"CHEZ Razpredelenie Bulgaria" AD v Komisia za zashtita ot diskriminatsia.
Date: 2015-07-16
32. Thirdly, the referring court holds that the KZD was wrong in considering that Ms Nikolova’s Roma origin was not established. In identifying herself, in her application, with the population of Roma origin of the ‘Gizdova mahala’ district, she defined herself as a person of such origin. In any event, that court, which refers in this regard to the judgment in Feryn  (C‑54/07, EU:C:2008:397), considers that in order for discrimination to exist there does not have to be an identifiable complainant contending that he has been the victim of such discrimination. According to the referring court, it also follows from the judgment in Coleman  (C‑303/06, EU:C:2008:415) that application of the principle of equal treatment is not limited solely to persons possessing the protected characteristic.
40. It is apparent from recital 12 in the preamble to Directive 2000/43 that the EU legislature considered that, in order to ensure the development of democratic and tolerant societies which allow the participation of all persons irrespective of racial or ethnic origin, specific action in the field of discrimination based on racial or ethnic origin should in particular cover areas such as those listed in Article 3(1) of that directive (see judgment in Runevič-Vardyn and Wardyn , C‑391/09, EU:C:2011:291, paragraph 41).
41. Article 3(1)(h) of Directive 2000/43 makes general reference to access to and supply of goods and services which are available to the public (see judgment in Runevič-Vardyn and Wardyn , C‑391/09, EU:C:2011:291, paragraph 45).
42. As the Court has already held, in the light of the objective of Directive 2000/43 and the nature of the rights which it seeks to safeguard, and in view of the fact that that directive is merely an expression, within the area under consideration, of the principle of equality, which is one of the general principles of EU law, as recognised in Article 21 of the Charter, the scope of that directive cannot be defined restrictively (judgment in Runevič-Vardyn and Wardyn , C‑391/09, EU:C:2011:291, paragraph 43).
55. As, in the light in particular of the divergence between the language versions of Directive 2000/43 that is mentioned in paragraph 53 of the present judgment, the wording of the abovementioned provisions does not in itself settle the question whether the principle of equal treatment which that directive is designed to guarantee is to benefit only those among the class of persons affected by a discriminatory measure based on racial or ethnic origin who actually possess the racial or ethnic origin concerned, it is necessary, for the purpose of interpreting those provisions, to have regard also to their context and to the general scheme and the aim of Directive 2000/43 of which they form part (see to this effect, inter alia, judgments in VEMW and Others , C‑17/03, EU:C:2005:362, paragraph 41 and the case-law cited, and Commission v Portugal , C‑450/11, EU:C:2013:611, paragraph 47 and the case-law cited).
56. In that regard, the Court’s case-law, already recalled in paragraph 42 of the present judgment, under which the scope of Directive 2000/43 cannot, in the light of its objective and the nature of the rights which it seeks to safeguard, be defined restrictively, is, in this instance, such as to justify the interpretation that the principle of equal treatment to which that directive refers applies not to a particular category of person but by reference to the grounds mentioned in Article 1 thereof, so that that principle is intended to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds (see, by analogy, judgment in Coleman , C‑303/06, EU:C:2008:415, paragraphs 38 and 50).
58. It is also supported both by the wording of Article 13 EC, now, after amendment, Article 19 TFEU, a provision which constitutes the legal basis of Directive 2000/43 and which confers on the European Union the competence to take appropriate action to combat discrimination based, inter alia, on racial and ethnic origin (see, by analogy, judgment in Coleman , C‑303/06, EU:C:2008:415, paragraph 38), and, as the Advocate General has observed in point 53 of her Opinion, by the principle of non-discrimination on grounds of race and ethnic origin enshrined in Article 21 of the Charter, to which the directive gives specific expression in the substantive fields that it covers (see judgment in Runevič-Vardyn and Wardyn , C‑391/09, EU:C:2011:291, paragraph 43, and, by analogy, judgment in Felber , C‑529/13, EU:C:2015:20, paragraphs 15 and 16).
62. It should be recalled that, in proceedings brought on the basis of Article 267 TFEU, the Court has no jurisdiction to rule on the compatibility of national rules with EU law. On the other hand, the Court does have jurisdiction to provide the national court with all the guidance as to the interpretation of EU law necessary to enable that court to rule on the compatibility of national rules with EU law (see, inter alia, judgment in Placanica and Others , C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraph 36 and the case-law cited).
71. It must be borne in mind that Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts adopted by the EU institutions. The Court may, however, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions (see, inter alia, judgment in Feryn , C‑54/07, EU:C:2008:397, paragraph 19 and the case-law cited).
78. The Court has pointed out that, although it is the person who considers himself to have been wronged because the principle of equal treatment has not been applied who must initially establish facts from which it may be presumed that there has been direct or indirect discrimination, in the context of establishing such facts it must be ensured that a refusal of disclosure by the respondent is not liable to compromise the achievement of the objectives pursued by Directive 2000/43 (judgment in Meister , C‑415/10, EU:C:2012:217, paragraphs 36 and 40).
