"CHEZ Razpredelenie Bulgaria" AD v Komisia za zashtita ot diskriminatsia.

• Jurisdiction: European Union
• Celex Number: 62014CJ0083
• ECLI: ECLI:EU:C:2015:480
• Docket Number: C-83/14
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 16 July 2015

JUDGMENT OF THE COURT (Grand Chamber)

16 July 2015 ( *1 )

‛Directive 2000/43/EC — Principle of equal treatment between persons irrespective of racial or ethnic origin — Urban districts lived in mainly by persons of Roma origin — Placing of electricity meters on pylons forming part of the overhead electricity supply network, at a height of between six and seven metres — Concepts of ‘direct discrimination’ and ‘indirect discrimination’ — Burden of proof — Possible justification — Prevention of tampering with electricity meters and of unlawful connections — Proportionality — Widespread nature of the measure — Offensive and stigmatising effect of the measure — Directives 2006/32/EC and 2009/72/EC — Inability of final consumers to monitor their electricity consumption’

In Case C‑83/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Administrativen sad Sofia-grad (Bulgaria), made by decision of 5 February 2014, received at the Court on 17 February 2014, in the proceedings

CHEZ Razpredelenie Bulgaria AD

v

Komisia za zashtita ot diskriminatsia,

third parties:

Anelia Nikolova,

Darzhavna Komisia za energiyno i vodno regulirane,

THE COURT (Grand Chamber),

composed of K. Lenaerts, Vice-President, acting as President, A. Tizzano, R. Silva de Lapuerta, M. Ilešič, S. Rodin and K. Jürimäe, Presidents of Chambers, A. Rosas, E. Juhász, J. Malenovský, D. Šváby, A. Prechal (Rapporteur), F. Biltgen and C. Lycourgos, Judges,

Advocate General: J. Kokott,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 13 January 2015,

after considering the observations submitted on behalf of:

— CHEZ Razpredelenie Bulgaria AD, by A. Ganev, V. Bozhilov and A. Dzhingov, lawyers,

— Komisia za zashtita ot diskriminatsia, by A. Strashimirova, acting as Agent,

— Ms Nikolova, by S. Cox, Barrister, and M. Ferschtman and Y. Grozev, lawyers,

— the Bulgarian Government, by E. Petranova and D. Drambozova, acting as Agents,

— the European Commission, by D. Martin and D. Roussanov, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 12 March 2015,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 1 and Article 2(1) and (2)(a) and (b) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22) and of Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in proceedings by which CHEZ Razpredelenie Bulgaria AD (‘CHEZ RB’) seeks the annulment of a decision of the Komisia za zashtita ot dikriminatsia (Commission for Protection against Discrimination; ‘the KZD’) by which it ordered CHEZ RB to bring discrimination against Ms Nikolova to an end and to refrain from discriminatory behaviour of that type in the future.

Legal context

EU law

Directive 2000/43

3 Recitals 2, 3, 9, 12, 13, 15, 16 and 28 in the preamble to Directive 2000/43 state: ‘(2) In accordance with Article 6 of the Treaty on European Union, the European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States, and should respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950], and as they result from the constitutional traditions common to the Member States, as general principles of Community law. (3) The right to equality before the law and protection against discrimination for all persons constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of all Forms of Discrimination Against Women, the International Convention on the Elimination of all Forms of Racial Discrimination and the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories. … (9) Discrimination based on racial or ethnic origin may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and of social protection, the raising of the standard of living and quality of life, economic and social cohesion and solidarity. It may also undermine the objective of developing the European Union as an area of freedom, security and justice. … (12) To ensure the development of democratic and tolerant societies which allow the participation of all persons irrespective of racial or ethnic origin, specific action in the field of discrimination based on racial or ethnic origin should go beyond access to employed and self-employed activities and cover areas such as education, social protection including social security and healthcare, social advantages and access to and supply of goods and services. (13) To this end, any direct or indirect discrimination based on racial or ethnic origin as regards the areas covered by this Directive should be prohibited throughout the Community. ... … (15) The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice. Such rules may provide in particular for indirect discrimination to be established by any means including on the basis of statistical evidence. (16) It is important to protect all natural persons against discrimination on grounds of racial or ethnic origin. Member States should also provide, where appropriate and in accordance with their national traditions and practice, protection for legal persons where they suffer discrimination on grounds of the racial or ethnic origin of their members. … (28) … the objective of this Directive, namely ensuring a common high level of protection against discrimination in all the Member States, cannot be sufficiently achieved by the Member States ...’

4 As provided in Article 1 of Directive 2000/43, ‘[t]he purpose of this Directive is to lay 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’.

5 Article 2 of Directive 2000/43, headed ‘Concept of discrimination’, provides: ‘1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin. 2. For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. 3. Harassment shall be deemed to be discrimination within the meaning of paragraph 1, when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. ... ...’

6 Article 3 of Directive 2000/43, headed ‘Scope’, states in paragraph 1(h): ‘Within the limits of the powers conferred upon the Community, this Directive shall apply to all persons … in relation to: ... (h) access to and supply of goods and services which are available to the public, including housing.’

7 Article 6 of Directive 2000/43, headed ‘Minimum requirements’, provides in paragraph 1: ‘Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive.’

8 Article 8 of Directive 2000/43, headed ‘Burden of proof’, provides in paragraph 1: ‘Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.’

Directive 2006/32/EC

9 Recital 29 in the preamble to Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on energy end-use efficiency and energy services and repealing Council Directive 93/76/EEC (OJ 2006 L 114, p. 64) stated: ‘In order to enable final consumers to make better-informed decisions as regards their individual energy consumption, they should be provided with a reasonable amount of information thereon and with other relevant information ... In addition, consumers should be actively...