EQUINET LEGAL SEMINAR DISCRIMINATION CASES IN FRONT OF THE EUROPEAN COURT S AND THE ROLE OF

NATIONAL EQUALITY BODIES

Wednesday 28 March 2012, Brussels

THE BELOV CASE IN FRONT OF ECJ

C -394/11

21.04.23 1presented by Esen Fikri, CPD,

Bulgaria

І. THE DISPUTE AND MAIN FACTS IN THE NATIONAL PROCEEDING

CPD `s case 290 / 2009

1.Complainant:

Mr. BELOV - Roma man, lives in and uses electricity in Montana city quarter Ogosta known as a Roma neighbourhood.

The electricity measurement devices in Roma neighbourhoods in Montana are placed at height of 7 meters

no possibility to check their own meter readings

no possibility to plan their individual energy consumption

The electricity measurement devices in all other quarters of Montana are placed at height of 1.4 -1.6 meter

consumers from non Roma quarters can regularly check their own meter readings and plan their consumption

21.04.23 2presented by Esen Fikri, CPD,

Bulgaria

І. THE DISPUTE AND MAIN FACTS IN THE NATIONAL PROCEEDING

Collective petition of Roma people to the electricity company prior bringing the case to CPD – breach of equality provisions laid down in general conditions of electricity supply agreement:

Request to replace the electricity measurement devices in Roma quarters to normal height (like in all other quarters) in order to enable checking their readings and consumption planning

no reaction of the electricity company

Mr. Belov asks CPD to recognize that the height of measurement devices constitutes discrimination on the ground of ethnicity in breach of national equality law – the Protection against Discrimination Act

2. Defendants - 2 electricity companies co-owned by private undertaking and the state:

- electricity sellers company (responsible for electricity supply)

- electricity transmission company (responsible for electricity transmission and distribution)

21.04.23 3presented by Esen Fikri, CPD,

Bulgaria

І. THE DISPUTE AND MAIN FACTS IN THE NATIONAL PROCEEDING

2.1. The electricity sellers company - supplies electricity without discrimination; no responsibility because the measurement devices are owned by the electricity transmission company which decides where to put them.

2.2. The electricity transmission company alleges that such situation is not discrimination according to the Supreme administrative court`s judgment in similar case:

- The company does not collect data on ethnicity of consumers

- The company is entitled to a wide deliberation where to put the measurement devices - in two quarters ( incl. complainant's quarter) they are placed at a height of 7 meters, in all other quarters - at a height of 1.4 – 1.6 meters

- The most of devices in complainant's quarter are placed at a height of 7 meters - no differences compared to the majority of consumers from the same quarter;

- There are no provisions establishing the consumer's right to check readings

- There are other ways to check meter readings - upon request of consumer

- The larger height is justified to protect electricity network against violations and to limit and prevent thefts of electricity, illegal connection to the Electricity Distribution Network and to guarantee citizens’ safety, life, health and properly functioning of the network.

21.04.23 4presented by Esen Fikri, CPD,

Bulgaria

І. THE DISPUTE AND MAIN FACTS IN THE NATIONAL PROCEEDING

3. Third party – Energy and water regulatory authority ( State commission )

-approves general conditions of electricity transmission and distribution agreements

-approves prices and investment costs of electricity companies

4. Main findings of CPD

- Until 1997 -1998 no differences in place and height where measurement devices are installed: various places ( inside the houses, at the building facades, street poles) and normal height of 1.40 -1.60 meter allowing all consumers to see measuring data

- In 1999 the former state electricity company has moved the devices in some quarters all over the country outside the houses - on street poles at unapproachable height ( due to unpaid bills, higher level of electricity thefts and illegal connections to the network) without consideration of individual delinquency or propriety general sanction of collective nature

- Such initiative affected 2 quarters of Montana city – Ogosta and Kosharnik, where the unapproachable height of 7 meters is a rule and the normal height of 1.40 -1.60 meter is an exception to the rule.

- In all other quarters of Montana city - devices are at the normal height of 1.40 -1.60; no exceptions

21.04.23 5presented by Esen Fikri, CPD,

Bulgaria

І. THE DISPUTE AND MAIN FACTS IN THE NATIONAL PROCEEDING

The rule in affected quarters of Montana: Ogosta and Kosharnik

The rule in all other quarters of Montana and some exceptions in 2 affected quarters

21.04.23presented by Esen Fikri, CPD,

Bulgaria 6

І. THE DISPUTE AND MAIN FACTS IN THE NATIONAL PROCEEDING

- No direct evidence on the ethnic composition of population in the affected 2 quarters which are well known in society as Roma neighbourhoods;

- No doubts 2 quarters in question are inhabited mostly (but not only) with Roma – it's mentioned in the official minority integration strategy of Montana municipality;

- Regulatory authority allows electricity company to place measurement devices at unapproachable height for security reasons

- There are 2 other ways for consumer to check devices value, but they are not equivalent:

a) to pay for installing additional device inside his property or

b) to ask in written the company to send specialized technical equipment (special car) to reach poles top – there are special training requirements to use such equipment

- The complainant pays his bills and no evidences for infringements like thefts or illegal access to electricity network

- No evidences that the unapproachable height is the only possible way to secure network functioning and prevent thefts or illegal access;

- No evidences on suitability in achieving the aim - on the contrary defendant says that the measure is not fully effective.

