In CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia C-83/14, the ECJ had to consider whether an individual could claim indirect race discrimination on the basis of association with a group that was disadvantaged by a provision, criterion or practice, even if she was not of the same ethnic or racial group.
CRB supplied electricity to a district in Bulgaria whose population was predominantly of Roma origin. In that district CRB fixed electricity meters on concrete pylons at a height of six to seven metres. In other areas, the meters were fixed at about 1.7 metres off the ground, usually in the consumer's property, on the façade or on the wall around the property, which allowed customers to check their usage. CRB explained that the reason for the difference was that there had been a number of cases of tampering with meters and unlawfully connecting to the electricity network in the district.
Ms Nikolova ran a grocer's shop in the district and complained to the Bulgarian Commission for Protection against Discrimination (KZD) that she had been discriminated against on the grounds of her nationality by the siting of the meters, as she could not read her meter and assess how much electricity she was using. She alleged that her bills were excessive compared with her actual consumption and she suspected that CRB applied an excessively high consumption value to compensate for losses suffered elsewhere in the district. She argued that Roma people were disproportionately affected by the policy and, although she was not Roma herself, she identified with the Roma in the area where her shop was based.
The KZD held that, due to the location of her business, she had been treated less favourably by CRB than other customers whose meters had been installed at an accessible height and it was unlikely that the practice could be objectively justified. CRB appealed to the Administrative Court in Sofia, which referred several questions to the European Court of Justice (ECJ), asking whether CRB's practice constituted discrimination against Ms Nikolova on ethnic grounds for the purposes of the EU Race Directive (the Directive).
Advocate General's opinion
The Advocate General, who assists the ECJ and gives an opinion on the case before the judges reach a decision, decided that Ms Nikolova was protected by the Directive as a person to whom a public service was supplied. She considered that the action taken by CRB also affected other people who did not possess the protected characteristic and it would be fair to recognise the concept of associative indirect discrimination. Therefore Ms Nikolova's claim should succeed, even though she was not of Roma ethnicity.
The ECJ broadly agreed with the Advocate General and referred to the "offensive and stigmatising" nature of CRB's practice. In a particularly opaque judgment it accepted that, although Ms Nikolova was not of Roma origin, it was Roma origin that constituted the factor on the basis of which she considered that she had suffered less favourable treatment or a particular disadvantage. The Directive therefore had to be interpreted as applying to the CRB's policy in this case. It was for the Bulgarian court to decide whether the practice could be objectively justified, having regard to whether:
- The measure did not go beyond what was appropriate and necessary to achieve its legitimate aims; and
- The disadvantages caused were not disproportionate to the objectives pursued. That would not be the case if the Bulgarian court found either that other less restrictive means could be adopted to achieve the same aims or that the measure excessively prejudiced the legitimate interests of electricity consumers living in the district concerned.
It is well established that direct discrimination by association is prohibited by EU law but this is the first time the ECJ has looked at whether indirect discrimination by association is also covered. Although the case involved discrimination in the provision of services rather than in employment, the concepts are still relevant in an employment context.
This decision has potentially significant implications for UK law, as the Equality Act as drafted is incompatible with the Directive and will have to be amended to cover associative indirect discrimination.