the burden of proof in cases of gender discrimination. It was included in subsequent pieces of European 

legislation that broadened the personal and material scope of the non-discrimination principle.

The reversal of the burden of proof has travelled from the practice of the CJEU into that of the European Court 

of Human Rights, where the number of judgments finding discrimination has substantially increased over the last 

decade. This report will not deal with that case law, but will make references to it if and when practicable.

The  report  looks  at  the  origins  of  the  burden  of  proof  provisions  in  the  case  law  of  the  CJEU  and  subsequent 

European legislation. EU rules on the burden of proof have been developed in the course of the evolution of EU law 

in general and EU anti-discrimination law in particular. We consider the key aspects of the interpretation of the rule 

and its application to sex discrimination.

We examine European law relevant to the emergence of the burden of proof provisions as well as norms that codify 

the  way  the  CJEU  has  interpreted  the  reversal  of  the  burden  of  proof.  We  look  at  legislation  on  all  the  grounds 

protected under European law with a specific focus on the Racial and Employment Equality Directives. The reversal 

of the burden of proof rule is formulated as follows: 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. European law regulates the 

reversal of the burden of proof in an identical manner across the protected grounds – except for nationality, where 

no such provision has been enacted. The relevant provisions explicitly state that the reversal of burden of proof rule 

is not to apply to criminal procedures nor to proceedings in which a court or competent body has an investigatory 

or inquisitorial role to ascertain the facts of the case. Finally, these provisions do not prevent Member States from 

introducing rules of evidence which are more favourable to plaintiffs.

The report assesses recent studies that have set out to examine whether the rules requiring a shift in the burden 

of proof function in accordance with their aim, which is to make it easier for a discrimination claim to succeed. The 

2012 report by the European Agency for Fundamental Rights (the Fundamental Rights Agency or FRA) on access to 

5

n ReveRsing the buRden of pRoof nTHEMATIC REPORTjustice in discrimination cases in the EU found that the availability of class or representative group actions in anti-

discrimination law improves access to courts and judgments in favour of plaintiffs. It also found that the right to 

fair proceedings was limited by insufficient application of EU law on shifting the burden of proof to the respondent 

in discrimination proceedings, due inter alia to lack of awareness of the concept on the part of judges or to the fact 

that the national law was not clear about how and when to apply the shift.

We analyse the four recent judgments – Feryn, Kelly, Meister and Accept – that are relevant when discussing the 
reversal of the burden of proof. They all arose in the employment context, more particularly in access to employment 

or vocational training, where particular difficulties occurred because the plaintiffs sought access from the outside 

to information held exclusively by the respondents. In each case, the CJEU was requested to assist national courts 

in the interpretation of the reversal of the burden of proof provisions with a view to establishing a prima facie case 

and assessing respondents’ rebuttal.

Kelly  and  Meister  in  particular  again  raised  the  issue  of  transparency  of  the  employer’s  practices,  a  question 
previously considered by the CJEU in Danfoss, where the lack of transparency of a system of pay was found to 

prevent any form of supervision by the national courts. In Kelly, the lack of transparency was not total, unlike that 

encountered in Danfoss and Meister. The significant difference between equal pay cases on the one hand and Feryn, 

Meister and Accept on the other is, however, that the former relate to a worker who is already ‘in’ and has at least 
limited access to information regarding the employer’s practices, whereas the plaintiffs in the latter group are ‘out’. 
Kelly, Meister and Accept indicate that respondents are well aware of the weakest link in the scheme created by 

the reversal of the burden of proof. Whether by coincidence or conscious design, they base their legal strategies 

on cultivating this shortcoming, namely the reluctance of courts to make disclosure orders if that could lead to the 

disclosure of confidential data relating to identifiable individuals who are not party to the proceedings. While the 

CJEU seems to be on its guard, it will probably be petitioned again to repulse challenges that attempt to prevent the 

supervision by national courts of cases concerning ‘access’.

Should  national  courts  continue  to  refer  cases  on  points  of  evidence,  the  CJEU  may  in  the  future  have  further 

opportunities to interpret the mismatch between the Directives not granting the plaintiffs access to information on 

the one hand and the lack of prohibition to access such information on the other. It is to be seen whether the CJEU 

further interprets the relevant provisions to maintain effective judicial protection against discrimination in a way that 

would aid plaintiffs’ access to information already in the phase leading up to the prima facie case.

The report sets out to provide a full scheme of civil proceedings that are compliant with provisions of European law 

in cases of discrimination. It starts out by looking at the elements of discrimination for which the plaintiffs must 

bring forth evidence, the conduct, the protected ground, comparators, causation, justification defences and rebuttal. 

It seeks to locate as precisely as possible the point in proceedings where the burden shifts. It also looks at the types 

of evidence relevant in cases of discrimination.

The reversal of the burden of proof does not mean that plaintiffs are exempt from convincing the court that they 

have  a  case:  a  set  of  facts  that  call  for  an  explanation.  In  order  to  reverse  the  burden  of  proof  they  must  first 

establish a prima facie case, in other words convince the court of the likeliness or probability that they suffered 

discrimination. Thus, the burden of proof shifts before a court can make a clear finding on causation. The burden of 

proof then moves to the respondent to prove that discrimination played no part in the treatment or effect complained 

of. If the respondent is unable to explain the treatment using objective reasons unrelated to discrimination, he will 

be liable for a breach of non-discrimination law. The reversal of the burden of proof applies to the various forms of 

discrimination. A scheme of its application has not yet been drawn up by the CJEU. In the United Kingdom, the Court 

of Appeal has provided such a scheme in Igen v Wong for employment tribunals.

6

n ReveRsing the buRden of pRoof nTHEMATIC REPORTAt the heart of discrimination lies prejudice and bias pertaining to the ground on the basis of which less favourable 

treatment is meted out. The juridification and subsequent technicalisation of anti-discrimination discourse at European 

level may divert attention away from the underlying fundamental issue, that discrimination is an unthinking reaction 

to a person not because of his or her conduct, but because of his or her involuntary membership in a group. From 

this perspective, the unsaid assumption that indirect discrimination may be less directly linked to bias and therefore 

more benign than are the other forms of discrimination becomes less convincing. Indeed, the showing of bias or 

stereotypes is essential in cases of indirect discrimination as well, only here the focus is on the effects as opposed 

to the source of such sentiments. The central question of proceedings is therefore how to uncover such bias and/or 

such stereotypes, especially if the prejudice is not directly manifested in the case.

Finding  the  right  comparator  is  part  of  the  answer  because  it  connects  to  membership  in  a  group  targeted  by 

prejudice or bias. Comparison then completes causation. In cases of discrimination, causation is a two-tier exercise. 

Beyond a causal link between the conduct and the harm, another causal link between the protected ground and 

the conduct must also be established to show bias. In practice, this stage often poses insurmountable hurdles for 

plaintiffs. Therefore, it is at this point where they are most in need of effective judicial protection. The causal link 

between the protected ground and the conduct may vary as to the degree of severity. In general, in continental 

European legal systems it is enough to show that a respondent failed to meet his duty of care. However, a breach 

of the duty of care may take the form of negligence or intent. To judge from preliminary referrals, it would seem 

that national judges are grappling with this aspect of the proceedings, that is, the nature of causation in cases of 

discrimination.

The relevant provisions of European law are not crystal clear about the burden on parties to establish causation. 

The presence of a burden of proof provision does not alleviate the burden on plaintiffs to establish the causal link 

between  conduct  and  harm.  This  link  needs  to  be  made  out  before  the  likeliness  or  probability  of  a  causal  link 

between the conduct and the protected ground is shown. Plaintiffs bear the burden of establishing facts that point 

to a probable causal link between the protected ground and the conduct. The key effect of the reversal of the burden 

of proof is that it alleviates the burden on plaintiffs to show a clear causal link between the protected ground and 

the harm. Consequently, the burden of proof shifts even if the causation between the protected ground and harm is 

only probable or likely.

The reversal of the burden of proof is a procedural rule that must be read in conjunction with the definition of the 

type of discrimination invoked. It connects evidence to the showing of bias and derails the course of proceedings at 

two distinct junctions: (i) it lowers the onus of proof (presumption) resting on the plaintiff in relation to the causal 

link between the protected ground and the conduct (prima facie case), while (ii) placing and limiting the remaining 

onus of proof in relation to bias on the respondent (justification defence).

Striking  the  right  balance  between  the  parties  in  relation  to  establishing  the  bias  is  a  tremendous  task  that  in 

optimal cases entails awareness of the functioning of societal stereotypes and power relations in the wide variety of 

scenarios to which European non-discrimination law pertains. Indeed, the very function of the reversal of the burden 

of proof is to ‘factor in’ such bias to the evidentiary rules for the benefit of those who suffer it.

The report also takes stock of general and country specific aspects to the transposition and the implementation of 

the burden of proof provisions. Most Member States have transposed the Non-discrimination Directives through civil 

and labour law and thus provide for the reversal of the burden of proof. A minority have transposed the Directives 

through criminal law, where liability for discrimination must be established beyond reasonable doubt. The Directives 

have been transposed for more than a decade now and national laws implementing the provisions on the burden 

of proof are largely compliant with the requirements of the Directives. Transposition is reasonably accurate in most 

cases,  despite  the  diversity  of  national  formulations  of  the  burden  of  proof  rules.  There  is  a  general  scarcity  of 

case law in many countries, which renders analysis patchy. Moreover, in many jurisdictions it is difficult to obtain 

7

n ReveRsing the buRden of pRoof nTHEMATIC REPORTan overview of how the burden of proof shift applies in practice. Concerns have been raised in relation to practice 

in  Bulgaria,  Cyprus,  Denmark,  FYROM,  Hungary,  Slovakia  and  Sweden.  In  France,  the  provision  has  recently  been 

amended and is now believed to be less favourable to plaintiffs.

Concerns  include  the  access  to  information  and  establishing  a  comparator.  The  widespread  view  is  that  there  is 

an imperfect understanding of how the rule applies in relation to establishing prima facie cases. This appears to 

be  the  case  amongst  judges,  the  legal  profession  and  in  some  cases  even  equality  body  members  and  staff.  In 

most States, a causal link has to be proved on the balance of probabilities before the burden of proof shifts to the 

respondents. There are some indications that in practice the shift may operate differently according to the nature of 

the case and in particular the ground of discrimination invoked – tipping the balance in favour for instance of gender 

discrimination, at least in pregnancy cases.

The relevant Directives do not provide concrete standards of proof by which the respondent can successfully rebut 

the presumption of discrimination. While the CJEU has clarified the standards of justification in gender cases and 

made inroads into shaping the justification of age discrimination, it has not had the opportunity to deal with the 

other grounds to the same degree of detail. The applicable standard of proof for rebuttal is not known for all States 

but seems to be too lenient in a few, such as Austria, Liechtenstein, Norway and Slovakia. As a general rule, when 

complaints are made to specialised national equality tribunals the outcome tends to be better for the plaintiff. There 

may also be differences in outcomes according to whether a litigant is an individual or an NGO.

The report formulates recommendations for possible improvements to the implementation of the burden of proof 

provisions.  These  include  training  of  legal  practitioners,  as  well  as  more  guidance  and  a  compendium  of  good 

practices. More in depth research into the differences in outcomes across the protected grounds would be useful. 

Difficulties relating to the access of plaintiffs to information held by respondents, particularly in cases where such 

information may be confidential, could be alleviated through guidance, the adoption of additional legal provisions 

governing  such  issues  or  a  Commission  Recommendation  on  the  use  of  questionnaires  in  domestic  procedures. 

Guidelines and good practice notes to promote the use of various types of evidence, such as statistical evidence and 

situation testing, would also prove useful.

The provision that exempts inquisitorial proceedings from the burden of proof rule is problematic in practice. The 

operation of the burden of proof rule would be improved by its application to equality bodies. It should also apply 

to  all  proceedings  in  which  discrimination  on  the  grounds  covered  by  the  relevant  Directives  is  raised,  whether 

administrative, civil or labour court proceedings.

8

n ReveRsing the buRden of pRoof nTHEMATIC REPORTIntroduction

There  has  been  a  long-standing  concern  about  the  effectiveness  of  legal  remedies  in  discrimination  law.  Such 

remedies form part of the overall right to effective judicial protection which the Court of Justice of the European 

Union  (CJEU)  has  established  and  consistently  upheld  in  its  case  law.  Beyond  the  substantive  considerations  – 

relating to the sort of sanctions and remedies – the CJEU has dealt with the procedural aspects of the protection 

of the rights of individuals. The reversal of the burden of proof is a unique example of its successful endeavours.

A specific line of jurisprudence from the CJEU has addressed the need to be able to translate rights on the page into 

accessible rights that can benefit individuals in employment and other situations. EU law provides such a right in the 

form of a personal remedy for victims of discrimination.

In the early days of EU discrimination law the issue was gender equality rights, particularly in relation to equal pay. 

It was recognised early on that not only substantive law on equality but also a range of procedural issues arise in 

relation to enforcement of discrimination law. It is a reality that in order for justice to be effective, legal channels 

must be available to and accessible by individuals seeking vindication of their rights. For individuals to be able to 

enforce these rights legal proceedings must be fair and timely, remedies must be effective, and sanctions must be 

adequate and dissuasive.

Within  this  range  of  issues,  the  difficulty  of  proving  a  discrimination  claim  in  court  has  led  to  a  particular  focus 

on problems of proof. In matters of evidence the usual rule in law in all jurisdictions is that the party making the 

allegation must prove a fact at issue to the required standard of proof. However, in cases claiming that there has 

been discriminatory treatment, unequal power relationships, such as those between an employer and an employee, 

mean that the normal evidentiary rule can be problematic for the plaintiff.1 In an employment case, for instance, the 

employer may have access to records, facts and other evidence which are not available to the person making the 

claim.

Even in cases of direct discrimination, where an overt distinction is made solely on the basis of the protected ground, 

it may be difficult to prove this in court proceedings. The employer or supplier of a service may hold individual and 

sometimes even subconscious attitudes and viewpoints regarding people possessing certain characteristics or the 

group to which a person belongs. These attitudes influencing the behaviour of a respondent may well arise against a 

background of prejudice or stereotypes prevailing in a particular society generally. In cases of indirect discrimination, 

it may be even more difficult to prove that an action might have a disproportionately negative impact on a group 

possessing a protected characteristic.

For these reasons, the CJEU established that the usual rule of evidence should be modified in discrimination cases 

in favour of the victim of discrimination. Where, for instance, a system of pay revealed a difference in pay between 

male and female workers which resulted in systematically lower pay for the latter, the Court decided that as the 

pay system used was completely lacking in transparency, discrimination must be presumed and the burden of proof 

must shift to the employer to account for the pay difference by other factors unrelated to sex.2 The Court further 

elaborated the concept of shifting the burden of proof in another gender pay case when it stated that if the pay of 

one group of workers is significantly lower than that of another and if the former are exclusively women while the 

latter are predominately men, there is prima facie case of sex discrimination, at least where the two jobs in question 

1 

The authors will use the term ‘plaintiff’ in place of claimant, complainant or applicant throughout, and ‘respondent’ in place 

of defendant.

2 

Case C-109/88 Danfoss [1989] ECR I-3199.

9

n ReveRsing the buRden of pRoof nTHEMATIC REPORTare of equal value.3 It continued: ‘[w]here there is a prima facie case of discrimination, it is for the employer to show 

that there are objective and non-discriminatory reasons for the difference in pay.’

A number of procedural guarantees have been developed by the EU legislature to ensure effective access to justice 

in discrimination cases. The Racial and Employment Equality Directives that cover race, ethnic origin, age, disability, 

religion  and  sexual  orientation  on  the  one  hand,  and  the  Recast  Gender  Directive  and  the  Goods  and  Services 

Directive on the other, reflect much of the CJEU’s case law and establish a number of key principles as regards 

access to justice including provisions on defence of rights, the reversal of the burden of proof and the requirement 

for an effective, proportionate and dissuasive remedy. Specifically, EU legislation provides that in cases of alleged 

discrimination brought before the courts of Member States, when the plaintiff establishes ‘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.’4

This report examines the background to EU rules on the burden of proof, the development of principles laid down 

in CJEU case law and their application to the Racial and Employment Equality Directives. Given that the bulk of this 

case law is related to the gender ground, it necessarily relies on case law relating to gender discrimination. However, 

the focus is – as much as possible – on judgments relating to race and ethnic origin, age, disability, religion and 

sexual orientation. The handful of judgments responding to questions raised by referring national courts in relation 

to the reversal of the burden of proof will be analysed in detail.

The reversal of the burden of proof has travelled from the practice of the CJEU into that of the European Court 

of Human Rights, where the number of judgments finding discrimination has substantially increased over the last 

decade. This report will not deal with the case law emerging under the European Convention on Human Rights and 

Fundamental Freedoms, but it will make references to it if and when practicable.

The  report  is  composed  of  eight  substantive  chapters.  Following  the  executive  summary  and  the  introduction, 

Chapter 3 looks at the origins of the burden of proof provisions in the case law of the CJEU and subsequent European 

legislation.

Chapter 4 examines European law relevant to the emergence of the burden of proof provisions as well as norms 

that codify the way the CJEU interpreted the reversal of the burden of proof. It looks at legislation on all the grounds 

protected under European law with a specific focus on the Racial and Employment Equality Directives.

Chapter 5 assesses recent studies that have set out to examine whether the rules requiring a shift in the burden of 

proof function in accordance with their aim, which is to make it easier for a discrimination claim to succeed. Chapter 

6 analyses the four recent judgments – Feryn, Kelly, Meister and Accept – that are relevant when discussing the 

reversal of the burden of proof.

Chapter 7 sets out to provide a full scheme of civil proceedings that are compliant with provisions of European law in 

cases of discrimination. It starts out by looking at the elements of discrimination for which plaintiffs must bring forth 

evidence, the conduct, the protected ground, comparators, causation, justification defences and rebuttal. It seeks to 

locate as precisely as possible the point in proceedings where the burden shifts. It also looks at the types of evidence 

relevant in cases of discrimination.

3 

4 

Case C-127/92 Enderby v Frenchay Health Authority 1993 ECR I-05535.

See for example Article 8 of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment 

between persons irrespective of racial or ethnic origin. 

10

THEMATIC REPORTn ReveRsing the buRden of pRoof nChapter 8 takes stock of general and country specific aspects to the transposition and the implementation of the 

burden of proof provisions. Chapter 9 summarises the concerns of country experts in relation to the application of the 

burden of proof provisions. The widespread view is that there is an imperfect understanding of how the rule applies 

in relation to establishing prima facie cases. Chapter 10 formulates recommendations for possible improvements to 

the implementation of the burden of proof provisions, while Chapter 11 sets out conclusions.

11

n ReveRsing the buRden of pRoof nTHEMATIC REPORTHelmus | 1991

THEMATIC REPORTn ReveRsing the buRden of pRoof nPart I 
Origins of the burden of proof provisions

13

THEMATIC REPORTn ReveRsing the buRden of pRoof npARt i 
 
 
 
 
 
 
 
 
 
This chapter looks at the origins of the burden of proof provisions in the case law of the Court of Justice of the 

European Union (CJEU) and subsequent European legislation. EU rules on the burden of proof have been developed 

in the course of the evolution of EU law in general and EU discrimination law in particular. We consider the key 

aspects of the interpretation of the rule and its application that so far has focused mainly on sex discrimination.

Two important principles of EU law are relevant to the historical background of the burden of proof rules. The first 

is  the  principle  of  effectiveness.  According  to  the  effectiveness  principle,  substantive  and  procedural  conditions 

governing actions for the enforcement of EU law must not be framed in such a way as to make it virtually impossible 

to exercise the rights conferred by EU law. In the context of directives granting rights in EU law, national implementing 

measures are necessary to give individuals the possibility of asserting these rights and having them protected, and 

implementation  must  therefore  be  correct  and  within  the  prescribed  time  period.  In  counteracting  any  incorrect 

implementation, the CJEU relies on its ‘natural allies, namely the national courts, who are entrusted with the task 

of protecting the rights derived by individuals from the directives and giving them full effect.’ 5 In the words of one 

commentator,

… an assumption was made by the authors of the EC Treaty that national legal systems based on the rule of 

law could be relied upon to provide an adequate level of judicial protection; it was therefore sufficient to allow 

Community law to be enforced by national remedies in accordance with national procedural rules.6

In  Rewe-Zentralfinanz  v  Landwirtschaftskammer,7  the  CJEU  obliged  the  national  courts  to  take  into  account  the 

principle of effectiveness, and to make sure that the national remedy provided was not discriminatory, was equivalent 

to that available in domestic actions, and did not make it impossible in practice to exercise Community law rights. In 

the same year, in Comet BV v Produktschap voor Siergewassen,8 the CJEU said that domestic law could lay down the 

procedural conditions for the protection of rights guaranteed by EU law provided that they were not discriminatory 

and did not make it impossible in practice to exercise those rights. The national courts in this role certainly benefit 

from  a  considerable  degree  of  what  is  called  ‘procedural  autonomy’,9  enabling  them  to  give  effect  to  EU  rights 

through the medium of their own legal system’s rules and procedures.

However, a further relevant principle is the related but distinct principle of effective judicial protection. In Unibet 

(London) Ltd and Unibet (International) Ltd v Justitiekanslern, the Court held that the introduction of a free-standing 

action for the enforcement of EU law is not required, provided that the principle of effectiveness is observed in the 

national system of domestic remedies.10 In San Giorgio the Court disapproved the burden of proof being placed on 

the applicant, as it made the exercise of the rights derived from EU law virtually impossible.11

In cases dealing with discrimination, as in any legal proceedings, the relevant legal burden needs to be discharged 

in order for the case to succeed. If the law places the entire burden of proof throughout the proceedings upon the 

plaintiff, then ‘all the respondent needs to do in practice is to produce a colourable story which casts doubt on the 

plaintiff’s version of events’.12

5 

6 

7 

8 

9 

Case 26/62 Van Gend en Loos [1963] ECR 1.

Jacobs, F. (1997). ‘Enforcing Community Rights and Obligations’ in Lonbay and Biondi (eds) Remedies for Breach of EC Law. 

Chichester: Wiley.

Case 33/76 Rewe-Zentralfinanz [1976] ECR 1989.

Case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043.

Craig and De Búrca (2011). EU Law: Text, Cases and Materials. Oxford: Oxford University Press, pp. 219-241.

10  Case C-432/05 Unibet Ltd v Justitiekanslern [2007] ECR 1—2271.

11  Case 199/82 Amministrazione delle Finanze dello Stato v SpA San Giorgio [1983] ECR 3595.

12  Ellis, E. and Watson, P. (2012). EU Anti-Discrimination Law. Oxford: Oxford University Press, p.157. Colourable is a legal term 

meaning appearing to be correct or justified, but in fact not so.

14

THEMATIC REPORTn ReveRsing the buRden of pRoof nThe problem is that it is very hard for a plaintiff to prove that there was discrimination in a particular case when the 

case depends on factors which lie entirely within the employer’s own knowledge. If for instance an employer has 

chosen a 30-year-old candidate for a post on the basis that s/he has the more appropriate personality for a job than 

a 60-year-old interviewee with slightly better qualifications, it may be relatively easy to convince a court that this 

was a good reason for choosing the younger person, even if the real reason was in fact conscious or unconscious 

age-stereotyping on the employer’s part.

This evidentiary obstacle was tackled first in relation to indirect discrimination cases seeking the enforcement of a 

Treaty provision, ex Article 141 of the EC Treaty (Article 157 of the present Treaty on the Functioning of the European 

Union) that governed equal pay between men and women. In the Danfoss case concerning equal pay, the female 

workers in the firm were earning on average 7% less than the male workers. The employer was operating a pay 

system which had this effect but it was impossible to find out if the difference was caused by discrimination or not. 

The CJEU said that if a system of pay reveals a difference in pay between male and female workers but the pay 

system used is totally lacking in transparency and statistical evidence, the burden of proof shifts to the employer 

to account for the pay difference by factors unrelated to sex. The Enderby case further elaborated the concept of 

shifting of the burden of proof when the CJEU stated that if the pay of one group of workers is significantly lower 

than that of another and if the former are exclusively women while the latter are predominately men, there is a 

prima facie case of sex discrimination, at least where the two jobs in question are of equal value’.13 It continued, ‘[w]

here there is a prima facie case of discrimination, it is for the employer to show that there are objective and non-

discriminatory reasons for the difference in pay.’

