Although direct discrimination by association is outlawed under the Race Equality Directive, the Court of Justice of the European Union (CJEU) has for the first time made clear in CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia and Nikolova that indirect discrimination by association is also against the law.
Ms Nikolova ran a grocer’s shop in a district of a Bulgarian town inhabited mainly by people of Roma origin. In 1999 and 2000, CHEZ RB installed electricity meters in the district on external concrete pylons at a height of between six and seven metres. This contrasted with the practice in other districts where they were mounted at 1.7 meters usually in the consumer’s property, on the façade or on the wall around the property which allowed consumers to check their consumption.
Ms Nikolova lodged a claim with the KZD (the state body for the prevention of discrimination) that, although she was not of Roma origin, the company had directly discriminated against her on the grounds of nationality because most people in the district were of Roma origin. As a result, she had been treated less favourably as she could not check her electricity meter in order to monitor her consumption. Nor could she be sure that her bills were correct.
Decisions of lower courts
The KZD upheld her claim that the company had put her at a disadvantage compared with CHEZ RB’s other customers whose meters were in accessible locations.
CHEZ RB appealed and the appeal court asked the CJEU to decide whether a) the positioning of the meters constituted less favourable treatment of people of Roma origin under Article 2(2)(a) of the Racial Equality Directive 2000; and b) whether it also constituted discrimination against Ms Nikolova who was not of Roma origin.
Article 1 of the directive lays down “a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment”.
Article 2(1) of the directive outlaws direct and indirect discrimination on racial or ethnic origin. Article 2(2)(a) states that direct discrimination occurs when someone is treated less favourably than someone else on grounds of racial or ethnic origin. Article 2(2)(b) states that indirect discrimination occurs when an apparently neutral provision, criterion or practice (PCP) puts people of a racial or ethnic origin at a particular disadvantage compared with others, unless that PCP can be objectively justified.
Decision of CJEU
The Court held that the principle of equal treatment set out in the directive applies not only to a particular category of person but also benefits anyone who, although not themselves a member of the ethnic group concerned, suffers less favourable treatment or a particular disadvantage on that basis. Although Ms Nikolova was not of Roma origin herself, she had still suffered less favourable treatment or a particular disadvantage because of the ethnic origin of most of the other inhabitants of the district in which she carried on her business. On that basis, the CJEU concluded that Articles 1 and 2 of the directive must be interpreted as applying to her case.
Whether it constituted direct discrimination was a matter for the Bulgarian court that referred the matter to the CJEU. If it found that it was not direct discrimination, it could still find that it amounted to indirect discrimination under Article 2(2)(b), unless the company could justify its action.
This decision makes clear that the Racial Equality Directive is intended to benefit people who, although themselves not a member of the race or ethnic origin concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of the prohibited grounds.