Role of the Charter
Article 21 is attributed a pivotal role in answering question 1 by legitimating a purposeful and wide interpretation of the personal scope of the Racial Equality Directive. The 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 Runevi?-Vardyn and Wardyn, C391/09, EU:C:2011:291, paragraph 43)” (para 42 of CJEU).
The concept of ‘discrimination on the grounds of ethnic origin’, for the purpose of the Racial Equality Directive, must be interpreted as being intended to apply to persons who have a certain ethnic origin or those who, without possessing that origin, suffer, together with the former, from the less favourable treatment or particular disadvantage – the protection against discrimination on grounds of racial or ethnic origin which the directive is designed to guarantee is to benefit ‘all’ persons. (para 57).
According to the CJEU (para 58) this results from the wording of Article 19 TFEU and of 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 Runevi?-Vardyn and Wardyn, C391/09, EU:C:2011:291, paragraph 43, and, by analogy, judgment in Felber, C529/13, EU:C:2015:20, paragraphs 15 and 16). The Court also invites to by analogy, look into the judgment in Coleman, C303/06, EU:C:2008:415, paragraph 38).
Article 21 frames the answers to Questions 2 to 4 as “Directive 2000/43 gives specific expression, in its field of application, to the principle of non-discrimination on grounds of race and ethnic origin which is enshrined in Article 21 of the Charter” (para 72). Article 21 is used to support a higher level of protection against the practice in the case. In answering questions 2 to 4 the CJEU establishes that CHEZ RB’s practices are “offensive and stigmatising” (para 84, 87, 108) and constitute direct discrimination (76) but this is a matter which is for the referring court to determine (para 91).
According to the CJEU the comparator at stake are other urban districts (provided with electricity by CHEZ) and not districts with the same levels of interference with the meters: “in principle, all final consumers of electricity who are supplied by the same distributor within an urban area must, irrespective of the district in which they reside, be regarded as being, in relation to that distributor, in a comparable situation” (para 90).
The CJEU empowers the national courts by stating that it is for “the referring court to take account of all the circumstances surrounding the practice at issue” (...) “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, C415/10, EU:C:2012:217, paragraph 42)”. The CJEU stresses that CHEZ RB asserted that in its view the “damage and unlawful connections are perpetrated mainly by Bulgarian nationals of Roma origin”. Such assertions suggest that the practice at issue is based on “ethnic stereotypes or prejudices”. Plus, notwithstanding requests to this effect from the referring court in respect of the burden of proof, the CJEU highlights that CHEZ RB affirmed that they are “common knowledge”. Bulgarian citizens of Roma origin are being considered “as a whole” (...) “potential perpetrators”. The Court recalls that such a perception may also be relevant for the overall assessment of the practice at issue (see, by analogy, judgment in Asocia?ia Accept, C81/12, EU:C:2013:275, paragraph 51).
To answer Questions 5 to 9 the CJEU rules that a practice, such as that at issue in the main proceedings, does not amount to direct discrimination within the meaning of Article 2(2)(a) of the directive, is then, in principle, liable to constitute an apparently “neutral practice” putting persons of a given ethnic origin at a particular disadvantage compared with other persons and therefore constituting indirect discrimination.
The concept be understood not as designating a practice whose neutrality is particularly ‘obvious’ or neutral ‘at first glance’, but as being neutral ‘ostensibly’. It is the Court’s settled case-law that 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). If it is apparent that a measure which gives rise to a difference in treatment has been introduced for reasons relating to racial or ethnic origin, that measure must be classified as ‘direct discrimination’ within the meaning of Article 2(2)(a) of Directive 2000/43.
According to the Court’s case law on indirect discrimination, it 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). No particular degree of seriousness is required so far as concerns the particular disadvantage referred to in the RED.