With a view to alleviating the practical problems of proof in discrimination cases, ‘EC law has exercised a decisive 

influence on shaping a common approach’.14 The reversal of the burden of proof was codified in a directive governing 

the burden of proof in cases of gender discrimination. It was included in subsequent pieces of European law that 

broadened the personal and material scope of the non-discrimination principle. Following more recent legislation on 

gender discrimination, the Burden of Proof Directive has been repealed.

In Seymour-Smith, the CJEU provided more guidelines on how to establish the presumption of a prima facie case 

of  indirect  discrimination,  stating  that  in  indirect  discrimination  cases  it  is  the  respondent  that  needs  to  provide 

an objective justification for the indirect discriminatory criteria or practice.15 In the circumstances of that case, for 

instance, mere generalisations concerning the capacity of a specific measure to encourage recruitment were not 

enough to show that the aim of the disputed rule was unrelated to pay discrimination based on sex. In addition, it 

was necessary for the respondent to provide evidence on the basis of which it could be reasonably considered that 

the means chosen were suitable for achieving that aim.

13  Case C-127/92 Enderby.

14  D. Schiek, L. Waddington, and M. Bell (2007). Materials, Cases and Text on National, Supranational and International Non-

discrimination Law. 

15  Case C-167/97 R v Secretary of State for Employment, ex parte Seymour-Smith and Perez [1999] ECR I–623.

15

THEMATIC REPORTn ReveRsing the buRden of pRoof npARt iLucas | 1992

THEMATIC REPORTn ReveRsing the buRden of pRoof nPart II 
European law on equal treatment  
and non-discrimination

17

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt ii 
 
 
 
 
 
 
 
 
This chapter examines European law relevant to the emergence of the burden of proof provisions as well as norms 

that codify the way the CJEU interpreted the reversal of the burden of proof. It looks at legislation on all the grounds 

protected under European law with a specific focus on the Racial and Employment Equality Directives.

From its inception, the European Union has legislated in the field of equality and non-discrimination in relation to 

nationality. Non-discrimination on the basis of nationality was essential for the establishment of a common labour 

market in Europe. A Treaty provision prohibits discrimination on grounds of nationality in order to ensure the free 

movement of workers (Article 45 of the present Treaty on the Functioning of the European Union, ex Article 39 of 

the Treaty Establishing the European Community, EC Treaty). The CJEU held for example that the above-mentioned 

Treaty  provision  was  directly  applicable  in  the  legal  systems  of  Member  States  so  as  to  render  inapplicable  a 

provision in the French Maritime Code that required a certain proportion of the crew of a French ship to be of French 

nationality.16

Article 19 of the present Treaty on the Functioning of the European Union (ex Article 13 of the EC Treaty) gives the 

European Union specific powers to combat discrimination on grounds of sex, racial or ethnic origin, religion or belief, 

age, disability or sexual orientation.

II.1.   The gender equality provisions

Following the adoption of legislation relating to nationality, the principle of equal pay for women and men served to 

ensure that fair competition among employers in different Member States was not distorted by different regulatory 

labour standards involved in the implementation of the principle of equal pay. A Treaty provision provides for equal 

pay between men and women (Article 157 of the present Treaty on the Functioning of the European Union, ex Article 

141 of the EC Treaty). Article 10 TFEU specifies that ‘in defining and implementing its policies and activities, the 

Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or 

sexual orientation.’ The Charter of Fundamental Rights of the European Union is referenced in Article 6 of the Treaty 

on European Union (TEU), making the Charter legally binding. The Charter includes a prohibition of discrimination on 

any ground, including sex (Article 21). It also recognises the right to gender equality in all areas, and the necessity 

of  positive  action  for  its  promotion  (Article  23).  Furthermore,  it  defines  rights  related  to  family  protection  and 

gender equality. The reconciliation of family/private life with work is an important aspect of the Charter, which also 

guarantees the right to paid maternity leave and to parental leave (Article 33).

Aware of the imbalance between the parties in disputes mainly over equal pay, in its case law the CJEU developed 

the principle requiring the burden of proof to shift to the respondent once a prima facie case of discrimination had 

been  established  by  the  plaintiff.

In  the  Danfoss  case  the  CJEU  said  victims  ‘could  be  deprived  of  any  effective 

means of enforcing the principle of equal treatment before the national courts if the effect of introducing evidence 

of an apparent discrimination were not to impose upon the respondent the burden of proving that his practice is not 

in fact discriminatory.’ However, the appreciation of the facts from which it may be presumed that there has been 

discrimination remained a matter for the relevant national body in accordance with national law or practice.

Despite this, the aim of adequately adapting the rules on the burden of proof was not achieved satisfactorily in 

all Member States. It therefore became necessary to enact European legislation to ensure harmonisation. Council 

Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex (the Burden 

of Proof Directive) had the express intention of ensuring that measures taken by Member States to implement the 

principle of equal treatment between men and women were made more effective. The Burden of Proof Directive 

16  Case 167/73, Commission v France [1974] ECR-359 .

18

THEMATIC REPORTn ReveRsing the buRden of pRoof n 
 
aimed at ensuring that judicial processes were available to those whose right to equal treatment had been violated.17 

Central to this Directive was the concept that the burden of proving discrimination in full did not fall entirely on the 

plaintiffs.18 Significantly, the Directive expanded the application of the reversal of the burden of proof to cases of 

direct discrimination as well.

Article 4 of the Burden of Proof Directive stated that:

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.

Now directives relating to sex discrimination cover the field of employment and goods and services, such as Council 

Directive  2004/113/EC  of  13  December  2004  implementing  the  principle  of  equal  treatment  between  men  and 

women in the access to and supply of goods and services (the Services Directive) and Directive 2006/54/EC of the 

European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities 

and equal treatment of men and women in matters of employment and occupation (the Recast Gender Directive). 

The provisions of the Burden of Proof Directive were repealed and recast in the Recast Gender Directive. The Goods 

and Services Directive provides for the reversal of the burden of proof in Article 9.

II.2.   The Equal Treatment and Non-discrimination Directives

The Council has passed two directives (hereinafter ‘the Non-discrimination Directives’), which oblige Member States 

to  introduce  measures  to  eliminate  discrimination  on  grounds  other  than  nationality  and  sex:  Council  Directive 

2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial 

or ethnic origin (the Racial Equality Directive) and Council Directive 2000/78/EC of 27 November 2000 establishing 

a general framework for equal treatment in employment and occupation (the Employment Equality Directive).

As  O’Cinneide  observes,  over  the  last  decade,  CJEU  case  law  has  established  that  the  Racial  and  Employment 

Equality  Directives  ‘should  be  interpreted  as  giving  specific  expression  to  a  fundamental  norm  of  the  EU  legal 

order, namely the general principle of equal treatment. The CJEU’s interpretation of both Directives has thus been 

purposive’.19 With a view particularly to Advocate-General Maduro’s opinion in the Coleman case, he stresses that 

the Directives ‘also need to be interpreted with reference to the values of human dignity and personal autonomy’, as 

these values ‘animate the enabling provisions of Article 13 TEC (now Article 19 TFEU) that provide the legal basis for 

the Directives’.20 Last, recalling that the Directives cover both the public and the private spheres, he cautions about 

difficulties likely to arise in the field of housing. ‘Article 3(1)(h) of the Racial Equality Directive explicitly states that 

the provision of housing to the public comes within its scope. Public bodies exercise many functions which relate to 

17  Article 1 described its aim as being ‘to ensure that the measures taken by the Member States to implement the principle of 

equal treatment are made more effective, in order to enable all persons who consider themselves wronged because of the 

principle of equal treatment has not been applied to them to have their rights asserted by judicial process...’.

18  This was underlined in Recital 17: ‘Whereas plaintiffs could be deprived of any effective means of enforcing the principle of 

equal treatment before the national courts if the effect of introducing evidence of an apparent discrimination were not to 

impose upon the respondent the burden of proving that this practice is not in fact discriminatory.’

19  Colm O’Cinneide (2012). The Evolution and Impact of the Case-Law of the Court of Justice of the European Union on 

Directives 2000/43/EC and 2000/78/EC. p.36.

20 

Ibid., pp. 23 and 38.

19

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt ii 
housing, and it is not clear which of these functions will come within the scope of the Directive in the CJEU’s future 

case law developing in this area’.21

While the reversal of the burden of proof applied in cases brought under a Treaty provision by way of the CJEU case 

law, secondary legislation expressly provides for it in relation to all the protected grounds and fields. The burden of 

proof provisions can now be found in the remedies and enforcement sections of the Racial Equality Directive (Article 

8), Employment Equality Directive (Article 10), the Goods and Services Directive (Article 9) and the Recast Gender 

Directive (Article 19).22

Article 8 of the Racial Equality Directive stipulates the following:

1.   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.

2.   Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable 

to plaintiffs.

3.   Paragraph 1 shall not apply to criminal procedures.

4.   Paragraphs 1, 2 and 3 shall also apply to any proceedings brought in accordance with Article 7(2).

5.   Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to 

investigate the facts of the case.

European law regulates the reversal of the burden of proof in an identical manner across the protected grounds — 

except for nationality, where no such provision has been enacted. Such provisions explicitly state that they are not 

to apply to criminal procedures and that they need not apply to proceedings in which a court or competent body 

has an investigatory or inquisitorial role to ascertain the facts of the case. Finally, European law pertaining to the 

reversal of the burden of proof does not prevent Member States from introducing rules of evidence which are more 

favourable to plaintiffs.

21 

Ibid., p.30.

22  There are slight differences in the wording of Article 19 of the Recast Gender Directive.

20

n ReveRsing the buRden of pRoof nTHEMATIC REPORT21

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt iiMichelle | 1995

THEMATIC REPORTn ReveRsing the buRden of pRoof nPart III 
Previous studies on the burden of proof

23

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt iii 
 
 
 
 
 
 
 
 
 
A  number  of  studies  have  set  out  to  examine  whether  the  rules  requiring  a  shift  in  the  burden  of  proof  in  a 

discrimination case are operating in accordance with their aim, which is to make it easier for a discrimination claim 

to succeed.

An overview published by the European Network of Legal Experts in the Non-discrimination Field in 2006, a few 

years  after  the  transposition  of  the  Directives  pointed  out  that  although  the  shift  applies  to  cases  of  direct  and 

indirect  discrimination,  there  is  a  clear  link  between  the  shift  and  indirect  discrimination.23  Traditional  ways  of 

collecting evidence such as documentary evidence, witness statements and expert opinions are unsatisfactory in 

discrimination cases. The CJEU recognised in the cases of Enderby, Brunnhofer and Nikoloudi that statistical evidence 

is sufficient to shift the burden onto the employer in indirect discrimination cases. However, statistics are not always 

available and methods such as situation testing are not without controversy. All the indications were that in spite of 

the shift of the burden, proving a prima facie case remained a difficult obstacle for plaintiffs to overcome.

In 2011 the EU Gender Equality Network produced a report entitled Comparative study on access to justice in gender 

equality and anti-discrimination law.24 In relation to the European rules on shifting the burden of proof the study 

found that what constitutes prima facie evidence or what amounts to facts from which it may be presumed that 

there has been direct or indirect discrimination is not always clear and lends itself to a variety of interpretations and 

modes of application in the different countries. As a departure from the general procedural rules it found that the 

new rule does not coexist easily with them and is often overlooked or misapplied.

In a 2012 report by the Fundamental Rights Agency (FRA) on access to justice in discrimination cases in the EU, a 

wide range of factors were identified which can limit the scope for plaintiffs to gain access to justice. These include 

procedural obstacles in the course of the hearing of a complaint. The research considered procedures under four 

headings: collective dimensions, fairness, timely resolution and effectiveness. Respondents identified the collective 

dimensions of procedures, such as widened legal standing and strategic litigation, as important to improve access 

to justice. Thus, as in other fields, the availability of class or representative group actions in anti-discrimination law 

improves access to courts and judgments in favour of plaintiffs. They also identified equality of arms and the shift 

of the burden of proof as essential requirements of fair proceedings. However, problems were reported in relation 

to both issues, consisting in the first case of the typically greater strength of the alleged discriminator vis-à-vis the 

plaintiff, and in the second of the low awareness and insufficient application of the shift of burden of proof by courts.

The FRA report found that the right to fair proceedings was limited by insufficient application of EU law on shifting 

the  burden  of  proof  to  the  respondent  in  discrimination  proceedings,  due  inter  alia  to  lack  of  awareness  of  the 

concept on the part of judges, or to the fact that the national law was not clear about how and when to apply it. It 

recommended support to judges in understanding and applying the shift in the burden of proof.25

23  Palmer, F (2006). ‘Re-dressing the Balance of Power in Discrimination Cases: The Shift in the Burden of Proof’, European Anti-

Discrimination Law Review 4, p.23.

24  Milieu Ltd (2011). Comparative study on access to justice in gender equality and anti-discrimination law.

25  Ellis, Evelyn and Watson, Philippa (2012). EU Anti-Discrimination Law. Second edition. Oxford: Oxford University Press, p 157.

24

n ReveRsing the buRden of pRoof nTHEMATIC REPORTPart IV 
Recent judgments of the CJEU relevant  
to the burden of proof

25

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt iv 
 
 
 
 
 
 
 
 
Joab | 2009

THEMATIC REPORTn ReveRsing the buRden of pRoof nFour recent judgments rendered by the CJEU appear to be relevant when discussing the reversal of the burden of 

proof. They all arose in the employment context, more particularly in access to employment or vocational training, 

where  plaintiffs’  access  to  information  held  exclusively  by  respondents  is  perhaps  the  most  difficult  to  ensure. 
Indeed,  these  were  situations  not  so  far  encountered  by  the  CJEU  in  sex  discrimination  cases,  which  primarily 

related to pay differences between men and women or to pregnancy discrimination.26 All four referrals requested 

the CJEU to assist national courts in the interpretation of the reversal of the burden of proof provisions with a view 

to establishing a prima facie case. Two related to race and ethnic origin, one to sex and one to sexual orientation. 

Notably, the many referrals invoking the ground of age are concerned not with establishing a prima facie case but 

more with the justification of age discrimination under Article 6(1) of the Employment Equality Directive.27

In  Feryn  the  Belgian  equality  body  challenged  in  the  framework  of  a  representative  action  (actio  popularis)  the 

recruitment policy of a well-known employer who publicly stated that he would not and has not hired employees 

of a particular ethnic origin.28 Advocate-General Maduro argued that the facts did not only reveal a potential threat 

of  discrimination,  but  that  such  statements  amounted  to  a  ‘speech  act’  which  constituted  direct  discrimination 
based  on  ethnic  origin.  Notably,  the  ‘speech  act’  in  the  case  in  question  did  not  amount  to  potential  but  actual 
discrimination. It transpired from the facts that the employer had in fact refused to hire applicants of Moroccan 

origin, although the exact number and identity of such applicants remained unknown in the proceedings.29

The questions referred appear rather complicated and telling of a clear need for guidance on the practical application 

of the burden of proof provision in the Racial Equality Directive. Out of the six questions referred, four dealt with 

establishing a prima facie case and one with the justification defence. They are listed below in a reader-friendly 

format to demonstrate the level of uncertainty surrounding facts on the basis of which direct race discrimination 

can be established. Notably, the case was brought against a well-known and well-respected businessman in Belgium 

on account of his continued disrespect of the principle of equal treatment on the basis of race. The use of the word 

‘strict’ in relation to the assessment of the court, in our view, points to uncertainties in relation to the balance of 
probabilities test.

(1) 

Is there direct discrimination where an employer, after advertising a job vacancy notice makes a public 

statement that excludes applicants from one particular race?

(2) 

Is  it  sufficient  for  a  finding  of  direct  discrimination  to  establish  that  the  employer  applies  directly 

discriminatory selection criteria?

(3) 

For the purpose of establishing that there is direct discrimination, may account be taken of the recruitment 

of  exclusively  indigenous  fitters  by  an  affiliated  company  of  the  employer  in  assessing  whether  that 

employer’s recruitment policy is discriminatory?

(4)  What is to be understood by ‘facts from which it may be presumed that there has been direct or indirect 

discrimination’? How strict must a national court be in assessing facts which give rise to a presumption of 

discrimination?

(a)  To what extent do earlier acts of discrimination constitute ‘facts from which it may be presumed that 

there has been direct or indirect discrimination’?

(b)  Does an established act of discrimination in April 2005 subsequently give rise to a presumption of the 

continuation of a directly discriminatory recruitment policy?

26  We do not discuss the latter strand of case law because comparisons are not required for pregnancy.

27  Ellis, Evelyn, and Philippa Watson (2012). EU anti-discrimination law. Oxford: Oxford University Press, pp. 408-418; and 

Dewhurst, Elaine (2013). ‘The Development of EU Case-Law on Age Discrimination in Employment: “Will You Still Need Me? 

Will You Still Feed Me? When I’m Sixty-Four”’, European Law Journal 19.4 (2013), pp. 517-544.

28  Case C-54/07 Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV.

29  Mr Feryn was reported to say that ‘[a]part from these Moroccans, no one else has responded to our notice in two weeks … 

but we are not looking for Moroccans.’ Cited in the Opinion of Advocate-General Poiares Maduro, Case C-54/07, 1.3.

27

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt iv(c)  Can a joint press release issued by an employer and the national body for combating discrimination, 

in which acts of discrimination are at least implicitly confirmed by the employer, give rise to such a 

presumption?

(d)  Does  the  fact  that  an  employer  does  not  employ  any  fitters  from  ethnic  minorities  give  rise  to  a 

presumption of indirect discrimination when that same employer some time previously had experienced 

great difficulty in recruiting fitters and, moreover, had also stated publicly that his customers did not 

like working with fitters who were immigrants?

(e)  Is one fact sufficient in order to raise a presumption of discrimination?

(f)  Can a presumption of discrimination on the part of the employer be inferred from the recruitment of 

exclusively indigenous fitters by an affiliated company of that employer?

(5)  How strict must the national court be in assessing the evidence in rebuttal which must be produced when 

a presumption of discrimination has been raised? Can a presumption of discrimination be rebutted by a 

simple and unilateral statement by the employer in the press that he does not or does not any longer 

discriminate and that fitters from ethnic minorities are welcome? (emphasis added)

The  Advocate-General  noted  that  a  ‘simple’  speech  act  such  as  that  committed  in  Feryn  may  have  graver 

consequences because ‘[n]obody can reasonably be expected to apply for a position if they know in advance that, 

because of their racial or ethnic origin, they stand no chance of being hired’.30 That speech conveys a message of 

exclusion from the labour market and if not acted upon, the ‘most blatant strategy of employment discrimination 

might also turn out to be the most “rewarding”’.31

The CJEU found that the absence of an identifiable plaintiff does not mean that there is no direct discrimination 

based on ethnic origin and that the ‘speech act’ in and of itself was a fact on the basis of which it could be presumed 
that such discrimination in respect of recruitment had occurred, because it was ‘likely strongly to dissuade certain 
candidates from submitting their candidature and, accordingly, to hinder their access to the labour market’. Public 
statements ‘by which an employer lets it be known that under its recruitment policy it will not recruit any employees 
of a certain ethnic or racial origin are sufficient for a presumption of the existence of a recruitment policy which is 

directly discriminatory’. The employer can justify its action ‘by showing that the undertaking’s actual recruitment 
practice does not correspond to those statements’. The national court’s task is to verify the justification defence 
by assessing the ‘sufficiency of the evidence submitted in support of the employer’s contentions that it has not 
breached the principle of equal treatment’.

In Kelly the plaintiff, a teacher, applied unsuccessfully for a place on a vocational training course. He complained 

of sex discrimination, saying that he was better qualified than the least-qualified female candidate to be offered a 

place. Whilst granting the plaintiff access to redacted information, the national court asked the CJEU whether EU law 

entitles an applicant for vocational training who believes himself to be the victim of discrimination to information 

held by the course provider about the qualifications of the other applicants, in order to establish a prima facie case 

of discrimination.

Significantly, the referral concerned not access to redacted information, but access to confidential data concerning 

individual, identifiable applicants’ qualifications. With this in mind, it is perhaps not surprising that the CJEU found 
the Burden of Proof Directive not to entitle plaintiffs to such confidential information. The CJEU also held that it 

cannot be excluded that a refusal of disclosure by the respondent ‘could risk compromising the achievement of 
the objective pursued by that directive and thus depriving Article 4(1) thereof in particular of its effectiveness’.32 In 

30 

31 

Ibid., 15.

Ibid., 17.

32  Case C-104/10 Patrick Kelly v National University of Ireland (University College, Dublin), para. 39.

28

n ReveRsing the buRden of pRoof nTHEMATIC REPORTassessing such facts, national courts ‘must take into account the rules governing confidentiality which follow from 

European Union legal acts’.33

Meister concerned discrimination on the grounds of sex, age and ethnic origin during a recruitment process. Meister 

was a Russian national, born on 7 September 1961.34 She held a Russian degree in systems engineering, which had 

been recognised in Germany as the equivalent of a German degree awarded by a university of applied science. On 

5 October 2006, she responded to a job advertisement placed in a newspaper by Speech Design Carrier Systems 

GmbH. In a letter of 11 October 2006, the latter rejected Ms Meister’s application, without inviting her for a job 

interview. Soon afterwards, the company published a second job advertisement with the same content – this time on 

the internet. On 19 October 2006, Ms Meister reapplied but her application was again rejected. She was not invited 

for  an  interview  and  she  was  not  told  on  what  ground  her  application  was  unsuccessful.  The  respondent  never 

claimed that Ms Meister’s level of expertise did not correspond to that sought in the recruitment process.

In order to obtain the necessary information, Ms Meister requested the trial court to order the company to produce 

the file of the person who was engaged for the job. The German domestic rules of disclosure or data protection 

rules relating to personal data on sex, age and ethnic origin are not known from the file, but the AG’s Opinion recalls 

that during the domestic trial, the company’s representative ‘was unable to explain clearly the chronology of the 

recruitment process’.35

The German court asked the CJEU whether, where an applicant met the qualifications for a post, EU law confers a 

right to information as to whether the employer has engaged another person and, if so, the criteria on which that 

appointment was made. If the respondent refuses to provide such information, can a prima facie case be established?

The CJEU held that the Directives do not entitle a worker who shows that she meets the requirements listed in a job 

advertisement but is subsequently rejected to have access to information indicating whether the employer engaged 

another applicant at the end of the recruitment process. The respondent’s ‘refusal to grant any access to information 

may be one of the factors to take into account in the context of establishing facts from which it may be presumed 

that there has been direct or indirect discrimination’. This is the task of the national court, taking into account all the 

circumstances of the case before it.

Curiously, the Meister judgment does not examine the aspects of confidentiality in the case, nor does it distinguish 

Meister from Kelly – despite the AG’s reference to the latter – in relation to the scope of the respondent’s refusal to 

disclose information.

A more careful analysis of all aspects of the case could have perhaps yielded more beneficial results for the plaintiff 

at the domestic level. As it is, however, the German Federal Labour Court rejected her claim, holding that ‘[t]he CJEU 

confirmed that there is no right to information. Moreover, it stated that the denial of information may be used as 

circumstantial evidence for a shift of the burden of proof. The Federal Labour Court applied these standards and 

held that – given the circumstances of the concrete case at hand – there were no indications that allowed the denial 

of  information  by  the  employer  to  be  taken  as  circumstantial  evidence  justifying  a  shift  of  the  burden  of  proof. 

Consequently, the motion was denied.’36

The CJEU’s finding on access to information under European law may not tally with domestic rules on disclosure 

in every Member State. A French judgment illustrates this: ‘[t]he Defendant cannot argue the insufficiency of the 

33 

Ibid., para. 55.