79. It is for national judicial or other competent bodies to assess, in accordance with rules of national law and/or national practice, the facts from which it may be presumed that there has been direct or indirect discrimination, as recital 15 in the preamble to Directive 2000/43 states (judgment in Meister , C‑415/10, EU:C:2012:217, paragraph 37).
80. It is therefore, in the present instance, for the referring court to take account of all the circumstances surrounding the practice at issue, 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 direct discrimination on grounds of ethnic origin have been established, and to ensure that a refusal of disclosure by the respondent, here CHEZ RB, in the context of establishing such facts is not liable to compromise the achievement of the objectives pursued by Directive 2000/43 (see, to this effect, judgment in Meister , C‑415/10, EU:C:2012:217, paragraph 42).
84. The referring court must likewise take account of the compulsory, widespread and lasting nature of the practice at issue which, because, first, it has thus been extended without distinction to all the district’s inhabitants irrespective of whether their individual meters have been tampered with or given rise to unlawful connections and of the identity of the perpetrators of that conduct and, secondly, it still endures nearly a quarter of a century after it was introduced, is such as to suggest that the inhabitants of that district, which is known to be lived in mainly by Bulgarian nationals of Roma origin, are, as a whole, considered to be potential perpetrators of such unlawful conduct. Such a perception may also be relevant for the overall assessment of the practice at issue (see, by analogy, judgment in Asociația Accept , C‑81/12, EU:C:2013:275, paragraph 51).
85. Furthermore, it should be recalled that, if the referring court were to conclude that there is a presumption of discrimination, the effective application of the principle of equal treatment would require that the burden of proof then falls on the respondents concerned, who must prove that there has been no breach of that principle (see, in particular, judgments in Coleman , C‑303/06, EU:C:2008:415, paragraph 54, and Asociația Accept , C‑81/12, EU:C:2013:275, paragraph 55). In such circumstances, CHEZ RB, as respondent, would have the task of rebutting the existence of such a breach of the principle of equal treatment by proving that the establishment of the practice at issue and its current retention are not in any way founded on the fact that the districts concerned are districts inhabited mainly by Bulgarian nationals of Roma origin, but exclusively on objective factors unrelated to any discrimination on the grounds of racial or ethnic origin (see, by analogy, judgments in Coleman , C‑303/06, EU:C:2008:415, paragraph 55, and Asociația Accept , C‑81/12, EU:C:2013:275, paragraph 56).
89. It should be recalled that the requirement relating to the comparability of the situations for the purpose of determining whether there is a breach of the principle of equal treatment must be assessed in the light of all the elements which characterise them (see, in particular, judgment in Arcelor Atlantique et Lorraine and Others , C‑127/07, EU:C:2008:728, paragraph 25).
94. In addition to the fact that it corresponds to the most natural meaning of the term used, that sense is required in the light of the Court’s settled case-law relating to the concept of indirect discrimination, according to which, unlike direct discrimination, indirect discrimination may stem from a measure which, albeit formulated in neutral terms, that is to say, by reference to other criteria not related to the protected characteristic, leads, however, to the result that particularly persons possessing that characteristic are put at a disadvantage (see to this effect, in particular, judgment in Z. , C‑363/12, EU:C:2014:159, paragraph 53 and the case-law cited).
100. That condition must, on the other hand, be understood as meaning that it is particularly persons of a given ethnic origin who are at a disadvantage because of the measure at issue.
101. First, such an interpretation is consistent with the Court’s case-law relating to the concept of indirect discrimination, according to which, in particular, such discrimination is liable to arise when a national measure, albeit formulated in neutral terms, works to the disadvantage of far more persons possessing the protected characteristic than persons not possessing it (see in particular, to this effect, judgments in Z. , C‑363/12, EU:C:2014:159, paragraph 53 and the case-law cited, and Cachaldora Fernández , C‑527/13, EU:C:2015:215, paragraph 28 and the case-law cited).
114. In the first place, it must be accepted, as the Advocate General has also observed in point 117 of her Opinion, that, viewed as a whole, such aims constitute legitimate aims recognised by EU law (see, in respect of the combating of fraud and criminality, judgment in Placanica and Others , C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraphs 46 and 55).
123. Furthermore, assuming that no other measure as effective as the practice at issue can be identified, the referring court will also have to determine whether the disadvantages caused by the practice at issue are disproportionate to the aims pursued and whether that practice unduly prejudices the legitimate interests of the persons inhabiting the district concerned (see to this effect, in particular, judgments in Ingeniørforeningen i Danmark , C‑499/08, EU:C:2010:600, paragraphs 32 and 47, and Nelson and Others , C‑581/10 and C‑629/10, EU:C:2012:657, paragraph 76 et seq.).