Galina Meister v Speech Design Carrier Systems GmbH.
Date: 2012-04-19
33. At the outset, it should be recalled that it follows from Article 3(1)(a) of Directive 2000/43, Article 3(1)(a) of Directive 2000/78 and indent (a) of the second subparagraph of Article 1 and Article 14(1)(a) of Directive 2006/54 that those directives apply to a person seeking employment, and also in regard to the selection criteria and recruitment conditions of that employment.
36. Interpreting Article 4(1) of Directive 97/80 in Kelly , the Court held in paragraph 30 of the judgment that it is the person who considers himself to have been wronged because the principle of equal treatment has not been applied to him who must initially establish the facts from which it may be presumed that there has been direct or indirect discrimination. It is only where that person has established such facts that it is then for the defendant to prove that there has been no breach of the principle of non-discrimination.
37. The Court also held that the assessment of the facts from which it may be presumed that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with national law or practice ( Kelly , paragraph 31), as stated in Recital 15 of Directives 2000/43 and 2000/78 and Recital 30 of Directive 2006/54.
38. Moreover, the Court stated that Directive 97/80, pursuant to Article 1 thereof, seeks 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 the principle of equal treatment has not been applied to them to have their rights asserted by judicial process after possible recourse to other competent bodies ( Kelly , paragraph 33). In that regard, it should be noted that Article 7(1) of Directive 2000/43, Article 9(1) of Directive 2000/78 and Article 17(1) of Directive 2006/54 refer to the same principle.
39. In those circumstances the Court concluded, at paragraph 34 of Kelly,  that although Article 4(1) of that Directive 97/80 does not specifically entitle persons who consider themselves wronged because the principle of equal treatment has not been correctly applied to them to information in order that they may establish ‘facts from which it may be presumed that there has been direct or indirect discrimination’ in accordance with that provision, it is not however inconceivable that a refusal of disclosure by the defendant, in the context of establishing such facts, is liable to compromise the achievement of the objective pursued by that directive and, in particular to deprive that provision of its effectiveness.
40. As was noted at paragraph 35 of the present judgment, Directive 97/80 was repealed and replaced by Directive 2006/54. However, having regard to the wording and scheme of the articles concerned by the present reference for a preliminary ruling, there is nothing to suggest that, in adopting Directives 2000/43, 2000/78 and 2006/54, the European Union legislator intended to amend the rules on the burden of proof established by Article 4(1) of Directive 97/80. Consequently, in the context of establishing the facts from which it may be presumed that there has been direct or indirect discrimination, it must be ensured that a refusal of disclosure by the defendant is not liable to compromise the achievement of the objectives pursued by Directives 2000/43, 2000/78 and 2006/54.
41. According to the wording of the second and third subparagraphs respectively of Article 4(3) TEU, the Member States inter alia ‘shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’ and ‘shall … refrain from any measure which could jeopardise the attainment of the Union’s objectives’, including those pursued by directives (see Case C‑61/11 PPU El Dridi  [2011] ECR I‑3015, paragraph 56, and Kelly , paragraph 36).
42. Therefore, it is for the referring court to ensure that the refusal of disclosure by Speech Design, in the context of establishing facts from which it may be presumed that there has been direct or indirect discrimination against Ms Meister, is not liable to compromise the achievement of the objectives pursued by Directives 2000/43, 2000/78 and 2006/54. It must, in particular, take account of all the circumstances of the main proceedings, in order to determine whether there is sufficient evidence for a finding that the facts from which it may be presumed that there has been such discrimination have been established.
43. In that regard, it should be recalled that, as is clear from Recital 15 of Directives 2000/43 and 2000/78 and Recital 30 of Directive 2006/54, national law or the national practices of the Member States may provide, in particular, that indirect discrimination may be established by any means including on the basis of statistical evidence.