34  Case C-415/10 Meister v Speech Design Carrier Systems GmbH.

35  Opinion of Mr Advocate-General Mengozzi, C-415/10, para. 36.

36  Federal Labour Court (Bundesarbeitsgericht), Judgment of 25 April 2013 No 8 AZR 287/08. 

29

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt ivPlaintiff’s evidence if he failed to communicate the documents ordered by the court. The corollary consequence of 

the right to have access to the evidence held by the opposing party is that failure to comply transfers the burden 

of proof to the Defendant’.37 Notably, this ruling shows that contrary to what may be surmised from the CJEU ruling 

in Meister, the failure to ensure access to documents held by the respondent may indeed lead to a reversal of the 

burden of proof.

In Accept, a situation rather similar to that encountered in Feryn but this time based on the ground of sexual orientation 

was examined. Homophobic public statements relating to the recruitment of football players were challenged by 

a private entity, Association Accept, whose aim was to promote and protect lesbian, gay and transsexual rights in 

Romania.38

A ‘patron’ of the football club Steaua Bucureşti SA presented himself and was perceived by the public as playing a 

leading role in the respondent club. He owned shares within it at the time when he made the statement about the 

policy for recruiting football players. Similarly to Feryn, both the football club and its patron are well-known across 

Romania.

Out of the four questions referred by the national court, one related to the prima facie case and one to the justification 

defence.

(2) 

To what extent may the public statements be regarded as ‘facts from which it may be presumed that there 

has been direct or indirect discrimination’?

(3) 

To  what  extent  would  there  be  probatio  diabolica  if  the  burden  of  proof  were  to  be  reversed  in  this 

case and the defendant [FC Steaua] were required to demonstrate that there has been no breach of the 

principle of equal treatment and, in particular, that recruitment is unconnected with sexual orientation?

The CJEU found that ‘if facts such as those from which the dispute in the main proceedings arises were considered’ 

to establish a prima facie case of direct discrimination based on sexual orientation, they could be refuted with a body 

of consistent evidence. However, evidence that is impossible to adduce without interfering with the right to privacy – 

namely to prove that LGBT players had been recruited in the past – is not required under the Directive.

Three observations need to be made in relation to the four cases discussed above. First, all four, but more particularly 

Kelly and Meister, bring back the issue of transparency of the employer’s practices, a question previously considered 

by the CJEU in relation to gender pay gaps. In Danfoss, the CJEU held that a system of pay which is characterised by 

a lack of transparency is contrary to the principle of equal access to employment because the lack of transparency 

prevents  any  form  of  supervision  by  the  national  courts.39  Where  an  undertaking  applies  a  system  of  pay  which 

is  totally  lacking  in  transparency,  it  is  for  the  employer  to  prove  that  its  practice  in  the  matter  of  wages  is  not 

discriminatory, if a female worker establishes, in relation to a relatively large number of employees, that the average 

pay  for  women  is  less  than  that  for  men.  As  explained  above,  the  evidentiary  hardship  caused  by  such  lack  of 

transparency could finally be overcome in Feryn and Accept on account of the respondent’s clear and unequivocal 

statements of bias, i.e. of the cause of their actions. In Kelly, the lack of transparency was not ‘total’, unlike that 

encountered in Danfoss and Meister. The significant difference between equal pay cases on the one hand and Feryn, 

Meister and Accept on the other is, however, that the former relate to a worker who is already ‘in’ and has at least 

limited access to information regarding the employer’s practices, whereas the plaintiffs in the latter group are ‘out’. 

37 

IBM v. Buscail, Court of Appeal, Montpellier, No 0200504, 25 March 2003.

38  Case C-81/12 Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării.

39  Danfoss, para. 12. Here, the CJEU also relied on its earlier finding on the matter of transparency in Case C-318/86 

Commission v France.

30

n ReveRsing the buRden of pRoof nTHEMATIC REPORTAnother important difference is that while employees can rely on trade unions when discovering facts – and this is 

true for Mr Kelly as well, who applied for a vocational training course with his employer – job seekers cannot.

Second, the uncertainties surrounding the actual application in practice of the burden of proof provisions on the new 

grounds of race and sexual orientation in Feryn and Accept arose in the context of proceedings against well-known 

and well-respected businessmen, which may have placed an additional burden on the national courts.

Third, Kelly, Meister and Accept indicate that respondents are well aware of the weakest link in the scheme created 

by the reversal of the burden of proof. Whether by coincidence or conscious design, they base their legal strategies 

on cultivating this shortcoming, namely the reluctance of courts to make disclosure orders if that could lead to the 

disclosure of confidential data of identifiable individuals who are not party to the proceedings. While the CJEU seems 

to be on its guard, its failure so far to analyse in detail the limitations that data protection provisions may pose on 

establishing a prima facie case or rebutting it, is noticeable. Reaffirming the principle to effective judicial protection 

while not countering its erosion with the gusto praised by all in relation to earlier sex discrimination case law would 

indeed be a regrettable development.

31

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt ivCita | 1989

THEMATIC REPORTn ReveRsing the buRden of pRoof nPart V 
Theoretical underpinnings and  
general considerations

33

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt v 
 
 
 
 
 
 
 
 
The reversal of the burden of proof applies in civil proceedings and may – depending on national legislation – apply 

in administrative proceedings where the discovery of facts is the duty of a public authority. In essence, it eases 

the access of the plaintiff to evidence held by the respondent and requires the latter to furnish information on the 

reasons of its decision leading to discrimination.40

Discrimination can be established in a wide range of proceedings. In civil or labour cases the general rule is that 

each party bears the burden of proving the facts it alleges and from which it derives favourable legal consequences. 

While parties that hold relevant evidence may be ordered to grant access to it, they cannot be forced to reveal the 

reasons for their actions, nor are inferences drawn from their failure to do so. The rule of thumb in civil proceedings 

is that the verdict is reached on a balance of probabilities, i.e. a claim succeeds if it appears more probable than not.

On the other hand, in administrative and criminal cases it is usually for the authorities to investigate and establish 

the facts to different degrees of certainty. The degree of certainty is the highest in criminal cases because of the 

presumption of innocence and the severity of sanctions, including imprisonment. This is why in criminal cases a 

complaint of discrimination must be proven beyond reasonable doubt and the offender’s discriminatory intent must 

be established. However, this is – or rather should – not be the case in civil proceedings.

Against this background, this chapter sets out to provide a full scheme of civil proceedings that are compliant with 

provisions of European law in cases of discrimination. It starts out by looking at the elements of discrimination for 

which  plaintiffs  must  produce  evidence,  the  conduct,  the  protected  ground,  comparators,  causation,  justification 

defences and rebuttal. It seeks to locate as precisely as possible the point in proceedings when the burden shifts. 

Last, it looks at the types of evidence relevant in cases of discrimination.

V.1.   General note

The reversal of the burden of proof does not mean that plaintiffs are exempt from convincing the court that they 

have a case. ‘Having a case means that plaintiffs present a set of facts that call for an explanation and one possible 

explanation is discrimination.’41 In order to reverse the burden of proof they must first establish a prima facie case, 

in other words convince the court of the likeliness or probability that they suffered discrimination. The burden of 

proof  shifts  before  causation  is  complete.  It  moves  to  the  respondent.  He  will  not  be  held  liable  if  he  can  prove 

that  discrimination  played  no  part  in  the  treatment  or  effect  complained  of.  If  the  respondent  fails  to  establish 

that the treatment arose from objective reasons unrelated to discrimination, he will be liable for a breach of non-

discrimination law.

This description is the only one compatible with Section 611a(1) of the German Civil Code, on which the European 

definition of the burden of proof was modelled. This provision set out that ‘where an employee substantiates by 

prima  facie  evidence  facts  from  which  it  may  be  presumed  that  there  has  been  less  favourable  treatment  on 

grounds of sex, it shall be for the employer to prove that this treatment is justified by objective reasons other than 

sex’ (emphasis added).42

The reversal of the burden of proof applies to the various forms of discrimination. The non-discrimination principle 

requires the equal treatment of an individual or group irrespective of their personal characteristic, or in other words, 

40  Fiona Palmer (2006). ‘Redressing the Balance of Power in Discrimination Cases: the Shift in the Burden of Proof’, European 

Anti-Discrimination Law Review 4/2006.

41  This quote is taken from Declan O’Dempsey’s insightful intervention at the Legal Seminar on the Enforcement of Equality 

and Anti-discrimination Law held in Brussels on 28 November 2014.

42  The reminder and the text of the German legislation are taken from D. Schiek, L. Waddington, and M. Bell (2007), Materials, 

Cases and Text on National, Supranational and International Non-discrimination Law.

34

n ReveRsing the buRden of pRoof nTHEMATIC REPORT 
their protected ground. Equal treatment means that likes should be treated alike and unalikes should be treated 

unalike (the disabled worker should be reasonably accommodated to do her job). The non-discrimination principle 

is also used to provide protection from criteria that are seemingly unrelated to a protected ground but that produce 

effects which systematically disadvantage persons with the characteristic in question. Discrimination may comprise 

conduct that has the purpose or intent to discriminate, but also practice that may have discriminatory effect.

Despite growing demand from national courts, particularly in cases arising under the Racial and Employment Equality 

Directives as well as in the context of access to employment, the CJEU has not set out a procedural scheme to guide 

national courts in the application of the burden of proof provisions. The Court of Appeal of England and Wales has 

been more responsive in this respect and in Igen v Wong it provided guidance for employment tribunals in cases of 

sex discrimination in the employment context.43

(1)   … it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts 

from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has 

committed an act of discrimination against the claimant which is unlawful by virtue … of the … Act, is to 

be treated as having been committed against the claimant. These are referred to below as ‘such facts’.

(2)  

If the claimant does not prove such facts he or she will fail.

(3)  

It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to 

find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, 

even to themselves. In some cases the discrimination will not be an intention but merely based on the 

assumption that ‘he or she would not have fitted in’.

(4)  

In deciding whether the claimant has proved such facts, it is important to remember that the outcome at 

this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to 

draw from the primary facts found by the tribunal.

(5)  

It is important to note the word ‘could’.… At this stage the tribunal does not have to reach a definitive 

determination  that  such  facts  would  lead  it  to  the  conclusion  that  there  was  an  act  of  unlawful 

discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of 

secondary fact could be drawn from them.

(6)  

In  considering  what  inferences  or  conclusions  can  be  drawn  from  the  primary  facts,  the  tribunal  must 

assume that there is no adequate explanation for those facts.

(7)   These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in 

accordance with … the Act from an evasive or equivocal reply to a questionnaire or any other questions 

that fall within … the Act.

(8)   Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and, 

if so, take it into account in determining such facts pursuant to … the Act. This means that inferences may 

also be drawn from any failure to comply with any relevant code of practice.

(9)   Where the claimant has proved facts from which conclusions could be drawn that the employer has treated 

the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.

(10)   It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as 

having committed, that act.

(11)   To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that 

the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is 

compatible with the Burden of Proof Directive.

43 

Igen Ltd (formerly Leeds Careers Guidance) and Others v Wong, Chamberlin and Another v Emokpae and Webster v Brunel 

University (2005) IRLR 258. At para. 76. the Court warned that ‘the guidance is only that and is not a substitute for the 

statutory language’. We reproduce the text in a manner that omits references to UK law.

35

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt v(12)   That requires a tribunal to assess not merely whether the employer has proved an explanation for the 

facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of 

proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13)   Since the facts necessary to prove an explanation would normally be in the possession of the respondent, 

a  tribunal  would  normally  expect  cogent  evidence  to  discharge  that  burden  of  proof.  In  particular,  the 

tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure 

and/or code of practice.

Bearing in mind the CJEU’s case law and the wording of the Directives, we set out to discuss the details of civil 
proceedings in cases of discrimination.

V.2.   Discovery of facts: evidence

Just as any civil case, actions alleging discrimination commence with the discovery of facts on the basis of which 

discrimination can be presumed, and the potential justification defence can be rebutted. Typical evidence in legal 

proceedings includes witness statements, documents or common knowledge. In all proceedings victims have the 

duty to provide the evidence they have. In many cases, discrimination is established simply based on respondents’ 

oral or written statements that can be proven through witnesses or documents.

Evidence can be direct and circumstantial. Direct evidence is capable of establishing facts without requiring the court 

to draw further inferences, whereas circumstantial evidence is only part of a puzzle that courts must endeavour to 

complete according to the rules of logic.

There are various tools and methods that can ease the requirement on plaintiffs alleging discrimination to establish 

their claim, including the use of statistics, situation testing, questionnaires, audio or video recordings and forensic 

expert opinions and the drawing of inferences from circumstantial evidence.

Situation testing is often used to uncover discriminatory practices such as denial of access to bars, restaurants or 

employment. It has also been used to uncover different treatment in access to rented apartments and even to a 

denominational school. It is suited to providing evidence for direct discrimination because it yields direct evidence 

enabling a comparison.

National rules on evidence in general provide for the possibility to use any evidence, including a response by the 

alleged discriminator to a written inquiry about their treatment. A detailed response may also provide a plausible 

explanation to the victim herself and persuade her that she had not suffered discrimination. Prior to starting a legal 

action, there may be an opportunity or obligation to contact the alleged discriminator and seek clarifications of his 

or her conduct through a questionnaire procedure. Answers provided to such a questionnaire – or a lack of response 

– allow courts to draw inferences in relation to discrimination.44

In  Igen  v  Wong  the  Court  of  Appeal  of  England  and  Wales  laid  down  that  ‘Since  the  facts  necessary  to  prove 

an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent 

44 

In Ireland the Equality Tribunal uses the questionnaire procedure. A person who believes that they may have experienced 

discrimination is entitled under Section 76 of the Equality Acts to write to the person they believe may have discriminated 

against them, asking for certain information. A statutory form of questionnaire (Forms EE.2 and ES.1) is available from the 

Tribunal and can be downloaded from the website. A statutory reply form gives the person who receives the questionnaire 

an opportunity to set out their version of events. This form is also available (Form EE.3 and ES.2) from the Tribunal and can 

be downloaded from the website. The Acts state that such inferences as seem appropriate may be drawn from a respondent 

failing to reply, or supplying false, misleading or inadequate information.

36

n ReveRsing the buRden of pRoof nTHEMATIC REPORT 
evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for 

failure to deal with the questionnaire procedure and/or code of practice’.45

The disclosure of documents held by respondents or the hearing of witnesses familiar with the respondent’s conduct 

is a matter regulated by civil procedure laws across the EU and such provisions should be made full use of when 

plaintiffs are proceeding to establish a prima facie case. Courts most certainly need to discover the motive behind 

the failure to disclose. If bias cannot be ruled out, drawing inferences from such failure and reversing the burden of 

proof may be the only way to ensure that the respondent eventually submits the relevant evidence.

On  the  other  hand,  the  scope  of  the  request  for  information  must  neatly  fit  its  purpose:  provision  of  access  to 

facts that accelerate the building of a prima facie case and as such shed light on the comparators’ treatment and 

whether or not they have a protected ground. If the information requested goes beyond this scope, it is right to deny 

access. This appeared to be the case in Kelly, where a man bringing a claim for sex discrimination requested access 

to additional personal data of his potential comparators in addition to that already provided by the employer in a 

redacted manner.46 As the CJEU pointed out, Kelly was not sufficiently analogous to Meister, as in Kelly redacted data 

were provided to the plaintiff.47

Practitioners are divided over the usefulness of the questionnaire procedure, but there seems to be an agreement 

that it is better to have it than not, at least for the purposes of enabling trial courts to draw inferences from no or 

evasive answers from respondents.48

The  Non-discrimination  Directives  mention  statistical  evidence  as  a  possible  means  of  establishing  indirect 

discrimination. Discussion among academics and practitioners has focused on the size of the samples, the period 

covered by the statistics and the level of disadvantage shown. In general, national laws do not specify statistics 

as a type of evidence but permit their use. In practice, prima facie cases of discrimination have been established 

through the use of statistics particularly in relation to unequal pay based on sex, collective redundancy based on 

age and segregation based on ethnicity. However, statistics are not always available and it is not a prerequisite of 

establishing discrimination.

In Seymour-Smith the CJEU suggested that the conditions associated with certain employment rights or privileges 

would constitute a prima facie case of indirect discrimination if available statistics indicated that a considerably 

smaller percentage of women than men were able to satisfy the condition.49

Other  types  of  evidence  include  audio  or  video  recordings  if  permitted  by  law  or  court  practice,  a  preliminary 

statement from the parties, the demonstration of a typical tendency, forensic expert opinion, and the drawing of 

inferences from circumstantial evidence and public statements published or broadcast.

Individuals are often dissuaded from challenging a discriminatory act or practice because they have no access to 

the evidence that would support their case. National procedural law governs the rules of discovery at this stage. The 

questionnaire procedure or any other similar measure can facilitate access to information.

45 

Igen Ltd (formerly Leeds Careers Guidance) and Others v Wong, Chamberlin and Another v Emokpae and Webster v Brunel 

University (2005) IRLR 258, para. 71.

46  C-104/10 Patrick Kelly v National University of Ireland (University College, Dublin).

47  Meister, para. 44.

48  Lustgarten, Laurence (1977). ‘Problems of Proof in Employment Discrimination Cases’. Industrial Law Journal 6, pp. 213-214 

and Allen, Dominique (2009). ‘Reducing the burden of proving discrimination in Australia’, Sydney L. Rev. 31, pp. 588-593.

49  Case C-167/97 Seymour-Smith and Perez.

37

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt vDuring the proceedings respondents are in general under a duty to provide the documents requested. Outside of 

civil cases, some administrative organs and the police can search the premises of respondents in order to recover 

documents.

V.3.   The form of discrimination to be proven

In  order  to  succeed,  plaintiffs  must  bring  evidence  on  all  the  elements  that  legally  constitute  particular  harmful 

conducts.  The  mode  in  which  the  burden  of  proof  is  reversed  is  not  uniform,  as  it  depends  on  these  elements. 

Discrimination occurs in various different forms, all codified in European law. Two types of discrimination, namely 

covert direct discrimination and segregation, await interpretation at the EU level. For the other forms of discrimination, 

the  constitutive  elements  are  clearly  defined  and  widely  interpreted  by  courts.  However,  in  practice  uncertainty 

remains as to the party by whom and the degree to which the onus of proof should be borne.

Under  the  post-2000  Directives  the  burden  of  proof  is  reversed  in  relation  to  both  indirect  as  well  as  direct 

discrimination. Indeed, it appears reasonable to apply the same evidentiary rules to all forms of discrimination and 

equally reasonable to apply them to more grievous forms, such as harassment and direct discrimination.

In European law direct discrimination is when one person is treated less favourably than another is, has been or 

would be treated in a comparable situation on grounds of his or her protected characteristic. The general definition 

of indirect discrimination is: where an apparently neutral provision, criterion, or practice would put persons having 

a  protected  characteristic  at  a  particular  disadvantage  compared  with  other  persons.  Harassment  is  unwanted 

conduct related to a protected ground with the purpose or effect of violating the dignity of a person and of creating 

an  intimidating,  hostile,  degrading,  humiliating  or  offensive  environment.  Even  if  the  purpose  is  not  to  harass, 

establishing a hostile environment that violates a person’s dignity (effect) is sufficient for a finding of harassment.

Harassment is a specific type of direct discrimination, where the less favourable treatment of a person having a 

protected characteristic is independent from the treatment others not having that protected ground receive. There 

is therefore no need for a comparator, as the bias is established on the basis of the violation of the dignity suffered 

by the victim. Segregation is not defined in European law. International law defines it as an independent type of 

discrimination,  while  the  European  Court  of  Human  Rights  defines  some  manifestations  of  segregation  as  direct 

discrimination  (class  and  school  level  segregation)  and  others  as  indirect  discrimination  (segregation  in  special 

schools).50 Victimisation and instructions to discriminate are supplementary conducts that lead to or arise from the 

other types of discrimination. Hence, establishing them is concomitant to establishing harassment, direct or indirect 

discrimination.

Direct discrimination can be obvious as in Feryn or disguised (overt or covert direct discrimination). A typical scenario 

of  covert  direct  discrimination  is  when  bars  or  clubs  maintain  a  members-only  entrance  policy,  but  membership 

directly discriminates on the basis of a protected ground.

First on the ground of gender and then under the Employment Equality Directive, the CJEU has identified as direct 

discrimination cases in which a formally neutral rule (internal or legal) in fact affects one group only. In Nikoloudi, 

the CJEU examined a rule that reserved established staff positions to persons with full time jobs.51 However, not only 

were the part-time workers all women, but the staff regulations made it possible only for women to obtain a part-

time contract for the particular job category. Maruko pertained to German law, which permitted life partnership to 

50  For a detailed analysis, see Lilla Farkas (March 2014), Report on Discrimination of Roma Children in Education, publication 

forthcoming.

51  Case C-196/02 Nikoloudi v Organismos Tilepikinonion Ellados AE, paras. 31-36.

38

n ReveRsing the buRden of pRoof nTHEMATIC REPORT 
same sex couples but did not allow marriage. Mr Maruko survived his life partner who had been making payments 

into an occupational pension fund. He applied for a survivor’s pension from the fund but was refused. The CJEU ruled 

that in relation to survivor’s pension paid out of an occupational pension fund life partnership between persons of 

the same sex was a comparable situation to that of spouses.52

The common feature of covert direct discrimination based on practice and direct discrimination based on exclusive 

effect emanating from a formal rule is that the groups suffering the less favourable treatment, similarly to their 

comparator  groups,  are  homogeneous.  This  also  sets  these  types  of  conduct  apart  from  indirect  discrimination, 

where both groups are heterogeneous, even though people with a protected characteristic are overrepresented in the 

one suffering the particular disadvantage. On the other hand, they are underrepresented in the comparator group.

Under the Racial and Employment Equality Directives, the CJEU has ruled on one indirect discrimination case, involving 

age, while direct and indirect discrimination can be justified according to the same rule.53 The concerns that remain 

relate to the degree of difference between the effects of a certain criterion or practice on the comparable groups: do 

all members of the protected group need to be affected or is it enough if a considerably bigger percentage of the 

protected group is affected, or a lesser but persistent and relatively constant disparity over a long period is shown?

The  first  claim  involving  harassment  under  the  Non-discrimination  Directives  concerned  a  mother  who  was  the 

primary care giver of a disabled child. Harassment included: the labelling of the mother as ‘lazy’ when she asked 

for time off to care for her son, even though this was granted to parents of non-disabled children; inappropriate and 

insulting comments made about both her and her child, whereas other employees could take time off to look after 

their non-disabled children without having to face such comments; and threats of dismissal when she occasionally 

arrived late for work due to her child’s condition, which again were not made to other employees.54

The reversal of the burden of proof did not seem to cause difficulties in these cases. However, there are uncertainties 

in  national  laws  relating  to  the  definition  of  a  degrading  environment  because  it  can  be  subjective  or  objective, 

meaning that what is a degrading environment to a certain victim may not appear to be degrading more generally 

to people without a protected characteristic.

The  Non-discrimination  Directives  define  victimisation  as  any  adverse  treatment  or  adverse  consequence  as  a 

reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment. Both 

Non-discrimination Directives prohibit instructions to discriminate.

The Employment Equality Directive places employers under the duty to ‘take appropriate measures, where needed 

in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, 

or to undergo training, unless such measures would impose a disproportionate burden on the employer’. This burden 

is not disproportionate when it is sufficiently remedied by measures existing within the framework of the disability 

policy  of  the  Member  State  concerned.  The  requirement  to  make  reasonable  accommodations  for  persons  with 

disabilities is often subject to the limitation that it should not create a ‘disproportionate burden’ for the employer. 

The Directive provides an indication of three criteria to be taken into account when determining whether a particular 

accommodation  provided  is  reasonable  (Recital  21  of  the  Preamble).  The  three-legged  test  is  based  on:  1.  the 

financial and other costs entailed; 2. the scale and financial resources of the organisation or company; and 3. the 

possibility of obtaining public funding or any other assistance. It is not clear in many national legislations whether 

the failure to provide reasonable accommodation is direct or indirect discrimination.

52  Case C-267/06 Tadao Maruko v Versorgungsanstalt der deutschen Bühnen.

53  Case C-132/11 Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH v Betriebsrat Bord der Tyrolean Airways Tiroler Luftfahrt 

Gesellschaft mbH.