21.04.23 7presented by Esen Fikri, CPD,

Bulgaria

II. WHY AND HOW DID CPD DECIDE TO REFER THE CASE TO ECJ?

1. PREVIOUS SIMILAR CASE

- against the same electricity company (name and shareholders changed after company’s privatization)

- same situation in other city, in a Roma quarter again

- CPD considered that situation constitutes indirect discrimination on the ground of ethnicity and imposed sanctions - fines and compulsory administrative measures to replace devices at height of 1.40 - 1.60 meters, allowing visual control over their readings.

- The electricity company has appealed against CPD`s decision in front of the Supreme administrative court (SAC)

- SAC repealed CPD’s decision - no discrimination and no evidences

- SAC`s judgment is legally binding for CPD and for the electricity company

- Principle of equality before the law requires all similar cases to be considered in a similar way, but CPD has doubts on conformity of SAC`s interpretations to the provisions of Directive 2000/43 – definitions, burden of proof, justification

Reference for a preliminary ruling to ECJ - how to interpret the provisions of Directive 2000/43 and do they preclude such national case-law?

21.04.23 8presented by Esen Fikri, CPD,

Bulgaria

II. WHY AND HOW DID CPD DECIDE TO REFER THE CASE TO ECJ?

2. SAC`s judgment - no discrimination

2.1. To qualify a situation as discrimination, it has to involve an infringement of rights or interests explicitly defined in law

a) The company has wide deliberation where to put measurement devices incl. to place them at unapproachable height (general conditions of electricity transmission and distribution agreement approved by the state regulatory authority)

b) No right of consumers in the law to check their devices readings

SAC: No right – no breach of rights - no more unfavourable treatment - no discrimination

Questions 1-4: Do the provisions of Directive preclude such interpretation of discrimination concepts or not ?

If they preclude - is CPD obliged not to apply national rules ( law and case-law) and instead them to refer to the directive's definitions

If they not preclude – do the provisions of art.38 CFR, Directive 2006/32/EC (Recital 29, Article 1 and Article 13(1)), Directive 2003/54/EC (Article 3(5)) and Directive 2009/72/EC (Article 3(7)) define a right or interest entitling consumer to check meter readings regularly and capable of being relied on before the national courts in proceedings such as the main proceeding?

21.04.23 9presented by Esen Fikri, CPD,

Bulgaria

II. WHY AND HOW DID CPD DECIDE TO REFER THE CASE TO ECJ?

2. SAC`s judgment - no discrimination

2.2. the facts do not prove indirect discrimination - do not allow a conclusion that indirect discrimination has occurred

a) inhabitants of 2 quarters are not only Roma – there are people from other ethnic groups and a situation in question may affect them as well

b) no special intension against Roma people

c) no link with ethnic origin - the company undertook the measures in question due to the higher level of unpaid bills, thefts and infringements

Insufficient clarity of rules on burden of proof and on differences between direct and indirect discrimination

Bulgarian version of Directive 2000/43, art. 8 (1) – conclusion (presumption is not enough), still courts require the victim to establish facts which impose certain conclusion that discrimination has occurred

Questions 5-6 to ECJ: How are burden of proof provisions to be interpreted?

What forms of discrimination can be presumed from facts established in the main proceeding ?

21.04.23 10presented by Esen Fikri, CPD,

Bulgaria

II. WHY AND HOW DID CPD DECIDE TO REFER THE CASE TO ECJ?

2. SAC`s judgment - no discrimination

2.3. the company's practice in those two quarters is objectively justified

a) by a legitimate aim – safety, quality and secure operation of electricity network

b) the means are appropriate and necessary

According to CPD`s previous decision (overruled by SAC) such means do not meet the proportionality test – no proofs that they are the only possible way to protect the network; applied as a collective sanction; there are other legal and technical means

Question 6: Is the measure justifiable according to the facts established in the main proceeding?

21.04.23 11presented by Esen Fikri, CPD,

Bulgaria

III. CHALLENGES

1. Preparing the decision on reference for a preliminary ruling - takes time and considerable efforts

2. Is the CPD a tribunal in the meaning of art. 267 of the Treaty on the functioning of the EU (TFEU)

- the tribunal position of CPD: argued according to the criteria on tribunal elaborated in case –law of ECJ

- In additional we pointed out the classification of equality bodies done in the Study on Equality bodies set up under Directives 2000/43/EC, 2004/113/EC, 2006/54 where the CPD is amongst tribunal type equality bodies

3. Crucial need of ECJ`s interpretation

-for deliberation in the main proceeding

-the reply of the ECJ will contribute to eliminate some significant practical challenges in the protection against discrimination proceedings, in relation with sharing and shifting the burden of proof and application of definitions of discrimination.

4. Current stage in ECJ – completed written stage, written opinions from EC, defendant and Bulgarian government

21.04.23 12presented by Esen Fikri, CPD,

Bulgaria

Thank you for your attention!

Commission for protection against discrimination

kzd@kzd.bg http://www.kzd-nondiscrimination.com

Esen Fikri, Commissioner within CPD

esen_fikri@abv.bg e.fikri@kzd.bg

21.04.23 13presented by Esen Fikri, CPD,

Bulgaria