Indirect Discrimination – The Bulgarian Extension

21 Aug 2015

Anelia Nikolova runs a grocery shop in the Gizdova Mahala district of Dupnitsa in Bulgaria.  Most of the population of the district are Roma though Anelia proudly asserts her Bulgarian ethnicity.

Cez Razpredelenie Bulgaria AD supplies electricity. Its terms say electricity meters shall be sited so customers may visually check their readings. Meters may be located elsewhere in special circumstances provided customers are given the means to check their meters on 3 days notice.

Cez installed meters in Gizdova Mahala……on concrete pylons at a height of 6 – 7 metres. Elsewhere it installed meters at a height of 1.7 metres. Cez said its practice was justified because of the widespread tampering which goes on in Roma districts. Ms Nikolova complained she was unable to check her meter, her bills were excessive and she suspected she was overcharged to offset Cez's losses in the district. KZD (the Bulgarian equivalent of our Equality Commission) decided the location of the meters was indirect discrimination because it had a disproportionately adverse effect on the local Roma population.

The Bulgarian Supreme Administrative Court overruled the KZD because Ms Nikolova was not part of the disadvantaged ethnic group but referred the matter to the CJEU.

As you'd expect the CJEU embarked on an exploration of lofty ideals and high treaty principles. It had no doubt the Roma are a distinct ethnic group and those living in Gizdova Mahala are a compact group of Bulgarian citizens of Roma origin. With the bit firmly between its teeth the Court rattled through the Equal Treatment Directive and the Charter of Fundamental Rights; pausing briefly to acknowledge a need to ensure the development of democratic and tolerant societies which allow the participation of all persons irrespective of their origin, and that electricity meters must observe the principle of equal treatment.

In a judgement which has echoes of Lord Denning (though lacking some of the lyricism of the great man at his best) the Court said the principle of equal treatment:

"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". 

So Ms Nikolova won. The position of her meter was stigmatising and we're given the proposition that one doesn't necessarily need a protected characteristic to establish discrimination. 

So what? Isn't this just indirect discrimination by association? Yes it is but it increases the pool of potential claimants and blurs the distinction between direct and indirect discrimination. It'll have significant repercussions in the fields of sex and race discrimination.