54  Case C-303/06 S. Coleman v Attridge Law and Steve Law.

39

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt vHendrikus | 1953

THEMATIC REPORTn ReveRsing the buRden of pRoof nV.4.   Conduct

European law does not specifically define the types of conduct that are prohibited. The wording used suggests that 

not only actions but also omissions and failures to act or to give due consideration to protected grounds can lead to 

discrimination. The words used to describe the different types of discrimination are: treatment, provision, criterion or 

practice that would put persons at disadvantage, unwanted conduct, and adverse consequence.

V.5.   Harm

Harm is either less favourable treatment (direct discrimination), particular disadvantage (indirect discrimination) or 

the violation of the dignity of a person (harassment and segregation). Discrimination may cause material as well as 

immaterial damage. Generally in cases of harassment and segregation, it is the feeling of inferiority and degradation 

that constitutes the harm done.

V.6.   Protected ground

The grounds of discrimination protected under European law are not defined and they are not ranked in a formal 

hierarchy or subject to diverse levels of scrutiny.55 At the same time, in the fields of nationality and gender courts 

in the EU may be more receptive on account of the long-standing EU level protection. A similar receptiveness may 

be one of the reasons for the many referrals based on the ground of age. Notwithstanding the apparent uniformity 

of approach, Samantha Besson notes a higher level of scrutiny in the CJEU’s case law on nationality as well as age 

when compared to gender.56

In  contrast,  the  European  Court  of  Human  Rights  operates  a  system  of  suspect  grounds,  which  include  gender, 

sexual orientation, race and ethnic origin. For instance, it characterises the status of the Roma as being particularly 

vulnerable. However, falling into one of the suspect grounds – especially gender – does not automatically result 

in the application of the reversal of the burden of proof or the same level of scrutiny pertaining to States Parties’ 

justification defences.57

Gender,  race  and  disability  have  been  shown  to  be  social  constructs,  which  entails  that  their  understanding  is 

complex and dependent on a given social context.58 This may well be the case for other grounds as well. For instance, 

pregnancy-related discrimination could be perceived as giving rise to indirect gender discrimination, had the CJEU 

not interpreted pregnancy being a condition that not only denotes the female sex, but that is so inextricably linked 

to  being  a  woman  that  discrimination  based  on  pregnancy  amounts  to  direct  gender-based  discrimination.  This 

interpretation  was  certainly  helpful  in  overcoming  the  comparator  problem  in  cases  of  discrimination  based  on 

pregnancy, for men can never be pregnant. Ellis and Watson propose that the approach adopted by the CJEU in 

relation to pregnancy could perhaps be followed in cases of race discrimination where less favourable treatment is 

based on colour.59

55  Although some argue that the scope of protection defines a certain hierarchy: see Lisa Waddington, Mark Bell (2001), ‘More 

Equal than Others: Distinguishing European Union Equality Directives’, 38 Common Market Law Review, Issue 3, pp. 587-611.

56  Samantha Besson (2008). ‘Gender Discrimination under EU and ECHR Law: Never Shall the Twain Meet?’, Human Rights Law 

Review, pp. 19-21.

57 

Ibid., pp. 21-27.

58  This is true for age as well, where the ability of workers of all ages is judged on the basis of stereotypes. Sargeant, Malcolm 

(2012). Age discrimination in employment. Gower Publishing Ltd., pp. 6-8.

59  Ellis, E. and Watson, P. (2012). EU Anti-Discrimination Law. Oxford: Oxford University Press, p. 167.

41

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt v 
 
 
The lack of clear definitions complicates the identification of comparators. If the protected grounds are complex 

and socially constructed concepts, their definitions must necessarily be complex as well. Similarly to gender and 

pregnancy, the complexity of other protected grounds may have consequences with regard to whether courts find 

direct  or  indirect  discrimination  in  a  case.  The  issue  then  becomes:  if  only  one  or  two  aspects  of  such  complex 

definitions are implicated by an apparently neutral practice, then one may be led to consider the case as indirect, 

rather than direct discrimination. This may be the case, for instance, in relation to ethnic origin and minority language.

The CJEU has so far examined only one case that has dealt with minority language. In Runevič-Vardyn the refusal 

by the Lithuanian authorities to use the plaintiff’s Polish national language of origin in documents of civil status was 

challenged as a form of indirect discrimination based on ethnic origin. The CJEU held that the recording of names 

on civil status documents did not fall within the substantive scope of the Racial Equality Directive because it did not 

constitute a ‘service’.60

The issue of minority language as a protected characteristic was examined by the European Court of Human Rights 

(ECtHR) in Orsus and Others v Croatia.61 The ECtHR found discrimination, without specifying its type. The press release 

issued by the Registrar was entitled ‘Segregating Roma children in Croatian primary schools discriminatory’.62 In this 

case, the 14 applicants at times attended separate classes that were made up of Roma pupils alone and where the 

curriculum was reduced by up to 30%. They were educated in segregated classes for considerable periods of their 

time in school, allegedly to receive catch-up education in the majority language, some being transferred to these 

separate classes after a spell in ordinary classes. The applicants claimed direct ethnic origin-based discrimination on 

account of their placement in segregated classes and the inferior quality of education, while the Croatian Government 

sought to use the applicant’s inadequate command of the Croatian language and the lack of involvement of their 

parents as justification for their placement in separate classes.

The ECtHR assessed Orsus on the basis of its test used in cases of direct discrimination. After establishing that the 

applicants’ protected characteristic was their ethnic origin it set out to examine ‘whether there was a difference in 

treatment’.  It  found  that  the  applicants  ‘attended  regular  primary  schools  and  that  the  Roma-only  classes  were 

situated in the same premises as other classes’, while the available statistics suggested that ‘it was not a general 

policy to automatically place Roma pupils in separate classes in both schools at issue’.63 However, ‘the measure of 

placing children in separate classes on the basis of their insufficient command of the Croatian language was applied 

only in respect of Roma children’ (emphasis added).64

European law prohibits unequal treatment on the grounds of racial or ethnic origin, religion or belief, disability, age, 

sexual orientation, sex and nationality. There is no European definition of protected grounds other than sex/gender, 

which includes not only biological sex but also transgenderism. The CJEU reserves the right to provide a European 

definition of protected grounds. However, some Member States may define ethnic origin or disability very narrowly or 

acknowledge a group as a religious instead of an ethnic group. National laws may be divided on transgender people, 

protecting them under sex or sexual orientation. Some national laws may protect Scientology and certain new age 

religious convictions, whereas others do not

60  Case C-391/09 Malgožata Runevič-Vardyn, Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija, Lietuvos 

Respublikos teisingumo ministerija,Valstybinė lietuvių kalbos komisija, Vilniaus miesto savivaldybės administracijos Teisės 

departamento Civilinės metrikacijos skyrius, para. 46. The Court noted that the travaux to the Directive record that the 

Council refused to take into account an amendment proposed by the European Parliament whereby ‘the exercise by any 

public body, including police, immigration, criminal and civil justice authorities, of its functions’ would fall within the scope of 

the Directive. This decision of course reduces the impact of the Race Directive significantly.

61  Orsus and Others v Croatia, Grand Chamber Judgment of 16 March 2010.

62  Press release issued by the Registrar, No 217, 16.03.2010.

63  Orsus and Others, para. 152.

64  Orsus and Others, para. 153.

42

n ReveRsing the buRden of pRoof nTHEMATIC REPORTRace and ethnic origin certainly includes belonging to a particular race, skin colour, national or ethnic origin. It also 

includes Roma, Travellers, etc. Ethnic minorities are identified both by themselves and by others as people with a 

shared history, culture and traditions, who possibly speak a minority language and adhere to a minority religion. One 

of the dividing lines between race and ethnic origin is the length of time for which a given minority group has been 

present in a Member State. Domestic laws focus on the following factors when legislating on ethnic minority rights: 

a  long  shared  history,  cultural  tradition,  common  geographic  origin  or  descent,  common  language  and  common 

religion.

The CJEU ruled that ‘illness in itself’ does not amount to disability, but that in the context of the Employment Equality 

Directive it must be understood as ‘a limitation resulting notably from physical, mental or psychological afflictions, 

hindering the participation of the person in question in professional life’.65

Age may apply to all ages including youth and old age. Age is a protected ground in relation to employment, which 

in practice would in principle exclude people under 16, but in general there is no upper age limit.

Religion or belief may apply to different religious or philosophical beliefs, background, outlook or none (from deists 

to atheists), if the personal views or convictions are coherent and possess a certain degree of importance, force and 

seriousness. This means that one does not necessarily have to belong to an ‘established’ church to be protected on 

the ground of religion or belief.

Sexual orientation comprises gay, lesbian, bisexual or heterosexual orientation. According to national law, transgender 

people may be covered on this ground or the gender/sex ground.

Sex or gender denotes whether a person is a man, a woman or a transsexual person. The CJEU held that discrimination 

against a transsexual constituted discrimination on the grounds of sex.66

Nationality applies to the nationality of EU citizens (nationals of a Member State) in relation to freedom of movement 

of workers, etc. Nationals of third countries are not protected  on the ground  of  their  nationality  under  the  Non-

discrimination Directives.67 They may be protected, however, on the ground of their race or ethnic origin, disability, 

age, sexual orientation, religion or belief. They may also rely on protection arising from gender equality provisions.

In certain cases, real life comparators cannot be identified. European law permits the use of hypothetical comparators. 

In some Member States discrimination can be established with a view to an ideal minimum standard of treatment, 

for instance conduct required by a respect for human dignity.

Finally, there is another set of considerations relating to identifying the protected ground as well as the comparator. 

Less  favourable  treatment  may  be  meted  out  on  the  basis  not  only  of  a  real  characteristic  -  when  the  ground 

perceived by a third party and identified by the plaintiff is the same – but also on an assumed or associated ground. 

Often, people may be assumed by others to belong to a minority ethnic or religious group or be taken to belong to 

the LGBT community, regardless of their self-identification. In some instances people associated with those having 

or being assumed to have a protected ground – as friends, spouses, etc. – are also subjected to less favourable 

treatment. European law provides protection in these cases and the reversal of the burden of proof applies as well.68 

The  issue  of  multiple  discrimination  is  less  straightforward.  European  law  is  ground-specific,  and  thus  protects 

65  Case C-13/05 Sonia Chacón Navas v Eurest Colectividades SA. 

66  Case C-13/94 P v S and Cornwall County Council.

67  See Article 3, para. 2 of both the Racial and the Employment Equality Directives.

68  The CJEU held that the prohibition of direct discrimination and harassment in the Employment Equality Directive was not 

limited only to persons who were themselves disabled. This prohibition extended to an employee whose child was disabled 

and who was the primary care giver to her child. Case C-303/06 Coleman.

43

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt vdifferent grounds to different degrees. It provides different levels of protection even for the best protected grounds 

of race and sex, which may cause problems for the adjudication of multiple discrimination claims. The Racial Equality 

Directive’s Preamble stresses that multiple discrimination may take place on the combined gender and race or ethnic 

origin grounds (Preamble, recital 14). Clearly, if the protected ground is assumed, associated or multiple, facts from 

which this may be presumed must be presented in the proceedings.

V.7.   Comparators

Bearing in mind the definitions of discrimination, when examining how the reversal of the burden of proof is applied 

in practice, the essential delineation must take place between direct and indirect discrimination. Both forms turn 

on the demonstration of less favourable treatment of a person or group in comparison to another person or group. 

From the definitions, it may be surmised that while in the case of direct discrimination the person or group in the 

original pool have the same protected characteristic, the comparator person or group do not have this characteristic. 

In other words, a person or group homogenous in the sense of having the protected characteristic is compared to 

another person or group homogeneous in the sense of not having the said protected characteristic. In contrast, in 

the case of indirect discrimination a heterogeneous group is compared to another heterogeneous group. While in 

the original pool persons having a protected characteristic are overrepresented, they are underrepresented in the 

comparator group.

The  significance  of  identifying  homogenous  groups  when  making  the  comparison  is  borne  out  by  the  CJEU’s 

judgments  in  Nikoloudi  and  Maruko.  Although  this  strand  of  the  case  law  examined  a  single  normative  source 

behind the formation of homogenous groups – internal company rules such as staff regulations and national rules 

on marriage and civil partnership – one can make the reasonable assumption that in cases where an (apparently 

neutral) provision, criterion or practice resulted in the less favourable treatment of a homogenous group compared 

to another homogenous group, the finding would still be direct, rather than indirect, discrimination.

The issue of whether it is direct rather than indirect discrimination if an apparently neutral criterion is – on closer 

examination – not entirely neutral vis-à-vis the protected ground has not yet been adjudicated by the CJEU. Nor has 

the CJEU had occasion to deliberate on facts that reveal a difference in treatment between a homogenous group 

with a protected characteristic and a heterogeneous group where persons having the protected characteristic are 

grossly underrepresented. Examining the facts of Orsus and Others v Croatia69 discussed above at 7.6. under the 

Racial Equality Directive, two counts of direct ethnic origin-based discrimination can be established: segregation at 

class level on the one hand and the provision of lower quality education on the other. True, not all Romani children 

were segregated at class level in all the schools under review, but the applicants had been. The criterion on the basis 

of which they suffered segregation was their minority language, which exclusively applied to them. What may cause 

difficulties in classifying this case as direct discrimination is that the ethnically homogenous group of Roma in the 

segregated classes had to be compared to a heterogeneous group where Roma were present, even though grossly 

underrepresented. However, in relation to segregation it must be noted that even if it arises due to a criterion or 

practice that is apparently neutral vis-à-vis the protected ground – in this case ethnic origin and/or race – its effect, 

the physical separation of Romani students from non-Romani students, cannot but be noticed.

Establishing a presumption of indirect discrimination seems less cumbersome. This ‘numerical trade-off’ is balanced 

out  in  two  respects.  First,  plaintiffs  in  cases  of  indirect  discrimination  must  show  ‘particular  disadvantage’  –  as 

opposed to the less stringent ‘less favourable treatment’ test. Second, such lenience is also remedied at a later 

stage, namely during justification. While justifications for direct discrimination – except for the ground of age – are 

construed narrowly in European law, a wide range of justifications are available for indirect discrimination. Gender 

69  Orsus and Others v Croatia, Grand Chamber Judgment of 16 March 2010.

44

n ReveRsing the buRden of pRoof nTHEMATIC REPORT 
and race-based direct discrimination appear to be the most difficult to justify, justification being limited to positive 

action measures and genuine and determining occupation requirements. Still, the initial hurdle of making out a prima 

facie case of direct discrimination appears to be higher than showing a prima facie case of indirect discrimination.

In  the  minority  of  cases  the  respondent  ‘lets  it  be  known’,  i.e.  essentially  confesses  to  the  causal  link  between 

the protected ground and the conduct – as in Feryn and Accept. Clearly, in such cases no comparator needs to be 

identified because the respondent admits to the bias. However, the most common way of establishing bias is to 

show that another person or group that differs from the plaintiff in not possessing his/her protected characteristic is 

treated more favourably. Difficulties often arise in identifying the comparators and obtaining information about the 

treatment meted out to them because as a general rule such information is held by the respondent.

The definition of direct discrimination allows for the use of hypothetical comparators. Hypothetical comparators are 

used if a real life comparator cannot be identified to facilitate the establishment of facts which may give rise to 

a presumption of discrimination. Constructing a hypothetical comparator is not an easy task, but it must under all 

circumstances lead to a comparator that factors out the protected ground(s) invoked.70 Alternatively, a hypothetical 

comparator can be construed on the basis of an ideal minimum standard of treatment. For instance, this may be the 

case if the less favourable treatment is manifested in conduct that constitutes an otherwise unprecedented or gross 

violation of human dignity. Furthermore, in various Member States the focus of analysis has been on the arbitrary 

nature of different treatment, rather than on actual comparisons. Indeed, it is suggested that ‘if it is not possible to 
find a comparator, a plaintiff may be able to compare the treatment suffered against a substantive ideal of human 

dignity or standard of treatment that is widely acknowledged’.71

The comparison is an evidentiary exercise to assist in building the causation on the part of the plaintiff up to the 

level of a prima facie case, i.e. when a presumption can be made.72 Once the comparison is made, on the balance 

of probabilities discrimination shall be presumed to have taken place. When courts run into difficulties in building a 

comparison, it may very well result from the fact that the form of discrimination under review is not direct or indirect 

discrimination.  As  explained  above,  in  the  case  of  harassment,  no  comparator  is  needed  to  show  discrimination. 

Another  difficulty  may  arise  when  a  real  comparator  does  not  exist  and  a  hypothetical  comparator  needs  to  be 

construed. Not being able to identify homogenous groups to be compared may also result in uncertainty. Finally, it is 

imperative to note that once a respondent publicly admits his bias and/or discriminatory intent, finding a comparator 

becomes pointless because the causation is complete.

V.8.   Bias, causation, negligence and intent

At the heart of discrimination lie prejudice, bias and/or stereotypes that pertain to the ground on the basis of which 

less  favourable  treatment  is  meted  out.  The  juridification  and  subsequent  technicalisation  of  anti-discrimination 

discourse at the European level may divert attention away from the underlying fundamental issue. As Laurence 

70  On the details of constructing hypothetical comparators, see Paul Epstein QC and Dee Masters (16 June 2011). Direct 

Discrimination: A Practical Guide to Comparators. London: Cloisters Chambers.

71 

Interights suggests that under the Non-Discrimination Directives such comparison is possible. See Non-Discrimination in 

International Law: A Handbook for Practitioners (2011). Interights, pp. 105-106.

72  As Lustgarten notes: ‘discrimination is inherently a matter of comparison’. Lustgarten, Laurence (1977). ‘Problems of Proof 

in Employment Discrimination Cases’, Industrial Law Journal 6, p. 225. We certainly agree with this statement in relation 

to direct and indirect discrimination. McColgan, on the other hand, calls attention to the fact that by failing to run the 

comparison exercise properly - partly by disregarding already existing discrimination in the relative position of the groups 

compared - courts may prevent claims from proceeding to the next stage, including that of justification by the respondent. 

McColgan, Aileen (2006). ‘Cracking the Comparator Problem: Discrimination, “Equal” Treatment and the Role of Comparisons’, 

European Human Rights Law Review 6, pp. 650-677.

45

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt v 
Trinette | 1967

THEMATIC REPORTn ReveRsing the buRden of pRoof nLustgarten put it almost 20 years ago: ‘discrimination is not a response to a given individual’s character or behaviour, 

but rather a repeated and unthinking reaction to any person who possesses a particular trait’.73 What follows from 

this is that ‘discrimination is fundamentally a group wrong: a person is badly treated because he is, involuntarily, a 

member of a group’ disliked by the respondent or by society at large.74

From this perspective, the unsaid assumption that indirect discrimination may be less directly linked to bias and 

therefore more benign than are the other forms of discrimination becomes less convincing. Indeed, the showing of 

bias or stereotypes is essential in cases of indirect discrimination as well, only here the focus is on the effects rather 

than the source of such sentiments. Harm may arise on the basis of biased intent but it may equally result from 

widely held stereotypes that out of negligence are not reflected upon.

The  central  question  of  proceedings  is  therefore  how  to  uncover  that  such  bias  is  at  work,  especially  if  it  is  not 

directly manifested in the case at hand. Finding the right comparator is part of the answer because it connects to 

membership in a group that prejudice or bias targets.

The sanction most commonly imposed in cases of discrimination is compensation. In general, in civil cases where 

compensation is sought, a causal link must be established between the respondent’s conduct and the harm suffered 

by the plaintiff. If a causal link is established between the conduct and the harm, it falls to the respondent to show 

that he acted according to his duty of care (ex culpatio). This stage is equally present in cases of discrimination. 

Cases  of  discrimination  are  not  different  from  torts  in  that  before  judgment  is  rendered,  the  causation  must  be 

complete. However, in cases of discrimination comparison completes causation.

In actions brought because of discrimination, causation is not a one but a two-tier exercise. Beyond a causal link 

between the conduct and the harm, another causal link between the protected ground and the conduct must also be 

established to show the bias, prejudice or stereotypes that led to a particular conduct. In practice, this stage often 

poses insurmountable hurdles for plaintiffs. Therefore, it is at this point where they are most in need of effective 

judicial protection.

The relevant provisions of European law are not crystal clear about the burden on parties in establishing causation. 

Plaintiffs bear the burden of establishing facts that point to a probable causal link between the protected ground 

and the conduct. Moreover, the burden of proof provision does not alleviate the burden on plaintiffs to establish the 

causal link between conduct and harm. This link needs to be made out before the likeliness or probability of a causal 

link between the conduct and the protected ground is shown. The key effect of the reversal of the burden of proof 

is that it alleviates the burden on plaintiffs to show a clear causal link between the protected ground and the harm. 

Consequently, the burden of proof shifts even if the causation between the protected ground and the harm is only 

probable or likely.

73  Lustgarten, Laurence (1977). ‘Problems of Proof in Employment Discrimination Cases. Industrial Law Journal 6: 216.

74 

Ibid.

47

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt vAny party can refute the allegations
made by the other party throughout the
entire procedure

harm    ——————————   conduct    - - - - - - - - - - - - -  protected ground

Following from the structure of torts, when the bias is examined, respondents may show that they are not liable. 

What they need to demonstrate is that they acted within the boundaries of their duty of care when dealing with bias, 

prejudices or stereotypes. They can put forward ‘an innocent explanation that breaks the chain in the causal links’ 

and thus stops causation from becoming complete.75 What may cause further difficulties at this stage is to arrive 

at a commonly held view on what constitutes a duty of care when it comes to bias – particularly if such views are 

widely held in a given society and are perhaps left unchallenged or unreflected upon until an action for discrimination 

is instituted.

The causal link between the protected ground and the conduct may vary as to the degree of severity. In general, in 

continental European legal systems it is enough to show that a respondent failed to meet his duty of care or that 

he was negligent in his conduct. However, a breach of the duty of care may also take the form of intent: willing 

discrimination to occur or realising that it may occur as a consequence of the respondent’s conduct. It would appear 

reasonable to conclude that negligent conduct may result in a finding of indirect discrimination, whereas intentional 

conduct may lead to a finding of direct discrimination – or of one of its alternative forms, such as harassment and, 

arguably, segregation.

Two  observations  need  to  be  made  here.  First,  as  Ellis  and  Watson  recall,  under  sex  discrimination  case  law 

emerging through the teleological reading of the Treaty provision regulating equal pay, no intention or subjective 

motivation needed to be shown because what mattered was that employers’ practices did not have an effect that 

75  This quote is taken from Declan O’Dempsey’s insightful intervention at the Legal Seminar on the Enforcement of Equality 

and Anti-discrimination Law held in Brussels on 28 November 2014.

48

n ReveRsing the buRden of pRoof nTHEMATIC REPORTwould  disadvantage  one  sex.76  Second,  it  was  recognised  early  on  that  the  intent-based  distinction  is  not  that 

straightforward at all.77

In the context of racial discrimination, Ambrus, Busstra and Henrard call attention to a ‘mismatch’ that follows from 

the focus on the allocation of the burden of proof without paying due respect to the substantive concepts of direct 

and indirect discrimination.78 They note that in the definition of direct discrimination the word ‘treatment’ seems to 

suggest that courts need to look for an ‘action’, which, however, would not be the right teleological reading of the 

Racial Equality Directive. Further on, they argue against the simplified understanding of direct race discrimination 

as resulting from a direct link between the ground of race and the conduct on the one hand and the ground of 

race and the harm on the other. Such a reading in their view would run the risk of classifying all instances of race 

discrimination where evidence pertains to the effect and not necessarily to the motive – including those of covert 

race discrimination – as indirect discrimination. Particularly when the focus is on the failure to accommodate the 

special needs of an ethnic group – a formula well-known from ECtHR case law on the Roma – the finding could only 

be indirect discrimination. They propose that the proper design of comparisons can alleviate such difficulties and 

argue that once a comparison is made between homogenous groups, only direct discrimination can be established.

Judges at the national level may also harbour doubts as to whether or not intent must be shown in order to establish 

direct discrimination and to the nature of causation in cases of discrimination. This is borne out by the preliminary 

referrals in Feryn and Accept, which query whether one public statement of clear bias in recruitment practices is 

enough to prove that such practice is indeed discriminatory.