Held: Article 2(2)(b) of Directive 2000/43 must be interpreted as meaning that:
that provision precludes a national provision according to which, in order for there to be indirect discrimination on the grounds of racial or ethnic origin, the particular disadvantage must have been brought about for reasons of racial or ethnic origin;
the concept of an ‘apparently neutral’ provision, criterion or practice as referred to in that provision means a provision, criterion or practice which is worded or applied, ostensibly, in a neutral manner, that is to say, having regard to factors different from and not equivalent to the protected characteristic;
the concept of ‘particular disadvantage’ within the meaning of that provision does not refer to serious, obvious or particularly significant cases of inequality, but denotes that it is particularly persons of a given racial or ethnic origin who are at a assuming that a measure, such as that described in paragraph 1 of this operative part, does not amount to direct discrimination within the meaning of Article 2(2)(a) of the directive, such a measure is then, in principle, liable to constitute an apparently neutral practice putting persons of a given ethnic origin at a particular disadvantage compared with other persons, within the meaning of Article 2(2)(b).
On question 10 and on indirect discrimination, the CJEU ruled that any measure disadvantaging a Roma majority district which is not applied to non-Roma majority districts needs to be objectively justified. Combating of fraud and criminality constitute legitimate aims recognised by EU law (see Placanica and Others, C?338/04, C?359/04 and C?360/04, EU:C:2007:133, paragraphs 46 and 55) but objective justification must be interpreted strictly.
The practice is said to be designed both to prevent fraud and abuse and to protect individuals against the risks to their life and health to which such conduct gives rise, as well as to ensure the quality and security of electricity distribution in the interest of all users.
However, the company has the task at the very least of establishing objectively, first, the actual existence and extent of that unlawful conduct and, second, in the light of the fact that some 25 years have since elapsed, the precise reasons for which there is, as matters currently stand, a major risk in the district concerned that such damage and unlawful connections to meters will continue. CHEZ RB cannot merely contend that such conduct and risks are ‘common knowledge’, as it seems to have done before the referring court.
In case CHEZ RB is able to establish that the practice at issue objectively pursues the legitimate aims relied upon by it, it will also be necessary to establish, as Article 2(2)(b) of Directive 2000/43 requires, that that practice constitutes an appropriate and necessary means for the purpose of achieving those aims. Would other appropriate and less restrictive measures not enable the problems encountered to be resolved? The KZD submitted in its observations that other electricity distribution companies have given up the practice at issue, giving preference to other techniques for the purpose of combating damage and tampering, and have restored the electricity meters in the districts concerned to a normal height.
It is for the referring court to determine whether other appropriate and less restrictive measures thus exist for the purpose of achieving the aims invoked by CHEZ RB and, if that is so, to hold that the practice at issue cannot be regarded as necessary within the meaning of Article 2(2)(b) of Directive 2000/43.
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.).
The referring court will, first, have to pay regard to the legitimate interest of the final consumers of electricity in having access to the supply of electricity in conditions which do not have an offensive or stigmatising effect.
It will also be incumbent upon it to take into consideration the binding, widespread and long- standing nature of the practice at issue. In its assessment, the referring court will, finally, have to take account of the legitimate interest of the final consumers inhabiting the district concerned in being able to check and monitor their electricity consumption effectively and regularly.
Although it seems that it necessarily follows from the taking into account of all the foregoing criteria that the practice at issue cannot be justified under the RED, in the context of proceedings concerning a preliminary reference made on the basis of Article 267 TFEU it is for the referring court to carry out the final assessments which are necessary in that regard.
The Court held that a measure such as that at issue in the main proceedings would be capable of being objectively justified by the intention to ensure the security of the electricity transmission network and the due recording of electricity consumption only if that practice did not go beyond what is appropriate and necessary to achieve those legitimate aims and the disadvantages caused were not disproportionate to the objectives thereby pursued. That is not so if it is found, a matter which is for the referring court to determine, either that other appropriate and less restrictive means enabling those aims to be achieved exist or, in the absence of such other means, that that practice prejudices excessively the legitimate interest of the final consumers of electricity inhabiting the district concerned, mainly lived in by inhabitants of Roma origin, in having access to the supply of electricity in conditions which are not of an offensive or stigmatising nature and which enable them to monitor their electricity consumption regularly.