Curiously, the most significant debate over the burden on plaintiffs to prove intent took place not in front of the 

CJEU, but before the European Court of Human Rights in D.H. and Others.79 In this case the applicants alleged both 

direct and indirect discrimination in relation to the misdiagnosis of Romani children as mentally disabled and their 

subsequent segregation in special schools. While the Chamber did not find a violation of the right to equal treatment 

in  education,  precisely  because  the  applicants  failed  to  show  intent  on  the  side  of  state  officials  who  examined 

the children or made decisions on their placement in special schools, on appeal the Grand Chamber reversed the 

judgment.  While  applying  the  reversal  of  the  burden  of  proof,  it  found  in  favour  of  the  applicants,  establishing 

indirect discrimination on the basis of circumstantial evidence.

The two European courts’ practice regarding the allocation of the burden of proof has been portrayed as identical.80 

It should be borne in mind, however, that the Strasbourg mechanism allows for the justification of discrimination 

regardless of the ground and the form, i.e. whether it is direct or indirect discrimination.81 The reason why the point 

76  Ellis, E. and Watson, P. (2012). EU Anti-Discrimination Law. Oxford: Oxford University Press, p. 163.

77 

‘Forms of direct sex discrimination are quite conceivable without sex being expressly mentioned in the contract of 

employment, pay scales or collective agreement as the criterion for the higher or lower pay. The conceptual scheme of that 

category makes it clear that discrimination does not even have to have been intentional.’ Opinion of Advocate-General Lenz 

of 14 July 1993 in Case C-127/92 Enderby.

78  Monika Ambrus, Marjolein Busstra, and Kristin Henrard (2010). ‘Racial Equality Directive and Effective Protection against 

Discrimination: Mismatches between the Substantive Law and Its Application’, Erasmus L. Rev. 3 (2010), pp 165-180.

79  D.H. and Others v the Czech Republic, Grand Chamber Judgment of 13 November 2007.

80  Handbook on European non-discrimination law (2010). European Union Agency for Fundamental Rights 2010 and Council of 

Europe, pp. 125-130.

81  Based on case law up to 2008, Samantha Besson argues that the ECtHR is not consistent in applying the justification 

defence on the ground of gender and sexual orientation. Samantha Besson (21 October 2008). ‘Gender Discrimination under 

EU and ECHR Law: Never Shall the Twain Meet?’, Human Rights Law Review, pp. 24-27. Notably, however, from Zarb Adami v 

Malta (Judgment of 20 June 2006) up to the recent judgment in Konstantin Markin v Russia (22 March 2012) the application 

of key anti-discrimination concepts has become clearer.

49

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt vJort | 1994

THEMATIC REPORTn ReveRsing the buRden of pRoof nwhen the burden of proof reverses is not so evident from the case law may be that the ECtHR reaches its conclusions 

on the basis of all the evidence before it.82

Plaintiffs in Europe thus do not bear the burden of establishing discriminatory intent in civil proceedings. However, 

this does not mean that they do not bear some of the burden of establishing causation between the conduct and the 

harm on the one hand, and the protected ground and the conduct on the other. The relevant provisions of European 

law are not crystal clear in this respect. What is clear, however, is that plaintiffs do not bear the entire burden of 

establishing the causal link between the conduct and the protected ground. They must bring forward evidence that 

makes it seem probable that discrimination occurred. European law provides for the reversal of the burden of proof 

when victims establish, before a court or other competent authority, facts from which it may be presumed that there 

has been direct or indirect discrimination. From this point on, it is for the respondent to prove that there has been no 

breach of the principle of equal treatment. If and when the respondent fails in his justification defence, causation 

will be complete.

More  favourable  rules  can  be  introduced  in  national  laws.  Various  Member  States  transposed  the  provisions  on 

the reversal of the burden of proof by requiring plaintiffs to prove the existence of harm (disadvantage) and their 

protected characteristic – be that a real, assumed or associated ground. On the basis of these two elements, national 

law establishes a presumption of discrimination that can be disproved by respondents. In other words, once a plaintiff 

succeeds in proving harm and her/his protected characteristic, the causal link between the two is presumed to exist.

In  summary,  the  reversal  of  the  burden  of  proof  is  a  procedural  rule  that  must  be  read  in  conjunction  with  the 

definition of the type of discrimination invoked. It connects evidence to the demonstration of bias and derails the 

course of proceedings at two distinct junctions: (i) it lowers the onus of proof (presumption) resting on the plaintiff 

in relation to the causal link between the protected ground and the conduct (prima facie case), while (ii) placing and 

limiting the remaining onus of proof in relation to bias onto the respondent (justification defence).

Striking  the  right  balance  between  the  parties  in  relation  to  establishing  the  bias  is  a  tremendous  task  that  in 

optimal cases entails awareness of the functioning of societal stereotypes and power relations in the wide variety of 

scenarios to which European non-discrimination law pertains. Indeed, the very function of the reversal of the burden 

of proof is to ‘factor in’ such bias to the evidentiary rules for the benefit of those who suffer it.

While  in  general,  ensuring  access  to  evidence  held  by  the  respondent  once  a  prima  facie  case  is  made  appears 

to be straightforward in cases when the plaintiff is ‘in’ – such as equal pay, promotion and access to vocational 

training – national courts are awaiting clear guidance from the CJEU on cases in which the plaintiff is ‘out’ – such as 

recruitment and access to services including housing. This is the essential reason why questions relating to the prima 

facie case have been referred to the CJEU in the cases of Feryn, Kelly, Meister and Accept.

In Kelly and Meister the CJEU made it clear that the Directives do not entitle plaintiffs to information in order to 

establish a prima facie case. However, it is not ‘inconceivable’ that a refusal of disclosure by the respondent could 

have the effect of undermining the useful effect of the law. It is for national courts to ensure that the refusal of 

disclosure is not liable to compromise the achievement of the objectives of the Directives. Account must be taken 

of all the circumstances – including refusal of access to information and a job applicant’s adequate qualifications 

– in order to determine whether there was sufficient evidence for a finding that there was a prima facie case of 

discrimination.

82  Bernadette Rainey, Elisabeth Wicks and Clare Ovey (2014). The European Convention on Human Rights. Jacobs, White and 

Ovey, p. 590. 

51

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt vShould national courts continue to make referrals on points of evidence, the CJEU may in the future have further 

opportunities to interpret the mismatch between the Directives not granting the plaintiffs access to information on 

the one hand and the lack of prohibition to access such information on the other. Kelly and Meister have demonstrated 

that the purpose of the reversal of the burden of proof may be defeated in cases of access to employment, etc. It 

is to be seen whether the CJEU further interprets the relevant provisions to maintain effective judicial protection 

against discrimination in a way that would aid plaintiffs’ access to information already in the phase leading up to 

the prima facie case.

Inspiration for such a step may be drawn from Oxford v Department of Health and Social Security, where the lack 

of information was examined in relation to sex discrimination. The Industrial Tribunal declined a submission of no 

case to answer. Phillips J gave the following reasons for the decision: ‘It seems to us that the [decision] was a very 

proper course to have adopted, and we recommend it as being the course which is in most circumstances the right 

course to adopt. It further seems to us that, while the burden of proof lies upon the applicant, it would only be in 

exceptional or frivolous cases that it would be right for the Industrial Tribunal to find at the end of the applicant’s 

case that there was no case to answer and that it was not necessary to hear what the respondent had to say about 

it’ (emphasis added).83 In any case, a woman needs to show that a man was accorded different treatment to have 

a case to answer. However, the difference does not have to be demonstrated in more detail. Certainly, information 

as to the sex, age and at least to the proxies of ethnic origin can be obtained from respondents in a way that does 

not permit the identification of an individual otherwise not party to the proceedings. This may be the first step out 

of the ‘Meister trap’.

Notably, subsequent case law in the United Kingdom moved towards a stricter approach. As Aileen McColgan explains, 

‘in Madarassy the Court of Appeal clarified elements of the approach set out in Igen v Wong, stating that the burden 

of  proof  should  only  shift  to  the  respondent  when  the  claimant  had  provided  sufficient  material  from  which  a 

reasonable tribunal could properly conclude that, on the balance of probabilities, the respondent had committed an 

unlawful act of discrimination. If the respondent was unable to provide an adequate explanation for the behaviour 

in question, this only became relevant if a prima facie case is proved by the plaintiff, i.e. the respondent’s inability to 

give a satisfactory explanation for his conduct would only establish liability when sufficient evidence existed to shift 

the burden. The Court of Appeal also concluded that the same approach to the burden of proof should apply where 

a hypothetical comparator was used’ (emphasis added).84 We must bear in mind, however, that at the time of the 

Madarassy judgment plaintiffs in the UK had recourse to a statutory questionnaire procedure.

Significantly, the reversal of the burden of proof does not take away the right from either party to rebut or refute 

allegations made or evidence brought forward in the case. The course of the justification defence is the same as 

it would be in any claim for compensation (tort claim), while the limitations of a justification defence are provided 

either in the statutory definition of discrimination or the provisions pertaining to the permissible exceptions.

The following stages chart can aptly demonstrate the functioning and the dilemmas concerning the reversal of the 

burden of proof.

83  Oxford v Department of Health and Social Security [1977] ICR 885.

84  Madarassy v Nomura International Plc [2007] EWCA Civ 33, [2007] ICR 867, [2007] IRLR 246, 26. Aileen McColgan (January 

2007). Report on measures to combat discrimination: Directives 2000/43/EC and 2000/78/EC [Country report 2012, United 

Kingdom]. European Network of Legal Experts in the Non-discrimination Field.

52

n ReveRsing the buRden of pRoof nTHEMATIC REPORTV.9.   Prima facie cases: the point of (no) return

A  prima  facie  case  is  made  once  facts  have  been  established  that  call  for  an  explanation  and  one  plausible 

explanation may be that discrimination has taken place. What constitutes a presumption of discrimination is the 

million dollar question. In order to answer this question, one needs to look to what facts constitute discrimination.

The two extremes of prima facie cases can be demonstrated through two judgments rendered by the CJEU. In Enderby, 

the court found a prima facie case when it was shown that the pay of speech therapists was significantly lower than 

that of pharmacists, and that the former were almost exclusively women while the latter were predominantly men.85 

The finding in Enderby was based on showing harm: an almost homogeneous group had a protected characteristic 

while a majority of a heterogeneous group did not. The comparison between the two groups could be drawn on the 

basis of statistical evidence. The strength of the statistical evidence substantiated a presumption of a causal link 

between the protected ground (gender) and the harm (lower pay).

In Feryn, on the other hand, an employer’s public statements pertaining to his refusal to recruit any employees of 

a certain racial origin and the fact that he had not hired applicants from that racial origin constituted a prima facie 

case.86  In  essence,  the  finding  in  Feryn  was  based  on  the  employer’s  confession  of  his  racist  intent  and  his  bias 

against a certain racial group (Moroccans). Regarding his speech act – the instance when he publicly stated that 

he would not hire applicants from a certain racial group – the CJEU found that there was no need to identify an 

individual plaintiff who had actually suffered harm by not being hired, nor was there a need to identify an actual 

comparator.87

Under European law, intent is not a constitutive element of either form of discrimination, and the CJEU seems not to 

consider it when dealing with cases of discrimination. However, when it comes to causation, deliberations necessarily 

focus on bias and hence move around intent.

Notably, under European law the burden of proof does not reverse in cases of direct discrimination at the same 

stage as it does for indirect discrimination. This is due to the wording of the definitions. While in the case of direct 

discrimination less favourable treatment must occur ‘on the grounds of’ the protected characteristic, in cases of 

indirect  discrimination  the  particular  disadvantage  ought  to  be  suffered  by  persons  simply  ‘having’  a  protected 

characteristic. This compels plaintiffs alleging direct discrimination to produce facts on the basis of which it may 

be presumed that the conduct leading to the harm they suffered is directly linked to their protected characteristic. 

In other words, in order to tip the balance of probabilities in their favour they need to make a plausible submission 

relating to the bias – the respondent’s conduct being causally linked with their protected ground. The causal link 

may be established in three ways: by facts that show that 1. the protected ground is the only reason leading to the 

conduct; 2. the protected ground is one of many reasons leading to the conduct; or 3. it cannot be ruled out that the 

protected ground is a reason leading to the conduct. In contrast, no such causal link between the conduct and the 

protected ground needs to be established in the case of indirect discrimination.

Two  basic  models  are  adopted  in  national  laws  transposing  the  reversal  of  the  burden  of  proof  provisions  that 

provide  more  detailed  guidance  on  prima  facie  cases.  In  Ireland  prima  facie  evidence  is  evidence  which  in  the 

absence of any credible contradictory evidence by the respondent would lead any reasonable person to conclude 

that discrimination had occurred. The Labour Court has laid down the extent of the evidential burden on a plaintiff 

to establish a prima facie case of discrimination. The plaintiff must ‘establish facts from which it may be presumed 

85  Case C-127/92 Enderby.

86  Case C-54/07 Feryn.

87  During the proceedings before the CJEU, attention was not paid to the second confession, namely that during the period 

between the time when the public statement was made and when the legal proceedings were initiated, Mr Feryn had indeed 

turned down applicants of Moroccan origin.

53

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt v 
that the principle of equal treatment has not been applied to them. This indicates that a plaintiff must prove, on 

the  balance  of  probabilities,  the  primary  facts  on  which  they  rely  in  seeking  to  raise  a  presumption  of  unlawful 

discrimination.  It  is  only  if  these  primary  facts  area  established  to  the  satisfaction  of  the  Court,  and  they  are 

regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts 

to the respondent to prove that there was no infringement of the principle of equal treatment’ (emphasis added).88 

A ‘balance of probabilities’ standard means that the court needs to believe that the plaintiff’s claim is ‘more likely 

than not’ to be true.

There are national laws that regulate when a presumption of discrimination is established in a more lenient manner. 

The  Hungarian  Equal  Treatment  Act  basically  defines  the  presumption  of  discrimination,  which  is  based  on  the 

concept that establishing a protected ground and a disadvantage (harm) in itself creates a strong enough suspicion 

of discrimination for the burden of proof to be shifted. In the Hungarian system the causal link between the protected 

ground and the harm does not need to be substantiated in any way.

V.10.  Justification defence

Justification  means  that  once  a  prima  facie  case  is  made  out,  European  law  provides  limited  opportunities  to 

respondents to prove that their actions or conduct had been legal, despite being less favourable to victims.

Direct discrimination is not always unlawful. It can be lawful when European law permits an exception, but depending 

on the protected ground, the potential exceptions may be different. Under jurisprudence developed by the CJEU, the 

general rule is that direct discrimination based on sex can never be justified. In general, ethnic origin-based direct 

discrimination is the most difficult to justify, while disability and age-based direct discrimination can be more easily 

justified.

European law permits wide ranging general exceptions to indirect discrimination. Indirect discrimination is lawful if 

the provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are 

appropriate and necessary. The general exception asks why a certain provision, criterion or practice was adopted and 

what its aim is. It also asks whether the method, model or solution used in the practice is necessary and appropriate, 

or if the aim could be achieved in any other way. This is for respondents to answer. However, certain justifications 

are not acceptable:

•  Purely budgetary (financial) considerations can never serve as objective justifications.

• 

The aim of the practice must be unrelated to discrimination and mere generalisations are not sufficient.

•  Proportionality requires that the concrete measure taken in order to achieve the legitimate aim should be 

suitable for achieving that aim.

•  Proportionality also requires the respondent to show that another measure with a less detrimental effect or 

even no disparate effect would not be effective.

88  Mitchell v Southern Health Board (2001) Labour Court DEE011.

54

n ReveRsing the buRden of pRoof nTHEMATIC REPORT 
Exceptions to direct discrimination in European law

Type of exception

Genuine and determining occupational requirements

Positive action

Ground

All grounds

All grounds

Employers with an ethos based on religion or belief

Religion or belief

Armed forces and other specific occupations not covered

Disability and age

Family benefits

Health and safety

Exceptions related to age

Sexual orientation

Disability

Age

Public security, public order, criminal offences, protection of 
health, protection of the rights and freedoms of others

Disability, age, sexual orientation, religion or belief

The  Non-discrimination  Directives  specifically  provide  for  positive  action  as  a  justification  for  unequal  treatment. 

Challenges against positive action measures usually come from members of majority groups who feel that they are 

unlawfully discriminated against as a result of action designed to improve the situation of protected groups. This 

has been the case in relation to positive action based on sex. Challenges have been made by men to positive action 

measures designed by some Member States to provide more equal opportunities to women.

The CJEU allows automatic preference on the basis of a protected ground in limited circumstances and only where 

candidates after individual assessment are deemed to have equivalent merit. The effect of CJEU jurisprudence has 

been to limit the scope of positive action in cases concerning sex discrimination.

The CJEU has not so far ruled in cases where positive action programmes for other grounds have been applied. It 

may be that the same approach to the positive action provisions will be taken as under sex equality law, but some 

have also argued that with regard to race and ethnic origin for instance, the CJEU may take a more lenient approach.

With  regard  to  sex  discrimination  the  CJEU  has  established  several  specific  possible  justifications  in  the  area  of 

employment  relations.  It  has  indicated  that  an  employer  may  justify  a  requirement  only  if  it  demonstrates  its 

importance to the performance of specific tasks. It has indicated that mobility could not be used independently as 

an indicator or proxy for quality of work. Difference in pay based on different training could be justified by showing 

its importance for the performance of specific tasks. The CJEU has suggested that pay differentials based on length 

of service required no particular justifications.89 It has allowed another possible justification for differential pay – the 

need of the employer to raise pay to attract candidates because of the state of the job market.90 The CJEU holds that 

European equal pay provisions override freedom of contract – equal pay is protected even if individual and collective 

agreements contract for unequal compensation.91

Many justification defences for discriminatory impact are economic or market-based. However, a distinction must 

be  made  between  economic  excuses  for  direct  discrimination  and  objectively  justifiable  economic  justifications 

accompanying good faith efforts at fair practice. For example, the CJEU has not given weight to arguments regarding 

the higher cost of ensuring equal pay between men and women for governments, national economies, or private 

enterprises.92

89  Case C-109/88 Danfoss.

90  Case C-127/92 Enderby.

91  Case C-43/75 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena.

92  Case C-43/75 Defrenne.

55

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt vIf the burden of proof has been shifted, a simple, unsubstantiated statement of the respondent’s reasons for his 

conduct is not enough. In Ireland, cogent evidence is required to discharge the burden. In Campbell Catering Ltd 

v Aderonke Rasaq the Irish Labour Court indicated that evidence must be substantial and persuasive in order to 

successfully rebut the presumption of discrimination. ‘While the Court is not bound to apply the law of evidence with 

the same strictness as would be found in a court of law, it cannot allow hearsay evidence in rebuttal of testimony 

given on oath’.93

The European Court of Human Rights has held that the right not to be discriminated against on the basis of racial or 

ethnic origin cannot be waived even by parental consent to education in a special school.94

V.11.  Rebuttal

Often,  plaintiffs  need  to  rebut  evidence  produced  by  the  respondent  during  the  justification  defence  in  order  to 

succeed with their legal action. They need to ensure that exceptions are formulated narrowly and that the necessity, 

adequacy and proportionality of criteria and practice in cases of indirect discrimination are strictly examined. By the 

same token, as in any civil procedure, respondents also have the right to refute facts presented by plaintiffs.

In fact, rebuttal and justification may not be distinguished properly during court proceedings. This appears to be the 

case in Feryn and Accept, for instance. In the former, the CJEU said upon finding a prima facie case of discrimination: 

‘It is, thus, for that employer to adduce evidence that it has not breached the principle of equal treatment, which it 

can do, inter alia, by showing that the actual recruitment practice of the undertaking does not correspond to those 

statements’. In fact, such a defence would have amounted to the respondent refuting his own statement in Accept.

V.12.  Procedural scheme

The stages of establishing direct and indirect discrimination while taking into account the reversal of the burden of 

proof and the exceptions provided under European law can be summarised as follows.

Stages of procedure: 
establishing

Definition, 
burden of proof 
and exceptions

Direct discrimination

Indirect discrimination

conduct

harm

person/group suffering it

does person/group have 
protected characteristic?

access to evidence held 
by respondent

person/group not 
suffering it = comparator

does comparator have 
protected characteristic?

x

x

x

x

x

x

treatment

less favourable

yes

yes, a homogeneous group

provision, criterion or practice

particular disadvantage

yes

a greater part of a 
heterogeneous group

homogeneous group

no

a greater part of a 
heterogeneous group

some may, but majority do 
not

93  Equality Tribunal 2004- EED048.

94  D.H. and Others v the Czech Republic, Judgment of 13 November 2007.

56

n ReveRsing the buRden of pRoof nTHEMATIC REPORT 
 
Stages of procedure: 
establishing

Definition, 
burden of proof 
and exceptions

Direct discrimination

Indirect discrimination

prima facie case: 
discrimination is 
presumed

reversal of the burden 
of proof

causation complete

justification defence 

finding: discrimination 
or not

x

x

x

x

x

depends on national law and 
practice – under European law 
causal link between protected 
ground and conduct must seem 
probable

yes

yes

yes

on the grounds of

limited (positive action, genuine 
and determining occupational 
requirement, etc.) except for age

broad: provision, criterion 
or practice is objectively 
justified by a legitimate aim 
and the means of achieving 
that aim are appropriate and 
necessary

The scheme above is based on civil procedural rules followed in actions for damages (torts). It may differ if the 

sanction sought does not include damages, especially in countries where the structure of civil rights claims differ 

from tort claims.

The  golden  rule  is  that  unless  there  is  comparison,  there  is  no  causation,  but  there  are  exceptions  to  this  rule, 

particularly in cases where comparison is not necessary to establish discrimination. This is the case with pregnancy 

and harassment. Comparison is obviously not relevant when intent to discriminate can be established, mainly on 

the basis of respondent’s admission of facts or his/her unequivocal public statement. In these cases, there is in fact 

no need to reverse the burden of proof, because straightforward intent is at hand. However, as the CJEU pointed 

out in both Feryn and Accept, respondents may still seek to prove that they do not in fact discriminate by providing 

evidence of their practice that runs counter to their statements.

The outstanding issue that awaits resolution by the CJEU or further legislation at the EU level is how to ensure the 

plaintiff’s access to information necessary to make a comparison adequate for establishing a prima facie case if the 

respondent is unwilling or – due to confidentiality – unable to provide such information. Future case law needs to 

analyse not only relevant European data protection provisions and national rules on disclosure, but more importantly, 

it needs to clarify whether the personal data of individual(s) not party to the proceedings are at all needed to draw 

a comparison. Should it be established that redacted information is sufficient, data protection concerns may become 

obsolete.

57

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt vEsther | 1994

THEMATIC REPORTn ReveRsing the buRden of pRoof nPart VI 
Implementation in Member States

59

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt vi 
 
 
 
 
 
 
 
 
 
There are general and country-specific aspects to the transposition and the implementation of the burden of proof 

provisions. This chapter sets out to take stock of such trends and patterns.

VI.1.   General trends and patterns

Several Member States opted for a single piece of legislation dealing with anti-discrimination (Croatia, the Czech 

Republic, Finland, the Former Yugoslav Republic of Macedonia, Germany, Lithuania, Netherlands, Poland, Slovakia, 

Sweden  and  the  UK)  and  most  Member  States  have  transposed  the  Non-discrimination  Directives  through  civil 

and labour law – both solutions provide for the reversal of the burden of proof.95 A minority have transposed the 

Directives through criminal law, where liability for discrimination must be established beyond reasonable doubt.

The Racial and Employment Equality Directives have been transposed for more than a decade now in the Member 

States,  and  national  laws  implementing  the  provisions  on  the  burden  of  proof  are  largely  compliant  with  the 

requirements of the Directives. Transposition is reasonably accurate in most cases. However, there are some gaps 

and technical defects in transposition of the burden of proof provisions in the case of some Member States.

In  Austria  the  wording  of  the  Federal  Treatment  Act  lowering  the  burden  of  proof  for  the  plaintiff  is  not  strictly 

in  conformity  with  that  of  the  Directives.  The  Supreme  Court,  however,  has  interpreted  the  law  in  line  with  the 

Directives, by stating that ‘if the establishment of discriminatory infringements is successful, it is for the respondent 

to prove that he or she did not discriminate.’96

In Latvia, judicial interpretation is required regarding the implementation of the Racial Equality Directive in certain 

fields of application such as social protection.97 Therefore, the shift in the burden of proof is not applicable across all 

of the fields and sectors covered by the Directives but is mainly confined to employment, access of self-employed 

persons to goods and services, consumer rights protection, education and health.

Amongst the Candidate States and EEA States, there remain some problems in applying the EU burden of proof 

provisions. In FYROM the Anti-discrimination Act places the burden to a great extent on the plaintiff, as he or she 

must  submit  ‘facts  and  evidence  from  which  the  act  or  action  of  discrimination  can  be  established’,  contrasting 

with the Directives, which merely require the establishment of the facts. In Iceland the rules on the burden of proof 

have been incorporated into national law for gender but not for any other discrimination ground. In Liechtenstein, 

the plaintiff must establish the discrimination claim as ‘credible’, and against allegations of direct discrimination 

respondents must bring forward a ‘crucial’ reason justifying the difference in treatment. The shift in the burden of 

proof in Turkey only applies to a limited extent (in labour law on unfair dismissals, and in larger companies only).

VI.2.   Application of the burden of proof rules in practice

In many jurisdictions it is difficult to obtain an overview of practice. This is because of a general scarcity of case law 

in many countries, which appears to be particularly the case for instance in the Czech Republic, Estonia, Finland, and 

Latvia.

95  For details on national legislation see Isabelle Chopin and Catharina Germaine-Sahl (October 2013) Developing Anti-

discrimination Law in Europe: The 28 EU Member States, the Former Yugoslav Republic of Macedonia, Iceland, Liechtenstein, 

Norway and Turkey compared, particularly the tables in Annex II, pp. 146-152.

96  Supreme Court Decision 9ObA177/07f 09/07/2008.

97 

Isabelle Chopin and Catharina Germaine-Sahl (October 2013). Developing Anti-discrimination Law in Europe: The 28 EU 

Member States, the Former Yugoslav Republic of Macedonia, Iceland, Liechtenstein, Norway and Turkey compared, p. 58. 

60

n ReveRsing the buRden of pRoof nTHEMATIC REPORT 
 
This study will now look in more detail at the implementation of the burden of proof rule in a sample group of nine 

Member States in order to examine how it operates in practice. The countries selected are Bulgaria, Cyprus, Denmark, 

France, Germany, Hungary, Ireland, Spain and Sweden. The countries in question represent a geographic spread and 

a range of systems with diverse history, structure, scale and institutional mandate. They may also manifest some 

distinctive features of national legislation and/or case law.

In Bulgaria, the Protection Against Discrimination Act (PADA) requires the burden of proof to be shifted from the 

plaintiff onto the respondent where the plaintiff has established facts from which a conclusion for discrimination can 

be made. The relevant provision reads:

In proceedings for protection against discrimination, after the party claiming to be a victim of discrimination 

proves facts which may lead to a conclusion that discrimination is present, the respondent must prove that the 

right of equal treatment was not infringed.98

This provision is considered to be confusing because of the use of the word ‘conclusion’. It is thought that judges 

may not fully appreciate that the plaintiff does not need to prove facts that necessarily lead to a conclusion of 

discrimination, but only facts that make such a conclusion possible. A draft law is now pending in Parliament that 

will amend the language of the provision in order to clarify that the plaintiff need only establish facts which make it 

possible to make an inference of discrimination. The draft provision reads:

In proceedings for protection against discrimination, after the party claiming to be a victim of discrimination 

establishes facts based on which it is possible to infer that discrimination is present, the respondent must prove 

that the right of equal treatment was not infringed.

The shift in the burden of proof in Bulgaria is applicable to both judicial proceedings and proceedings before the 

equality body. It is uniformly applicable to all forms of discrimination, including harassment and victimisation.

A remaining problem is that the national law only envisages a shift of the burden of proof in cases brought by a 

direct victim of discrimination – ‘the party claiming to be a victim of discrimination’ – and seemingly not in cases of 

representative actions (actio popularis) where an NGO seeks to establish discrimination against a group of people 

with the same protected characteristic. In at least one actio popularis court case, the judge explicitly refused to apply 

the shifting burden of proof, reasoning that it was only intended to benefit victims of discrimination, and not NGOs 

acting in the public interest. This was on the basis that, according to the judge, such NGOs had greater resources to 

enforce anti-discrimination law than victims of discrimination.

It is not clear whether the shifting burden of proof applies to cases of disability discrimination where the plaintiff 

claims  that  reasonable  accommodation  has  not  been  provided.  A  denial  of  reasonable  accommodation  is  not 

deemed under Bulgarian law to constitute discrimination. Reasonable accommodation is governed by the Protection 

Against Discrimination Act (PADA), and the Act stipulates that the shifting burden of proof applies ‘in proceedings 

for protection against discrimination’. Therefore arguably it should also apply to reasonable accommodation cases. 

However, only future case law will show how judges will construe this.

In 2012, the Supreme Administrative Court handed down one of the first Bulgarian rulings to properly apply the 

principle of the shifting burden of proof to a discrimination case.  The case concerned  sex  discrimination against 

an army employee. The plaintiff claimed that over a number of years she was refused a military rank and ensuing 

promotion, in contrast to similarly situated male colleagues. The Court confirmed the equality body’s ruling in the 

case, that this constituted sex discrimination because the respondent authority had failed to prove that there was a 

98  Protection Against Discrimination Act (PADA) 2003, Art. 9. 

61

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt viAugushine | 1992

THEMATIC REPORTn ReveRsing the buRden of pRoof nlegitimate reason for treating the woman less favourably than her comparators. Therefore, the Court concluded, the 

real reason was her sex. The Court further reasoned that it was immaterial what the woman’s supervisors’ motives 

were, as long as her less favourable treatment on grounds of sex was an objective fact – express recognition by the 

Court of the ‘irrelevance of intent’ standard.

Notwithstanding the correct application of the rule in the above case, it seems that this case may not represent 

the general trend in case law. As the law does not specify any criteria to determine what are ‘facts from which 

discrimination can be presumed’, this is left to judges to decide in particular cases. It is felt that judges and even 

equality body members and staff do not fully understand the rule, and that specialised training is needed to remedy 

this.99

In  Cyprus,  under  anti-discrimination  legislation  the  burden  of  proof  is  reversed  in  all  judicial  proceedings  except 

criminal  cases.  Procedures  before  the  equality  body  are  excluded,  availing  of  the  derogation  provided  in  Article 

8(5)  of  the  Racial  Equality  Directive.100  However  although  the  equality  body  has  the  power  to  carry  out  its  own 

investigation, it may in practice decide not to do so for various reasons including notably lack of resources. There 

have been cases where the equality body did not fulfil its duty to investigate the facts: it did not examine any witness 

nor did it do its own fact finding, yet although there was a prima facie case of discrimination, the burden of proof 

was not reversed and the equality body concluded that that there was not enough evidence to conclude that the 

party accused of discrimination was liable. In a number of complaints over recent years, the equality body found 

that complaints of employment discrimination in public hospitals did not have a sufficient evidence base to lead to a 

decision against the hospital staff.101 The non-application of the burden of proof rule to cases handled by the equality 

body is a significant gap in protection, since most discrimination cases in Cyprus are lodged with the equality body 

and not with the courts.

Another issue under Cypriot law is that the reversal of the burden of proof applies only to discrimination proceedings 

where the particular laws transposing the Anti-discrimination Directives are relied on. In Cyprus, the most regularly 

invoked provision is Article 28 of the Constitution, partly because it is very far reaching (covering all grounds and all 

fields) and partly because it is the provision that most lawyers and judges are familiar with. The courts not only do 

not reverse the burden of proof when applying Article 28 but according to case law Article 28 of the Constitution 

provides protection only from arbitrary discrimination and does not preclude ‘reasonable discrimination’. As a result, 

in the vast majority of cases, the courts conclude that the plaintiff has failed to establish his or her case and the 

claim is dismissed.102 It would be an improvement if the reversal of proof was obligatory in all proceedings where 

discrimination is claimed, irrespective of whether the law invoked in the proceedings was the law transposing the 

Directives or some other law, or indeed the Constitution.

In Denmark, the Act on Ethnic Equal Treatment and the Act on the Prohibition of Discrimination in the Labour Market 

introduced the principle of a shared burden of proof.103 This means that if a person who considers him- or herself 

to be discriminated against is able to establish facts of possible discrimination, then the employer, the shop owner, 

landlord etc. has to prove that no discrimination has taken place. In Denmark the burden of proof is referred to 

99 

Information from the Bulgarian member of the Legal Network of Experts in the Non-discrimination Field.

100  According to which reversal of the burden of proof is not required where the body has the power to carry out its own 

investigations to establish the facts of a case.

101  E.g. Decision of the Anti-discrimination Authority of the Equality Body of 21 September 2012, Ref. ΑΚR  60/2009, ΑΚR 

110/2009, ΑΚΡ 32/2011, where the court found that the applicant failed to prove that there was no difference between the 

different police ranks so as to render the different retirement ages discriminatory.

102  E.g. Supreme Court Decision of 30 April 2012 in the case of George Mattheou v The Republic of Cyprus through the Chief of 

Police and the Minister of Justice and Public Order, Ref. 1497/2008.

103  The Act on Ethnic Equal Treatment Section 7 and the Act on the Prohibition of Discrimination in the Labour Market etc., 

Consolidated Act No 1349 2008 Section 7 a.

63

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt vias  shared  rather  than  shifted,  but  although  terminologically  different  the  provision  is  considered  in  line  with  the 

Directives. To prove discrimination according to the rule on the shared burden of proof in Danish legislation, there 

must be three main elements established: 1. the existence of facts; 2. the facts create a presumption that differential 

treatment has taken place; 3. the discriminator cannot prove that discrimination did not take place.

The shared burden of proof applies in cases of direct and indirect discrimination, harassment and instructions to 

discriminate, but not in cases regarding victimisation.

A judgment from the Supreme Court of 7 December 2011 illustrates the use of a shared burden of proof.104 The 

case dealt with a woman of 55 years of age who had applied for a position in the public office of passports and 

drivers’ licences. She was rejected for the position and received a letter from the manager of the public office stating 

inter alia the following: ‘… as a manager I’m obliged to respond to the generational change that will come up in the 

coming years in the current group of … primarily elderly experienced employees.’ The Supreme Court stated that this 

remark established facts from which it could be assumed that the age of the plaintiff was part of the reasoning for 

her not being hired. However, the public office could prove to the satisfaction of the Supreme Court that the rejection 

of the plaintiff was not because of her age, but because she did not possess the requested personal qualifications. 

The Supreme Court considered that the public office had not violated the Act on Prohibition of Discrimination in the 

Labour Market.

In many cases that arise both before the civil courts and the Board of Equal Treatment, the reasoning leading to 

a conclusion that discrimination did not take place is not clear. Was the reason for concluding non-violation that 

an employee did not establish facts creating a presumption for differential treatment (1 and 2) or was the reason 

that the employer proved that discrimination did not take place (3)? In individual cases it is often not clear whether 

the three elements of the shared burden of proof rule have been reviewed by the courts and the Board of Equal 

Treatment. It is felt that there is need for clarification of the three elements of the shared burden of proof rule. 

In France the shift in the burden of proof provisions have been transposed by Article 4 of Law No 2008-496 (2001) 

and Article 158 of the Law of 17 January 2002 in matters of housing (modifying Article 1 para. 3 of Law 89-462 

of 6 July 1989). It operates in two steps. First, the plaintiff must present facts leading to a presumption of direct 

or  indirect  discrimination.  The  judge  may  order  any  enquiry  he/she  considers  useful.  In  the  former  French  law, 

the plaintiff had a lesser burden and was only required to present facts, i.e. that the plaintiff was covered by the 

protected ground and the adverse treatment occurred. Plaintiffs at that time were not required to establish a causal 

link.

If the plaintiff’s burden of proof is satisfied, during the second step the respondent must establish that his or her 

decision was justified by objective factors having nothing to do with discrimination. However, it may be noted that 

French law does not require the respondent to establish proportionality and necessity as is required under EU law in 

indirect discrimination cases.

The shift in the burden of proof applies in all non-criminal legal actions covering private and public sector employees, 

self-employed  workers,  access  to  goods  and  services  in  the  private  and  public  sector,  and  claims  against  state 

services.

For claims relating to the public sector that are brought before the administrative court, the administrative procedure 

is inquisitorial and is therefore covered by the derogation provided in Article 8(5) of the Racial Equality Directive and 

Article 10(5) of the Employment Equality Directive. Article R411-1 of the Code of Administrative Justice provides 

that ‘[the statement of claim] must set out the facts, grounds and conclusions and order requested from the judge’. 

104  Weekly Law Journal U.2012.890 H.

64

n ReveRsing the buRden of pRoof nTHEMATIC REPORTThe plaintiff is deemed not to have the burden of proof. However, in a plenary decision of 30 October 2009, the 

Administrative Supreme Court spelled out indications to lower administrative courts as regards implementation of 

the burden of proof in discrimination cases:

It is up to the plaintiff to submit to the judge facts that could lead to a presumption of a violation of the principle 

of non-discrimination, while the respondent must submit all evidence establishing that the impugned decision 

is based on objective factors that are devoid of discrimination. The decision of the judge … is based on this 

adversarial exchange. In case of doubt, the judge must complete these adversarial exchanges by ordering any 

investigatory measure that he or she deems necessary.105

The shift in the burden of proof applicable in inquisitorial proceedings is therefore in fact very close to that of the 

provisions in the Directives.

In Germany Article 22 of the General Law on Equal Treatment (Allgemeines Gleichbe-handlungsgesetz, AGG 2006) 

regulates the burden of proof. According to this provision, the plaintiff has to provide circumstantial evidence that 

makes it reasonable to assume unequal treatment on one of the grounds covered by the AGG. The respondent then 

assumes the burden of proving that no violation of the regulations protecting against discrimination has occurred.

There is some debate as to how the clause is to be interpreted. There is general agreement that three elements need 

to be established, namely 1. the unequal treatment; 2. causality with the characteristic; and 3. the objective reasons 

or justification that may be given for the unequal treatment.

Generally,  it  is  assumed  that  the  plaintiff  has  to  fully  prove  the  unequal  treatment,  then  has  to  prove  causality 

between  the  characteristic  and  the  unequal  treatment  on  the  balance  of  probabilities.  If  this  is  achieved,  the 

respondent has to fully prove the existence of objective or justifying reasons for the treatment. Some argue that 

this interpretation is too narrow and propose that prima facie evidence suffices not only for the causality of the 

characteristic but for the unequal treatment as well. A more precise formulation of the rules on the burden of proof 

would be helpful to clarify this question.

In public law proceedings, for instance concerning social benefits and education, all proceedings are inquisitorial, so 

that the burden of proof rules need not apply. The same applies to civil service cases under Articles 24 AGG and 22 

AGG. Here, too, however, the rules are such that a preponderant probability of causality between the characteristic 

and  unequal  treatment  is  enough,  whereas  the  unequal  treatment  and  the  existence  of  objective  reasons  or 

justification have to be proved to the full satisfaction of the court.

In  Hungary,  Article  19  of  the  Act  CXXXV  of  2003  on  Equal  Treatment  and  the  Promotion  of  Equal  Opportunities 

(ETA) provides for the shift of the burden of proof. The test for the shift of the burden of proof only requires that the 

allegedly injured party substantiates, rather than proves, his/her claims.

Substantiation  involves  a  lower  level  of  certainty:  if  the  injured  party  establishes  facts  from  which  it  may  be 

presumed that a disadvantage was suffered and that the party possesses a protected feature (or that the other 

party must have assumed so), then the burden of proof is shifted. The provision reads as follows:

(1)  

the plaintiff or party entitled to launch an actio popularis claim must render it probable that;

a)   the plaintiff or group has suffered a disadvantage, or – in the case of actio popularis claims – there is 

a direct danger thereof; and

b)   the plaintiff or group possesses – or is assumed to possess – characteristics listed in Article 8.

105  Administrative Supreme Court decision No 298348 of 30 October 2009.

65

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt vi(2)  

If the case described in paragraph (1) has been substantiated, the respondent must prove that:

a)   the circumstances substantiated by the plaintiff or party entitled to launch an actio popularis claim do 

not prevail; or

b)   the  respondent  has  observed  or  was  not  in  the  particular  circumstances  obliged  to  observe  the 

requirement of equal treatment.

This provision is more advantageous for the victim than the wording of the Directives because in the Hungarian 

system the causal link between the protected ground and the disadvantage does not need to be established: it is for 

the respondent to prove that there is no such a link.

On 13 January 2006, the Equal Treatment Advisory Board issued guidelines (revised in March 2008) on the shift of 

the burden of proof, setting out in clear terms that it is not the plaintiff’s obligation to prove that there was a causal 

link between the protected ground and the disadvantage: the burden of establishing that there was no such causal 

link falls on the alleged discriminator.

The shift is applicable on all grounds of discrimination, in all fields and in all types of procedures, except for criminal 

and petty offence proceedings. In cases involving ethnic origin, including assumed ethnic origin, Article 19 of the ETA 

addresses data protection concerns.

After certain misinterpretations and difficulties in the beginning, judicial practice seemed to accept the shifted burden 

of proof – judgments of higher courts provided positive examples of applying the difficult concept. However, as late 

as 2010 (i.e. five years after the coming into force of the ETA), there was a Supreme Court decision that gave rise to 

concerns as to the consistency of its application.

In the case, which concerned gender, the plaintiff worked on the basis of an indefinite term contract as a financial 

director  for  the  respondent  company  until  2004,  when  she  went  on  maternity  leave.106  In  2007  she  wished  to 

return, but her former position had been terminated by that time, and her former tasks were performed by a person 

employed for an indefinite term. The employer offered a lower level position to the plaintiff for a salary 15% less 

than the previous one. The plaintiff turned to the Equal Treatment Authority claiming that she had been discriminated 

against on the basis of her maternity. In its decision of 7 August 2008, the Authority established discrimination 

based on maternity and the ground ‘other characteristic’. The employer requested judicial review by the Metropolitan 

Court, but the court upheld the Authority’s decision on the basis that the new position offered by the employer was 

significantly different from the previous position which had been filled by a person employed for an indefinite term. 

The employer applied to the Supreme Court for review of the Metropolitan Court’s decision.

In its decision dated 6 October 2010, the Supreme Court quashed the decision of the Authority and the Metropolitan 

Court on the basis that the Authority had failed to identify and set out in its decision the evidence proving that there 

was a causal link between the plaintiff’s maternity and the disadvantage she had suffered.107 Referring to Article 4 of 

Directive 97/80/EC, the Supreme Court claimed that plaintiffs are obliged to present evidence that make it at least 

likely that they have suffered a disadvantage because they belong to a certain group. Since the plaintiff in this case 

did not come up with such evidence and the Authority did not look into the issue, its decision was declared null and 

void, and the complaint rejected as unsubstantiated.

The Supreme Court’s decision disregarded the fact that the Hungarian regulation on the shifting of the burden of 

proof differs from that of the Directives in a way that is more advantageous for the plaintiffs. As outlined above, the 

plaintiff only needs to substantiate the disadvantage and the protected ground. If that is done, a causal link between 

106  Decision No Kfv.II.37.053/2010/8 of the Supreme Court.

107  Decision No Kfv.II.37.053/2010/8 of the Supreme Court.

66

n ReveRsing the buRden of pRoof nTHEMATIC REPORTthe two is to be presumed, and it is up to the respondent to prove the lack of link. When the Authority did not require 

the plaintiff to provide evidence for the link, it proceeded in full accordance with the ETA.

It is a matter of concern that the Supreme Court based its decision on the Burden of Proof Directive instead of the 

Hungarian laws which provide a higher level of protection to plaintiffs. Its interpretation also seems to run counter 

to what the CJEU said in a recent decision, where it accepted that Member States can determine what procedural 

rules  apply  in  discrimination  cases,  as  long  as  they  comply  with  the  ‘principle  of  equivalence’,  the  ‘principle  of 

effectiveness’ and the ‘principle of non-regression’.108

In Ireland, the rules on the burden proof have been enshrined in section 85A(1) of the Employment Equality Acts, 

and extended to the Equal Status Acts through the inclusion of a similar provision in section 38A(1). The section 

provides that:

where, in any proceedings, facts are established by or on behalf of a complainant from which it may be presumed 

that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

The burden of proof shift applies to all proceedings including those arising from discrimination cases referred by 

the Equality Authority, and includes harassment and victimisation, but excludes proceedings relating to a criminal 

offence.

The statutory text and the Irish case law which has developed in this area both make it clear that the application of 

the test requires the assessment of a number of distinct elements in discrimination cases. In order to succeed, the 

plaintiff must be able to bring forward evidence establishing a link between the adverse treatment which he or she 

has suffered and the discriminatory ground being invoked. If the plaintiff succeeds in doing so, the burden of proof 

passes to the respondent to show that the treatment in question was not discriminatory. In determining whether 

the plaintiff has established a prima facie case of discrimination, the Equality Tribunal has commonly employed a 

three-stage test:

• 

First, the plaintiff must establish that he or she is covered by the relevant discriminatory ground.

•  Second, he or she must establish that the specific treatment alleged has actually occurred.

• 

Third, it must be shown that the treatment was less favourable than the treatment which was or would have 

been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

While satisfying the first two stages of the test tends not to be problematic, this is not enough in itself to shift the 

burden of proof. It is generally the third stage which poses most difficulty for plaintiffs by requiring them to make 

the connection between the adverse treatment they complain of and the discriminatory ground which they invoke.

In Mitchell v Southern Health Board,109 the Labour Court pointed out that the plaintiff must not only establish the 

primary facts upon which he or she relies but must also satisfy the Court that they are of sufficient significance 

to  raise  an  inference  of  discrimination.  The  Labour  Court  also  noted  that  the  ‘type  or  range  of  facts  which  may 

be  relied  upon  by  a  complainant  can  vary  significantly  from  case  to  case’.  Where  the  primary  facts  alleged  are 

proved, it remains for the Labour Court or Equality Tribunal to ‘decide if the inference or presumption contended 

for can properly be drawn from those facts’. This entails a consideration of the range of conclusions which may 

appropriately  be  drawn  to  explain  a  particular  fact  or  a  set  of  facts  which  are  proved  in  evidence.  At  the  initial 

stage the plaintiff is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the 

conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved 

108  Case C-246/09 Bulicke [2010] E.C.R. I-7003.

109  Mitchell v Southern Health Board [2001] ELR 201.

67

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt vin REVERSInG  THE  BURDEn Of PROOf  n

Max | 2013

TH E M AT IC REPORT

facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from 

those facts. The Labour Court referred to the English Madarassy decision,110 noting that there was nothing to prevent 

the Court or Tribunal at the stage of considering whether there was a prima facie case from hearing, accepting or 

drawing inferences from the evidence adduced by the respondent which sought to dispute or rebut the plaintiff’s 

evidence of discrimination.

The English Madarassy case and Irish case law following its approach show that while the distinct stages of the 

burden of proof shift are well recognised in theory, in practice decision-makers frequently consider both elements 

together. This effectively places the burden on the applicant to prove the case in total rather than simply prima 

facie. It has been acknowledged that it would be preferable for the different stages in the analysis to be individually 

identified and analysed.111 However, it sometimes also happens that the plaintiff’s case in the Equality Tribunal is 

strengthened by facts coming to light in the respondent’s evidence.

Finally, whereas the situation may be considered satisfactory in the Equality Tribunal, in the cases which come to 

the civil courts it is clear that there is a need for a great deal more awareness of the burden of proof rule notably 

amongst judges. In a High Court case on Traveller discrimination in schools admissions, not only was the burden 

of proof rule ignored entirely as a concept but the judge displayed a basic lack of understanding of the difference 

between direct and indirect discrimination and the strictly delineated limits to objective justification in EU law.112

In Spain, Law 62/2003 which transposes the Directives introduces a shift of the burden of proof into the Spanish 

legal system, although this was already present in the employment litigation procedure for discrimination based on 

sex and for infringement of the freedom to join a union. For civil, administrative and labour litigation procedures, the 

law provides that if well-founded evidence of discrimination on the grounds of racial or ethnic origin and religion or 

belief, disability, age or sexual orientation (in employment) may be inferred from the allegations of the plaintiff, it 

is for the respondent to bring forward a reasonable and objective justification, sufficiently proven, of the measures 

adopted and their proportionality.

Article 36 of Law 62/2003, which deals with discrimination in employment on all grounds of the Directives, provides 

that:

In those civil and administrative proceedings in which from the facts alleged by the plaintiff one may conclude 

the existence of well-founded evidence of discrimination on the grounds of racial or ethnic origin, religion or 

belief, disability, age or sexual orientation with respect to matters falling within the scope of this section, it shall 

be for the respondent to give an objective and reasonable and sufficiently proven justification of the measures 

adopted and their proportionality.

The  text  of  Article  32  is  similar,  but  pertains  only  to  the  grounds  of  racial  or  ethnic  origin  in  fields  other  than 

employment.

The Law on the Employment Litigation Procedure (Article 96) also established a shift of the burden of proof, and 

after the reform introduced by Law 62/2003 (Article 40), it now mentions not only discrimination on the ground of 

sex but also on all the grounds of the Directives. Article 96 states:

In those proceedings in which the existence of well-founded indications of discrimination for reason of sex, racial 

or ethnic origin, religion or belief, disability, age or sexual orientation may be inferred from allegations on the 

110  Madarassy v Nomura International Plc [2007] IRLR 246. 

111  Fennelly, D. (2012). Selected issues in Irish Equality Case Law 2008 – 2011. Dublin: Equality Authority, p 41.

112  Stokes v Christian Brothers High School Clonmel, High Court 3.2.12, unreported. 

69

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpart of the plaintiff, it shall rest with the respondent to provide sufficient proof of the objective and reasonable 

justification of the measures taken and of their proportional nature.

Article 77 of the General Law on the Rights of Persons with Disabilities and Social Inclusion (RDL 1/2013) establishes 

a shift of the burden of proof when there is evidence of discrimination based on disability.

The Constitutional Court has established case law on the burden of proof. In order for a shift in the burden of proof 

to occur, it is necessary that the plaintiff to prove:

the existence of an indication that generates a reasonable suspicion, appearance or presumption in favour of 

such an affirmation; it is necessary on the part of the plaintiff to produce ‘realistic proof’.113

In another judgment, the Court indicated the

…requirement for a principle of burden of proof revealing the existence of a general discriminatory situation or 

of facts that lead to a strong suspicion of discrimination….114

In a judgment of 2008, the High Court of Justice of Galicia supported the reversal of the burden of proof as there 

were signs justifying a ‘reasonable suspicion’ that fundamental rights had been infringed, such as the employee’s 

right not to be discriminated against for reasons of sexual orientation (as she had married another woman) and 

ideological freedom (as the employee had worked for a left-wing party that is often highly critical of some of the 

views taken by the Catholic Church).115

In Sweden, a shift of the burden of proof is required in Chapter 6, Article 3 of the Discrimination Act. ‘If a person… 

demonstrates reason to presume that he or she has been discriminated against… the respondent is required to show 

that discrimination or reprisals have not occurred.’

The victim of discrimination must be able to present facts that make it possible to presume that discrimination has 

occurred (a similar situation and disfavourable treatment). Thereafter the burden of proof is shifted to the other 

party,  who  must  show  that  one  of  the  requirements  is  not  fulfilled  or  that  the  disfavourable  treatment  was  not 

associated with the ground in question. No intent to discriminate is required.

Very few cases on alleged discrimination have been won. In most cases this is due to the plaintiff’s failure to prove 

a prima facie case of discrimination in the Labour Court, whereas it seems to be less difficult to prove a prima facie 

case in the ordinary court system. A preliminary study for the Ministry of Integration and Equality on judgments 

in discrimination cases between 1999 and 2009 showed that the success rate for discrimination cases in the civil 

courts is 70.8%, but in the Labour Court only 19.5%. For race and ethnicity discrimination cases in the Labour Court 

the success rate drops to 4.3%.116

A difference in the approach of the civil courts and that of the Labour Court to applying the burden of proof has 

been identified as a possible reason for the difference in outcomes.117 The Supreme Court interprets a less favourable 

treatment  in  a  similar  situation  as  the  fact  that  makes  the  presumption  apply.  Thus  a  lower  level  of  proof  may 

113  Sentencia Tribunal Constitucional (Constitutional Court Decision), 22 October 2001, 207/2001.

114  Sentencia Tribunal Constitucional (Constitutional Court Decision), 18 December 2000, 308/2000.

115  High Court of Justice of Galicia, Decision 3041/2008.

116  Sandesjö (2010). Domar i diskrimineringsmål 1999-2009. Jurcom AB, p.11. 

117  Fransson and Stüber. The Discrimination Act Commented. Chapter 6, Section 3. Compare Sandesjö 2010, p. 14. The success 

rate in cases where the rule on the burden of proof has been decisive in the general court system is 90% against 19% in the 

Labour Court.  

70

n ReveRsing the buRden of pRoof nTHEMATIC REPORTapply once the plaintiff presents a similar situation and less favourable treatment. The Labour Court applies the 

presumption more narrowly, as there the plaintiff must always prove the similar situation and the less favourable 

treatment according to normal standards of proof. The presumption applies only to the causal link between these 

two facts and the discrimination ground.

The Labour Court seems to apply the rules on shared burden of proof restrictively, especially with regard to ethnicity. 

The difference between the civil courts and the Labour Court is to be analysed in a forthcoming government white 

paper and this investigation may produce a proposal for modifying the legal rule.118

It is clear from the above overview of the situation in the selected group of Member States that there is a considerable 

variation  in  how  the  issue  of  the  burden  of  proof  is  handled  amongst  the  different  jurisdictions.  Some  general 

problems arise in the implementation of the burden of proof rule not just in the selected Member States but in the 

States as a whole.119

118  Committee Directive 2014 no. 10, p. 6.

119  Based on information received from the European Network of Legal Experts in the Non-discrimination Field.

71

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt viHelene | 1994

THEMATIC REPORTn ReveRsing the buRden of pRoof nPart VII 
Practical concerns relating  
to the burden of proof rules

73

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt vii 
 
 
 
 
 
 
 
 
The country experts have identified concerns relating to the application of the burden of proof provisions that appear 

to be general and present across various Member States. Concerns relate to the access to information and the proper 

application of the burden of proof during the various stages of the proceedings.

VII.1.  Right to information

Gathering evidence may be difficult for the plaintiff. Various methods may be used, including presenting statistical 

evidence  where  available,  or  using  situation  testing  where  this  is  allowed.  Other  methods  have  also  been  tried, 

including  making  voice  recordings  of  an  employment  interview  for  instance.  However,  in  many  jurisdictions 

surreptitious voice recording or taking pictures/filming is not allowed, and may even be a punishable offence.

VII.2.  Establishing a comparator

In most cases the law in Member States and other countries reviewed requires that a similar situation and less 

favourable treatment be established in order to establish a prima facie case. This is especially important in cases 

of direct discrimination. When it is not possible to identify an actual individual in relevant circumstances, courts use 

hypothetical comparators. There are common aspects to demonstrating less favourable treatment:

•  a requirement for a comparison with another person in a similar situation but with different characteristics 

(e.g. ethnic origin, religion, sexual orientation);

• 

the possibility to use a comparator from the past (e.g. a previous employee) or a hypothetical comparator.

These aspects can be generally found in legislation in Austria, Belgium, Bulgaria, Croatia, Cyprus, Denmark, Estonia, 

Finland,  the  FYR  of  Macedonia,  Germany,  Greece,  Italy,  Latvia,

Lithuania,  Luxembourg,  Malta,  the  Netherlands,

Norway, Portugal, Slovakia, Slovenia, Sweden and the United Kingdom.

However,  in  some  states  the  legal  situation  may  not  be  fully  satisfactory.  In  France,  hypothetical  comparison  is 

not explicitly covered by national legislation, which may cast doubt on the compliance of national legislation with 

the Directives.120 In Ireland, there is no provision for a hypothetical comparator in equal pay cases. In Poland, the 

definition of direct discrimination given in the Labour Code is erroneous with regard to the comparator. In Spain the 

law only refers to ‘a comparable situation’, without determining  whether  past  and  hypothetical  comparators  are 

covered.

VII.3.  The prima facie case

In  many  of  the  countries  studied,  the  problem  is  not  so  much  with  how  the  European  provisions  on  the  burden 

of proof have been transposed in law, as with the lack of appropriate or consistent implementation in the court 

proceedings. The widespread view is that there is imperfect understanding of how the rule applies in relation to 

establishing prima facie cases. This appears to be the case amongst judges, the legal profession and in some cases 

even equality body members and staff.

120  French law refers to direct discrimination where a person is treated less favourably than another is, has been or will be 

treated, rather than ‘would be’ as required by the Directives. However, the French Supreme Court has held that ‘the existence 

of discrimination does not necessarily imply a comparison with other workers’ (Cour de cassation, Soc. 10 November 2009, 

No 07-42849, Bulletin). 

74

n ReveRsing the buRden of pRoof nTHEMATIC REPORT 
 
 
 
 
A variety of formulas for establishing a prima facie case are found in discrimination laws in the different states. 

According to the various legislative provisions, the plaintiff will be required to:

• 

establish or substantiate facts – Austria, Bulgaria, Denmark, Greece, Ireland, Italy, Lithuania, Luxembourg, 

Malta, Netherlands, Portugal

introduce facts from which discrimination can be inferred – Cyprus

indicate facts – Poland

state facts – Czech Republic, Estonia, Finland

present facts – Romania

communicate facts – Slovakia121

show that there is reason to believe that discrimination has occurred – Norway

• 

• 

• 

• 

• 

• 

•  allege facts – Spain

• 

• 

demonstrate reasons to presume – Sweden

if there are facts  – UK

After the stage of introducing the facts, further variety occurs in the next steps. In the Hungarian legislation, once 

the plaintiff has presented facts showing he/she is covered (or assumed to be) by the protected ground, and that 

disadvantage occurred, the causal link between the two does not need to be proved in order for the burden to be 

passed to the respondent. The former French legislation was similar, but the current legislation requires a causal link 

to be established. In Germany and Poland the facts showing the protected characteristic need to be proved to the 

satisfaction of the court, following which the unequal treatment need to be fully proved. In most states, a causal link 

has to be proved on the balance of probabilities before the burden of proof shifts to the respondents.

In Germany, Poland and Portugal, where the protected characteristic or ground of discrimination at issue has also to 

be proved, this has been identified as a potential obstacle which can be unduly difficult for the plaintiff to overcome, 

especially when the cause of the discrimination is not obvious, for instance when it does not neatly fit under gender, 

age, disability, race or ethnic origin.122

What seems clear in relation to prima facie cases is that if the standard for establishing the prima facie case is too 

high in relation to any of its elements, the purpose of the Directives in alleviating the burden on the plaintiff will be 

defeated.

In Greece, although transposed into anti-discrimination legislation, the burden of proof provisions have not been 

incorporated into the Code of Civil Procedure and the Code of Administrative Procedure. They are not applied in 

practice due to lack of awareness.

121  But in practice the Slovak Constitutional Court has adopted a much more restrictive attitude, according to which the plaintiff 

‘must … bear the burden of proof concerning the facts’ and ‘must allege, and at the same time submit evidence from which 

it can be reasonably concluded that the principle of equal treatment has been breached.’ Constitutional Court No IV. ÚS 

16/09 of 30 April 2009, available at: www.concourt.sk/rozhod.do?urlpage=dokument&id_spisu=300198 (last accessed 22 

March 2014).

122  Gonera, K. (2011). Rozkład ciężaru dowodu w sprawach o dyskryminację w zatrudnieniu w świetle orzecznictwa Sądu 

Najwyższego, [Shift of the burden of proof in discrimination cases in the light of the Supreme Court jurisprudence]. Also 

Coelho Moreira, T. (2013). Igualdade e Não Discriminação – Estudos de direito do trabalho’ [Equality and Non-discrimination 

– Studies on labour law] p 118.

75

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt viiVII.4.  Potentially different standards according to the protected ground

There are some indications that in practice the shift may operate differently according to the nature of the case and in 

particular the ground of discrimination that is being invoked. For instance, it may be that the requirement of a prima 

facie case of discrimination is more readily satisfied in the case of gender discrimination, at least in circumstances 

where a pregnant employee is dismissed or otherwise unfavourably treated in the context of her employment. This 

appears to be the case in Ireland, where the relatively high success rates of complaints of discrimination relating to 

pregnancy has been noted.123 It may be due to the clarity with which the CJEU has proclaimed pregnancy as a ground 

of direct discrimination as well as the specific characteristics of pregnancy discrimination, which often permit a link 

to be drawn between the ground of discrimination and the less favourable treatment with relative ease. Whether it 

is true to say that the burden is more readily shifted in gender cases in general is more open to question.

However,  at  least  in  Denmark  and  Sweden,  fewer  cases  succeed  on  the  race  and  ethnic  origin  ground.  Further 

studies are needed to clarify whether this is due to a higher threshold for establishing the facts in racial and ethnic 

discrimination cases than in cases of other protected grounds or the higher threshold used by the particular forum 

– the Labour Court in Sweden and the Board of Equal Treatment in Denmark – where the majority of such cases 

commence. In Denmark, only four out of 26 complaints on grounds of race succeeded in 2013.124 A study carried out 

for the Swedish Ministry of Integration and Equality on judgments in discrimination cases found that the success 

rate for ethnic discrimination cases is only 4.3%.125 In Sweden the Labour Court appears to interpret the rules on the 

shared burden of proof more restrictively than civil courts. However, there is a difference between the success rate 

of cases relating to gender and ethnic origin-based discrimination.126

VII.5.  Justification and rebuttal

The  Directives  do  not  provide  concrete  standards  of  proof  by  which  the  respondent  can  successfully  rebut  the 

presumption of discrimination. They use a general formula, according to which ‘it shall be for the respondent to 

prove that there has been no breach of the principle of equal treatment.’ While the CJEU has clarified the standards 

of justification in gender cases, and made inroads into shaping the justification of age discrimination, it has not had 

the opportunity to deal with the other grounds to the same degree of detail. Moreover, the purpose of European 

legislation varies across the protected grounds, which may also play a role in shaping justification defences.

According  to  the  diverse  legislative  formulations  used  by  the  different  Member  States,  in  order  to  rebut  the 

presumption the respondent will be required to:

• 

prove that no breach has occurred – Austria, Bulgaria, Croatia, Cyprus, Denmark, Estonia, Greece, Ireland, 

Lithuania, Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Turkey

• 

• 

• 

• 

demonstrate that the prohibition has not been violated – Finland

establish that his/her decision was justified by objective factors which have nothing to do with discrimination 

– France

prove the existence of objective or justifying reasons for the treatment – Germany

prove that the circumstances substantiated do not prevail, or that the respondent has observed, or was not 

obliged to observe, the requirement of equal treatment – Hungary

123  Banks and Russell (2011). Pregnancy Discrimination in the Workplace: Legal Framework and Review of Legal Decisions 1999 

to 2008. HSE Crisis Pregnancy Programme / Equality Authority, p 28, and Fennelly, D. (2012). Selected issues in Irish Equality 

Case Law 2008 – 2011. Dublin: Equality Authority, p 41.

124 

Information supplied by the Danish member of the European Network of Legal Experts in the Non-discrimination Field.

125  Sandesjö, H. (2010). Domar i diskriminieringsmål 1999 -2009. Jurcom AB, p.11.

126 

Ibid., p.7.

76

n ReveRsing the buRden of pRoof nTHEMATIC REPORT 
 
• 

prove no breach or that treatment was justified or action was based on acceptable grounds related to the 

nature of the work or to previous work performance and experience – Malta

substantiate that discrimination did not in fact occur – Norway

bring forward an objective and reasonable justification of the measures taken and of their proportionate 

nature – Spain

show that discrimination or reprisals have not occurred – Sweden

show that the legislative provision in question was not contravened – UK

• 

• 

• 

• 

In  Slovakia  the  Constitutional  Court  found  in  a  case  that  there  was  no  discrimination  because  ‘the  respondent 

proved that it is more likely that the discrimination has not taken place than it is likely that the discrimination has 

taken  place’127  and  so  successfully  rebutted  the  presumption  of  discrimination.  The  Slovak  court  seems  to  imply 

that once the burden of proof is shifted, in order to rebut the presumption the respondent is not obliged to prove 

that there has been no breach of the principle of equal treatment but rather that it is sufficient to provide evidence 

establishing  some  probability  of  non-discrimination,  provided  that  the  probability  of  non-discrimination  is  higher 

than the probability of discrimination. Such an interpretation seems to be in breach of European law.128

The applicable standard of proof for rebuttal is not known for all states but seems to be too lenient in a few, such 

as Austria, Liechtenstein, Norway and Slovakia

In Germany it is generally accepted that the respondent must fully prove the rebuttal. In Spain the standard of proof 

for rebuttal is such that the respondent must present ‘a reasonable and objective justification, sufficiently proven, 

of  the  measures  adopted  and  their  proportionality.’  This  is  close  to  the  test  for  justified  indirect  discrimination 

under the Racial and Employment Equality Directives, with the exception of the additional concept of necessity. The 

French rebuttal standard is similar but less detailed (‘justified by objective factors which have nothing to do with 

discrimination’).

In other States the requirements and standard of proof for rebuttal seems to comply with the justification defence 

envisaged  for  direct  and  indirect  discrimination  in  the  Racial  and  Employment  Equality  Directives  (‘objectively 

justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’).

It is clear, however, that whatever the test adopted with regard to standards of proof, some additional common 

issues arise which may affect the prospects for a successful outcome in a discrimination claim.

VII.6.  Different outcomes according to the legal forum used

As a general rule when complaints are made to specialised national equality tribunals the outcome tends to be better 

for the plaintiff. It could be expected that the existence of the reversed burden of proof is better understood and 

more satisfactorily applied in these specialised fora than in ordinary civil or labour courts. In Poland however, most 

discrimination claims are not taken under the Equal Treatment Act because that act limits possible compensation 

to material damage only. If immaterial damages are sought, the case must be taken under general civil procedural 

rules, with no shift of the burden of proof.

127  Decision No II. ÚS 383/2013-16 of 10 July 2013. The decision is available at http://portal.concourt.sk/pages/viewpage.

action?pageId=1277961. 

128  As pointed out in Milieu Ltd (2011). Comparative study on access to justice in gender equality and anti-discrimination law, p 

23.

77

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt vi 
In some states, the shift in the burden of proof is not applied to the equality bodies because their proceedings are 

inquisitorial, thus they are not obliged to apply the reversal of the burden of proof provisions. This may impact on 

the outcomes of their proceedings. In Cyprus, for instance, the equality body is specifically excluded, the burden of 

proof is not reversed in cases handled by it, and a significant number of cases fail for lack of evidence. Some states 

avail themselves of the derogation for inquisitorial proceedings as regards equality bodies, but apply in practice an 

analogous shift in the burden of proof to the procedures of such bodies. Most states also avail themselves of the 

derogation available in the EU Non-discrimination Directives for administrative proceedings.

VII.7.  Different outcomes according to whether the litigant is an 
individual or an NGO

NGOs with a legitimate interest may engage in proceedings provided for the enforcement of obligations under the 

Directives.129 It seems logical that this should imply that the burden of proof shift should also apply in the case of 

proceedings taken by NGOs, where they are representing a plaintiff. However, in Bulgaria the legislation only applies 

the shift in cases brought by a direct victim of discrimination, and in at least one case the judge refused to apply the 

reversal of the burden of proof because the case was brought by an NGO.

129  Directive 2000/43 (Race) Art.7; Directive 2000/78 (Employment) Art 9; Directive 2006/54 (Gender Recast) Art.17.

78

n ReveRsing the buRden of pRoof nTHEMATIC REPORT 
79

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt viin REVERSInG  THE  BURDEn Of PROOf  n

Evi | 2013

THEMATIC REPORTPart VIII 
Possible improvements to the implementation 
of the burden of proof provisions

81

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt viii 
 
 
 
 
 
 
 
 
The country experts of the European Network of Legal Experts in the Non-discrimination Field covering the grounds 

of racial or ethnic origin, religion or belief, disability, age and sexual orientation were asked whether the burden of 

proof rule could be improved in its implementation or operation in their state so as to produce better outcomes. 

A variety of views were expressed and experts called for training of practitioners, as well as more guidance and 

a  compendium  of  good  practices.  More  in  depth  research  into  the  differences  in  outcomes  across  the  protected 

grounds would also be useful. Various experts expressed concern relating to the access of plaintiffs to information 

held by respondents, particularly in cases where such information may be confidential. Recommendations envisaged 

guidance  and  possibly  the  adoption  of  additional  legal  provisions  governing  such  issues.  Last,  recommendations 

were made in relation to guidelines and good practice notes to promote the use of various types of evidence, such 

as statistical evidence and situation testing.

In Austria the view was that the burden of proof rule is not a suitable entry point for improvement. The system 

of proof and the evaluation of evidence in civil procedure is very flexible and not very formalised in Austria. Some 

important decisions by the highest courts have clarified how the burden of proof rule should operate so that is not 

seen as very problematic. By contrast, the issue of sanctions and compensation are seen as more crucial.

In Belgium it is felt that despite the fact that the Centre for Equal Opportunities and Opposition to Racism initiated 

and won the famous Feryn130 case, there are still shortcomings in the way judges are implementing the shift of 

the  burden  of  proof.  In  its  decisions  issued  in  2009  on  several  actions  for  annulment  against  the  2007  Federal 

Anti-discrimination Acts, the Constitutional Court gave a controversial insight into the shift of the burden of proof 

mechanism. The Court referred to the judge’s power of assessment to allow the reversal of the burden of proof as 

if the judge had a discretionary power to allow such a reversal or not (Decision No 17/2009, para. B.93.4; Decision 

No 39/2009, para. B.53; Decision No 40/2009, para. B.98). More training for judges and lawyers is certainly needed 

and would produce better results in discrimination cases.

In Bulgaria the legislative provisions on the burden of proof are currently being amended in order to clarify that the 

plaintiff need only establish facts which make it possible to make an inference of discrimination. However, it is felt 

that a remaining limitation is that the legislation only refers specifically to a shift of the burden of proof in cases 

brought by a direct victim of discrimination, and not in cases of actio popularis where an NGO acting in the public 

interest seeks to establish discrimination against a class.

In Cyprus it is felt that the exclusion of equality body proceedings from the burden of proof rule is a significant gap 

which should be rectified, even though it is allowed by the EU Directives. The national expert also maintains that it 

would be an improvement if the reversal of proof was obligatory in all proceedings where discrimination is claimed, 

irrespective of whether the law invoked in the proceedings was the law transposing the Directives or some other law, 

or indeed the Constitution. But the most significant factor is that the principle of reversing the burden of proof is not 

widely known, either to victims or in legal and judicial circles. To address this gap, targeted and specific awareness-

raising activities should become obligatory and the issue should be introduced into the syllabus for the Bar Exam.

In the Czech Republic, it is difficult to put forward improvements because of lack of case law.

In Denmark there is a need for clarification of the three elements of the shared burden of proof rule. In individual 

judgments from the civil courts and decisions from the Board of Equal Treatment concluding that discrimination 

did not take place, the reasoning is often not clear as to whether the employee did not establish facts creating a 

presumption of differential treatment, or whether the employer was able to prove that discrimination did not take 

place. In addition there seem to be different requirements for the establishment of facts with regard to the various 

discrimination grounds.

130  Case C-54/07 Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV [2008] ECR l—5187.

82

n ReveRsing the buRden of pRoof nTHEMATIC REPORTIn Estonia the relevant legal provisions related to the burden of proof are considered adequate, but the scarcity of 

case law suggests that they are rarely used in practice. However, a legal obligation to give written explanations in 

response  to  a  written  request  has  been  introduced  in  national  anti-discrimination  legislation.  Where  the  plaintiff 

makes such a request the respondent is obliged to give relevant written explanations within 15 days. It is felt that 

this  is  potentially  a  very  important  innovation  which  may  provide  a  victim  with  prima  facie  evidence,  although 

unfortunately no penalty is provided for breach of the obligation so that in practice the new rule has been ignored 

in some cases.

In Finland the shared burden of proof is regarded as an important tool combating discrimination even though the 

number of discrimination cases in courts remain low, which is problematic.

In FYROM, the legal framework needs to be improved in order to bring it in line with the EU burden of proof rule. It is 

also felt that there should be an obligation on the national equality body to apply the burden of proof rule in order 

to lead in discrimination cases. It is also suggested that capacity-building for legal practitioners on the burden of 

proof rule should be undertaken (study visits or peer-to-peer exchange) and that a compendium of EU practices with 

examples from cases in the Member States should be produced. Finally, the use of evidentiary techniques such as 

situation testing in discrimination cases should be encouraged, by requiring or recommending their admissibility as 

evidence before equality bodies and the courts.

In Germany it is felt that a central problem of the regulation on the burden of proof is access to information. It is a 

matter of discussion whether or not the person discriminated against should have a right to information. Although 

in  Meister  the  CJEU  ruled  that  such  a  right  does  not  arise  from  the  EU  Directives,  it  may  be  worth  considering 

whether such a regulated right to information could improve the application of the rules on the burden of proof. 

Difficult questions such as legitimate interests of data protection could be accommodated by careful regulation (and 

limitation) of this claim.

In Greece the EU rules on the burden of proof, although transposed into anti-discrimination legislation, have not 

been incorporated into the Code of Civil Procedure and the Code of Administrative Procedure. They are not applied 

in practice due to lack of awareness. If they were applied in the future, the burden of proof rule could be improved 

in its implementation or operation in order to produce better results in discrimination cases.

In  Hungary  although  the  national  legislative  provisions  are  more  favourable  to  the  plaintiff  as  they  specifically 

require  the  establishment  of  two  elements  (the  protected  ground  and  harm  or  disadvantage),  court  practice  is 

otherwise  and  there  are  serious  problems  concerning  the  implementation  of  the  burden  of  proof  rule,  with  two 

recent  cases  appearing  to  ignore  it.131  Although  the  legislation  does  not  require  a  causal  link  to  be  established 

between the protected ground and the disadvantage, the current position of the Supreme Court indicates that the 

plaintiff must present evidence that makes it at least likely that they have suffered a disadvantage because they 

belong to a certain group. Therefore it is felt that what may be regarded as ‘substantiation’ of the causal link (e.g. 

inferences  from  past  events,  situation  testing,  silence  of  the  respondent  on  certain  issues,  statistical  evidence) 

should be outlined and also that very thorough and repeated training needs to be made available to the judiciary.

In Ireland there is a relatively strong right to demand information from the respondent and failure to supply it may 

result in an inference of discrimination being drawn.132 Plaintiffs need to be encouraged by their legal advisers to 

make more frequent use of the forms provided by the Equality Tribunal to ask for information which may be used 

in the proceedings.

131  Supreme Court (Curia), Administrative Review No EBH2010. 2272 and Kecskemét Regional Court Case No 

3.Mf.21.277/2013/5. Both cases related to gender discrimination in the field of employment.

132  Employment Equality Act 1998-2011 section 81, Equal Status Act 2000-2012 section 35. 

83

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt viiiThe view in Italy is that the kind of facts that should be proved in order to trigger the shift in the burden of proof 

is the key question and that guidelines or a collection of practices from different Member States would be useful.

The need for clarification is also identified by Latvia, where lower courts have been criticised for failing to shift the 

burden of proof. There is a need to clarify in practice at what stage of court proceedings the shift applies, in order 

to make it more effective.

In Liechtenstein due to the small number of discrimination cases that have come before the courts, there is no real 

court practice. It is felt that it would be an improvement in the operation of the national law if rules were defined 

and clarified that when facts are established by the plaintiff from which it may be presumed that there has been 

direct or indirect discrimination, the burden of proof should shift and the respondent must prove that there has been 

no discrimination. The use of statistical evidence could also be emphasised.

In  Lithuania  it  is  felt  that  the  rule  of  the  shift  of  the  burden  of  proof  is  explicitly  outlined  in  the  Law  on  Equal 

Treatment, has been used in the few cases adjudicated so far, and is recognised by the courts. Therefore it is not felt 

that additional measures are required.

This is also the point of view of Luxembourg. In view of their seemingly satisfactory application in case law, the rules 

concerning the burden of proof are considered sufficient to produce good results in cases of discrimination.

For the Netherlands the answer is twofold. In the equal treatment legislation and its application by the equality 

body no improvements are necessary. In general civil law cases, where there is an element of discrimination, the 

experience is that judges sometimes are not aware of the special division of the burden of proof in discrimination 

cases and simply apply the general civil law rules in its regard. This is not a matter of legislation that would need 

adaptation, but a matter of training of judges.

In Norway the burden of proof as is it currently implemented by the Gender Equality and Anti-discrimination Ombud 

and the Gender Equality and Anti-discrimination Tribunal is considered to work quite well. The challenge in Norway 

is that the number of cases brought before the judiciary is marginal, so that it is unknown how the burden of proof 

will be implemented by the courts in discrimination cases. However, as the wording of the different pieces of anti-

discrimination  legislation  is  similar  and  clear  on  the  burden  of  proof,  it  is  assumed  that  the  courts  will  use  the 

legislation as their starting point.

In Poland it is felt that additional training for judges is needed. Research conducted in 2012 revealed that some judges 

do not apply the shift of the burden of proof in discrimination cases. A further issue is that in recent jurisprudence 

of the Supreme Court (based on the Labour Code) it is not sufficient for the employee to be able to substantiate the 

fact of unequal treatment, but he should also indicate the likely prohibited diversity criterion at issue when the cause 

of discrimination is not obvious, i.e. determined clearly by gender, age, disability, race or ethnic origin. This position 

of the Supreme Court has been criticised.133

In Portugal, it is also felt that the rule should apply to a court or other body competent to carry out an investigation.

In Slovakia it is felt that the courts have difficulty in understanding and applying the burden of proof. It would therefore 

be important to introduce training and education for legal professionals. The shift in the burden of proof only applies 

in (civil) judicial proceedings and not in any other types of proceedings. Although in administrative proceedings it is 

133  K. Gonera [Supreme Court Judge] (2011). Rozkład ciężaru dowodu w sprawach o dyskryminację w zatrudnieniu w świetle 

orzecznictwa Sądu Najwyższego [Shift of the burden of proof in discrimination cases in the light of the Supreme Court 

jurisprudence].

84

n ReveRsing the buRden of pRoof nTHEMATIC REPORTup to the investigating body in question to investigate the facts of the case, in practice discrimination is very rarely 

proved.  Accordingly  for  bodies  investigating  discrimination  on  an  ex  officio  basis,  procedural  and  methodological 

guidelines should be introduced and on the level of legislation, the shift in the burden of proof should be introduced 

for administrative proceedings (such as in proceedings before labour inspectorates). A further problem relates to 

the need to clarify the burden of proof at the level of the rebuttal. The Constitutional Court has recently134 upheld a 

regional court judgment finding that ‘the respondent proved that it is more likely that the discrimination has not taken 

place than it is likely that the discrimination has taken place’ thereby discharging the burden of proof or rebuttal.135 

The understanding of the court seemed to be that once the burden of proof is shifted to the respondent, he is not 

obliged to prove that there has been no breach of the principle of equal treatment but that it is sufficient to provide 

evidence establishing some probability of non-discrimination, provided that the probability of non-discrimination is 

higher than the probability of discrimination.

In Slovenia it is felt that the biggest problem is not the burden of proof as applied but the lack of cases that reach 

the courts, due to issues such as the lack of access to justice for vulnerable groups caused by procedural barriers 

and litigation costs.

In Spain, the legislative provisions on the shift in the burden of proof are quite satisfactory. The problem is insufficient 

knowledge of these standards among both public legal agents (judges and lawyers) and private professionals. Hence 

the recommendation would be to carry out intensive training activities in the field to specifically target these legal 

agents.

In Sweden the reasons why a plaintiff is more likely to win a discrimination case in the civil court system than in the 

labour courts are being investigated, including the possibility that the Labour Court applies the rules on the burden 

of proof in a narrow way. The lower success rate for race and ethnicity claims is also being examined.

134  Decision No II. ÚS 383/2013-16 of 10 July 2013, available at http://portal.concourt.sk/pages/viewpage.

action?pageId=1277961. 

135  Judgment of the Regional Court of Banská Bystrica No 13 Co 263/2012-208 of 27 November 2012. 

85

n ReveRsing the buRden of pRoof nTHEMATIC REPORTpARt viiin REVERSInG  THE  BURDEn Of PROOf  n

Klaas | 1998

TH E M AT IC REPORT

n ReveRsing the buRden of pRoof nTHEMATIC REPORTConclusions

87

n ReveRsing the buRden of pRoof nTHEMATIC REPORT 
 
 
 
 
 
 
 
 
 
European law provides for the reversal of the burden of proof in the following terms: 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 (on a protected ground), it shall be for the respondent to prove that there has been no breach of the 

principle of equal treatment. Rules are identical across the protected grounds, except for nationality. The reversal of 

the burden of proof does not apply to criminal procedures and proceedings in which a court or competent body has 

an investigatory or inquisitorial role to ascertain the facts of the case. European law does not prevent Member States 

from introducing rules of evidence which are more favourable to plaintiffs.

The reversal of the burden of proof does not mean that plaintiffs are exempt from convincing the court that they 

have a case. In order to reverse the burden of proof they must first establish a prima facie case, i.e. convince the 

court of the likeliness or probability that they suffered discrimination. Once plaintiffs establish ‘facts that call for 

an  explanation’  and  one  plausible  explanation  is  that  discrimination  has  occurred,  the  respondent  must  offer  an 

‘innocent explanation’ that is capable of breaking the chain in the causal links between the harm, the conduct and 

the protected ground. The burden of proof shifts before a court can make a final finding on causation. It then moves 

to the respondent to prove that discrimination played no part whatsoever in the treatment or effect complained of. 

If the respondent is unable to explain the treatment using objective reasons unrelated to discrimination, he will be 

liable for a breach of non-discrimination law. The reversal of the burden of proof applies to the various forms of 

discrimination. A scheme of its application has not yet been drawn up by the CJEU.

At  the  heart  of  discrimination  lies  prejudice  and  bias  pertaining  to  the  protected  ground.  Discrimination  is  an 

unthinking reaction to a person not because of her or his conduct but because she or he is a member of a group 

which  is  disliked  by  the  individual  discriminator  or  by  society  in  general.  Striking  the  right  balance  between  the 

parties in establishing the bias is a tremendous task that should entail awareness of societal stereotypes and power 

relations in the wide variety of scenarios to which European non-discrimination law pertains. The very function of the 

reversal of the burden of proof is to ‘factor in’ such bias to the evidentiary rules for the benefit of those who suffer it.

The reversal of the burden of proof is a procedural rule that must be read in conjunction with the definition of the 

type of discrimination invoked. It connects evidence to the showing of bias and derails the course of proceedings at 

two distinct junctions: (i) it lowers the onus of proof (presumption) resting on the plaintiff in relation to the causal 

link between the protected ground and the conduct (prima facie case), while (ii) placing and limiting the remaining 

onus of proof in relation to bias onto the respondent (justification defence).

Causation  is  a  two-tier  exercise.  Beyond  a  causal  link  between  the  conduct  and  the  harm,  another  causal  link 

between the protected ground and the conduct must also be established. The latter causal link may vary as to the 

degree of severity, and its establishment does not wholly fall to the plaintiff. It is at this point where the formula 

‘establish facts from which it may be presumed’ needs to be applied. In continental Europe, it is enough to show that 

a respondent failed to meet his duty of care or that he was negligent in his conduct. On the basis of the preliminary 

referrals, national judges seem to grapple with this aspect: the nature of causation in cases of discrimination.

The main rule is that unless there is comparison, there is no causation. There are exceptions to this rule, particularly 

in cases where comparison is not necessary to establish discrimination, such as with pregnancy and harassment. 

Comparison is not relevant when an intent to discriminate can be established. There is no need then to reverse the 

burden of proof, because intent is at play.

While accessing evidence held by the respondent once a prima facie case is made out appears to be straightforward 

in cases when the plaintiff is ‘in’ – as in litigation involving equal pay, promotion and access to vocational training 

– national courts are awaiting clear guidance from the CJEU on cases in which the plaintiff is ‘out’ – such as in 

recruitment and other ‘access’ scenarios. This is the reason why questions relating to the prima facie case were 

88

n ReveRsing the buRden of pRoof nTHEMATIC REPORTreferred  in  particular  in  Kelly  and  Meister  but  also  to  some  degree  in  Feryn  and  Accept.  In  the  latter  two  cases, 

national courts sought guidance on drawing inferences from previous discriminatory conduct or statements.

The outstanding issue that awaits resolution by the CJEU or further legislation at the EU level is ensuring the plaintiff’s 

access to information necessary to make the comparison if the respondent is unwilling or – due to confidentiality 

– unable to provide such information. Future case law needs to analyse not only relevant European data protection 

provisions and national rules on disclosure, but more importantly, it needs to clarify whether the personal data of 

individual(s) not party to the proceedings are at all needed to draw a comparison. Should it be established that 

redacted information is sufficient, data protection concerns may become obsolete. In order to facilitate access to 

information, a Commission Recommendation on the questionnaire procedure may be useful.

The Racial and Employment Equality Directives have been transposed for more than a decade now and national 

burden of proof provisions are largely compliant with European law. There is a scarcity of case law, which renders 

any extensive analysis impossible. Moreover, in many jurisdictions it is difficult to obtain an overview of whether and 

how the burden of proof shift applies in practice. Concerns have been raised in relation to practice in Bulgaria, Cyprus, 

Denmark, FYROM, Hungary, Slovakia and Sweden. In France, the provision more favourable to plaintiffs has recently 

been amended, which raises concerns in relation to a potential breach of the non-regression principle.

Concerns  include  access  to  information  and  establishing  a  comparator.  There  is  an  imperfect  understanding  of 

how the rule applies in relation to establishing prima facie cases. In most states, a causal link has to be proved on 

the balance of probabilities before the burden of proof shifts to the respondents. There are some indications that 

in  practice  the  shift  may  operate  differently  according  to  the  nature  of  the  case  and  in  particular  the  ground  of 

discrimination invoked.

The  Directives  do  not  provide  concrete  standards  of  proof  by  which  the  respondent  can  successfully  rebut  the 

presumption of discrimination. While the CJEU has clarified the standards of justification in gender cases, and made 

inroads into shaping the justification of age discrimination, it has not had the opportunity to deal with the other 

grounds to the same degree of detail. The applicable standard of proof for rebuttal is not known for all states but 

seems to be too lenient in a few, such as Austria, Liechtenstein, Norway and Slovakia.

In order to improve implementation, it is recommended to train practitioners, provide guidance and a compendium of 

good practices, conduct in depth research into the differences in outcomes across the protected grounds, and issue 

guidelines and good practice notes to promote the use of various types of evidence, such as statistical evidence and 

situation testing. The provision that exempts inquisitorial proceedings from the burden of proof rule is problematic. 

Finally, as detailed above, the operation of the burden of proof rule would be improved by its application to equality 

bodies.

89

n ReveRsing the buRden of pRoof nTHEMATIC REPORTn REVERSInG  THE  BURDEn Of PROOf  n

Nel | 1941

TH E M AT IC REPORT

Bibliography

91

n ReveRsing the buRden of pRoof nTHEMATIC REPORT 
 
 
 
 
 
 
 
 
 
Allen, Dominique (2009). ‘Reducing the burden of proving discrimination in Australia.’ Sydney L. Rev. 31.

Ambrus, Mónika; Busstra, Marjolein; and Henrard, Kristin (2010). ‘The Racial Equality Directive and Effective Protection 

against Discrimination: Mismatches between the Substantive Law and Its Application’, Erasmus L. Rev. 3.

Banks, J. and Russell, H. (2011). Pregnancy Discrimination in the Workplace: Legal Framework and Review of Legal 

Decisions 1999 to 2008. Dublin: HSE Crisis Pregnancy Programme/Equality Authority.

Besson, Samantha (2008). ‘Gender Discrimination under EU and ECHR Law: Never Shall the Twain Meet?’, Human 

Rights Law Review.

Craig and De Búrca (2011). EU Law: Text, Cases and Materials. Oxford: Oxford University Press.

Dewhurst, Elaine (2013). ‘The Development of EU Case – Law on Age Discrimination in Employment: “Will You Still 

Need Me? Will You Still Feed Me? When I’m Sixty-Four”’, European Law Journal 19.4.

Ellis, E. and Watson, P (2012). EU Anti-Discrimination Law.  Oxford: Oxford University Press.

Epstein, Paul, QC and Masters, Dee (2011). Direct Discrimination: A Practical Guide to Comparators. London: Cloisters 

Chambers.

European  Union  Agency  for  Fundamental  Rights  and  Council  of  Europe  (2010)  Handbook  on  European  non-

discrimination law.

Farkas, Lilla (March 2014). Report on Discrimination of Roma Children in Education. Publication forthcoming.

Fennelly, D (2012). Selected issues in Irish Equality Case Law 2008-2011. Dublin: Equality Authority.

Interights (2011). Non-Discrimination in International Law: A Handbook for Practitioners.

Milieu Ltd (2011). Comparative study on access to justice in gender equality and anti-discrimination law. European 

Commission, DG Justice.

Jacobs, F (1997). ‘Enforcing Community Rights and Obligations’ in Lonbay and Biondi (eds) Remedies for Breach of 

EC Law. Chichester: Wiley.

Lustgarten, Laurence (1977). ‘Problems of Proof in Employment Discrimination Cases’,  Industrial Law Journal 6.

McColgan,  Aileen  (2013).  Report  on  Measures  to  Combat  Discrimination:  Directives  2000/43/EC  and  2000/78/EC, 

[Country Report 2012 for the United Kingdom]. European Network of Legal Experts in the Non-discrimination Field.

McColgan,  Aileen  (2006).  ‘Cracking  the  Comparator  Problem:  Discrimination,  “Equal”  Treatment  and  the  Role  of 

Comparisons’, European Human Rights Law Review 6, pp. 650-677.

O’Cinneide, Colm (2012). The Evolution and Impact of the Case-Law of the Court of Justice of the European Union on 

Directives 2000/43/EC and 2000/78/EC. European Network of Legal Experts in the Non-discrimination Field.

92

n ReveRsing the buRden of pRoof nTHEMATIC REPORTPalmer,  F  (2006).  ‘Re-dressing  the  Balance  of  Power  in  Discrimination  Cases:  The  Shift  in  the  Burden  of  Proof’, 

European  Anti-Discrimination  Law  Review  4.  European  Network  of  Legal  Experts  in  the  Non-discrimination  Field, 

p.23.

Rainey, Bernadette; Wicks, Elisabeth; Ovey, Clare (2014). The European Convention on Human Rights. Jacobs, White 

and Ovey.

Sargeant, Malcolm (2012). Age discrimination in employment. Gower Publishing Ltd.

Schiek, D., Waddington, L. and Bell, M. (2007). Cases, Materials and Text on National, Supranational and International 

Non-discrimination Law. Oxford: Hart Publishing.

Waddington, Lisa and Bell, Mark (2001). ‘More Equal than Others: Distinguishing European Union Equality Directives’, 

Common Market Law Review volume 38, issue 3, pp. 587-611.

Table of legislation

Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective 

redress  mechanisms  in  the  Member  States  concerning  violations  of  rights  granted  under  Union  Law,  OJ  L  201, 

26.7.2013, pp. 60-65.

Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex, 

Official Journal L 014 20/01/1998, p. 6.

Council  Directive  2000/43/EC  of  29  June  2000  implementing  the  principle  of  equal  treatment  between  persons 

irrespective of racial or ethnic origin, Official Journal L 180, 19/07/2000 pp. 0022-0026.

Council  Directive  2000/78/EC  of  27  November  2000  establishing  a  general  framework  for  equal  treatment  in 

employment and occupation, Official Journal L 303, 02/12/2000, p.0016-0022.

Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the 

principle of equal opportunities and equal treatment of men and women in matters of employment and occupation 

(recast), Official Journal L 204, 26.7.2006, pp. 23-36.

Proposal  for  a  Council  Directive  implementing  the  principle  of  equal  treatment  between  women  and  men  in  the 

access to and supply of goods and services COM (2003) 657 final.

List of cases

Court of Justice of the European Union.

Case 26/62 Van Gend en Loos [1963] ECR 1.

Case C-43/75 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena, ECR 455, [1976].

Case 33/76 Rewe-Zentralfinanz [1976] ECR 1989.

93

n ReveRsing the buRden of pRoof nTHEMATIC REPORTCase 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043.

Case 199/82 Amministrazione delle Finanze dello Stato v SpA San Giorgio [1983] ECR 3595.

Case C-109/88 Danfoss [1989] ECR I-3199.

Case C-127/92 Enderby v Frenchay Health Authority 1993 ECR I-05535.

Case C-13/94 P v S and Cornwall County Council, ECR 1996.

Case C-167/97 R v Secretary of State for Employment, ex parte Seymour-Smith and Perez [1999] ECR I–623.

Case C-432/05 Unibet Ltd v Justitiekanslern [2007] ECR 1—2271.

Case C-267/06 Tadao Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECR I-1757.

Case C-303/06 S. Coleman v Attridge Law and Steve Law [2008] ECR I-5603.

Case C-13/05 Sonia Chacón Navas v Eurest Colectividades SA [2006] ECR I-6467.

Case C-54/07 Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV [2008] ECR l—5187.

Case C-246/09 Bulicke [2010] ECR I-7003.

Case  C-391/09,  Malgožata  Runevič-Vardyn,  Łukasz  Paweł  Wardyn  v  Vilniaus  miesto  savivaldybės  administracija, 

Lietuvos  Respublikos  teisingumo  ministerija,  Valstybinė  lietuvių  kalbos  komisija,  Vilniaus  miesto  savivaldybės 

administracijos Teisės departamento Civilinės metrikacijos skyrius [2011] ECR I-03787.

Case C-415/10 Meister v Speech Design [2012] ECR I-0000.

Case C-104/10 Patrick Kelly v National University of Ireland (University College, Dublin), [2011] ECR I-06813.

Case C-132/11 Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH v Betriebsrat Bord der Tyrolean Airways Tiroler 

Luftfahrt Gesellschaft mbH, ECLI:EU:C:2012:329.

Case C-81/12 Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării, not yet reported.

European Court of Human Rights

Zarb Adami v Malta, Judgment of 20 June 2006, Application No 17209/02.

DH and Others v the Czech Republic, Judgment of 13 November 2007, Application No 57325/00.

Orsus and Others v Croatia, Grand Chamber Judgment of 16 March 2010, Application No 15766/03.

Konstantin Markin v Russia, Judgment of 22 March 2012, Application No 30078/06.

94

n ReveRsing the buRden of pRoof nTHEMATIC REPORTnational courts

Oxford v Department of Health and Social Security (1977) ICR 885, United Kingdom.

Mitchell v Southern Health Board (2001) Labour Court DEE 011, Ireland.

IBM v Buscail, Court of Appeal, Montpellier, (2003) No 0200504, France.

Equality Tribunal (2004) EED048, Ireland.

Igen Ltd (Formerly Leeds Careers Guidance) and Others v Wong, Chamberlin and Another v Emokpae, and Webster v 

Brunel University (2005) IRLR 258, United Kingdom.

Madarassy v Nomura International Plc, (2007) ICR 867, United Kingdom.

Supreme Court decision (2008) 9ObA177/07f, Austria.

95

n ReveRsing the buRden of pRoof nTHEMATIC REPORTEuropean Commission

Reversing the burden of proof: practical dilemmas at the European and national level

Luxembourg: Office for Official Publications of the European Union

2013 —  95 pp. — 21 × 29,7 cm

ISBN 978-92-79-44625-2

doi: 10.2838/05358

How to obtain EU publications

Our priced publications are available from EU Bookshop (http://bookshop.europa.eu), where you can place an order  
with the sales agent of your choice.

The Publications Office has a worldwide network of sales agents. 

You can obtain their contact details by sending a fax to (352) 29 29-42758.

D
S
-
0
6
-
1
4
-
2
3
8
-
E
N
-
N