Opinion of Advocate General Ćapeta delivered on 1 August 2025.

• Jurisdiction: European Union
• Celex Number: 62023CC0799
• ECLI: ECLI:EU:C:2025:621
• Date: 01 August 2025
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 1 August 2025 (1)

Case C‑799/23

European Commission

v

Slovak Republic

( Failure of a Member State to fulfil obligations – Social policy – Directive 2000/43/EC – Equal treatment between persons irrespective of racial or ethnic origin – Indirect discrimination against Roma children in the area of education )

I. Introduction

1. By the present action under Article 258 TFEU, the European Commission requests the Court of Justice to find that the Slovak Republic has failed to fulfil its obligations under Directive 2000/43 (2) by discriminating against Roma children in the area of education.

2. More precisely, the Commission claims, by its first plea, that Roma children are being placed in special schools or special classes for children with intellectual or other disabilities in significantly larger numbers than other children. By its second plea, it alleges that Roma children are being segregated from other children in primary education in regular schools, by being placed in Roma-only schools, in separate classes or on separate floors, or by being separated in school canteens.

3. That adverse treatment of Roma children is, according to the Commission, the result of practices which have existed for a long time and which the Slovak Republic has failed to eliminate. Those practices are widespread, in the sense that they give rise to discrimination against Roma children in the education system throughout the country.

4. While not disputing the existence of that discrimination, the Slovak Republic submits that it is the result of structural issues caused by the entrenched discrimination against Roma in Slovak society, which cannot be addressed quickly. That Member State, however, claims to have demonstrated that it has taken a number of measures intended to deal with the issue.

5. The present case, which is the first infringement action arising from structural inequality entrenched in a society, raises the novel question for the Court as to how it should deal with this type of action. The Commission is not criticising the Slovak Republic for the existence of concrete legislative or other measures that are discriminatory or that result in discrimination, but rather for the continued existence of discrimination within Slovak society.

6. It is therefore necessary, to my mind, to ask whether the Slovak Republic has an obligation of result, requiring it to eliminate discrimination on ethnic grounds in the area of education, or an obligation of conduct, requiring it simply to make its best efforts to eliminate such discrimination. The type of evidence relevant for the Court in deciding this case will depend on whether the obligation imposed by Directive 2000/43 is an obligation of result or one of conduct.

II. The pre-litigation procedure and the procedure before the Court

7. Following enquiries in the form of an EU Pilot procedure, the Commission sent the Slovak Republic a letter of formal notice on 30 April 2015.

8. In that letter, the Commission claimed that there was convincing evidence that Roma children were subject to significant discrimination in the area of education in the Slovak Republic. The Commission alleged in particular that a disproportionate number of Roma children were placed in special schools or in classes for children with intellectual or other disabilities, as well as that Roma children were marginalised in other ways in regular schools through segregation, by placing them either in separate classes or in separate schools. That discrimination was the result, in the Commission’s view, of inadequate legislative measures transposing Directive 2000/43, of inadequate implementation of the existing measures and of flawed administrative and social practices.

9. On 16 August 2015, the Slovak Republic replied to the letter of formal notice, indicating that it had made legislative changes. For example, it had included a definition of segregation in the relevant legislation and had introduced an explicit obligation to place children from socially disadvantaged backgrounds with other children to avoid segregation. It had also introduced a legal mechanism enabling a review of the diagnostic procedures that were contributing to the disproportionate number of Roma children in special schools. Furthermore, that Member State refuted the argument that the existing legislation had not been correctly applied, and stated that it was continuing to gradually implement several additional measures in order to remedy the problems raised in the letter of formal notice.

10. Between December 2015 and December 2017, there were requests for additional information and a meeting was held between the Commission and representatives of the Slovak Republic.

11. On 11 October 2019, the Commission sent a reasoned opinion to the Slovak Republic, observing that, although recent changes to the relevant legislation certainly represented a significant improvement, there was still evidence of persistent discriminatory practices identical to those previously identified.

12. Accordingly, the Commission withdrew its allegation concerning the inadequate legislative transposition of Directive 2000/43. However, it considered that data still indicated that the Slovak Republic had not effectively addressed discrimination against Roma children in the education system, as Roma children continued to be disproportionately represented in special schools and special classes. That was largely the result, according to the Commission, of an inadequate diagnostic methodology and difficulties in reviewing diagnoses once made. It also maintained the allegation relating to the segregation of Roma children in regular schools. Although there were multiple causes, there was no justification for persisting segregation.

13. In the reasoned opinion, the Commission set a deadline of 11 December 2019, by which time the Slovak Republic was to have put an end to the alleged infringements.

14. On 6 December 2019, the Slovak Republic responded to that reasoned opinion.

15. In that response, the Slovak Republic asserted that the statistical data concerning Roma provided by the Commission were unreliable, in particular because of the difficulties associated with collecting such data on ethnicity. It then listed the legislative and non-legislative measures recently adopted to combat discrimination against Roma children in the school system and the specific projects proposed in that area. Finally, the Slovak Republic assured the Commission that it would endeavour to put in place the concrete legislative measures set out in its response to the Commission’s reasoned opinion as soon as possible, and undertook to implement other related short- and long-term measures in a gradual and continuous manner.

16. Following that response, there was further contact between the Commission and the Slovak Republic from 2020 to 2022, most notably in September 2022, when Ms Helena Dalli, the European Commissioner for Equality, visited schools in eastern Slovakia and met with representatives of the Slovak Republic, including Prime Minister Eduard Heger.

17. On 22 December 2023, the Commission brought the present action before the Court pursuant to Article 258 TFEU.

18. The Slovak Republic lodged its defence on 26 March 2024.

19. The Commission lodged a reply on 7 May 2024 and the Slovak Republic lodged a rejoinder on 17 June 2024.

20. A hearing was held on 8 April 2025, at which the Commission and the Slovak Republic presented oral argument.

III. Analysis

21. By the present action, the Commission asks the Court to declare that the Slovak Republic has systematically and persistently failed to fulfil its obligations under Article 2(1) of Directive 2000/43, read in conjunction with Article 2(2)(b) and Article 3(1)(g) thereof:

– by placing a disproportionate number of Roma children in special schools, or special classes for children with intellectual or other disabilities, in which the education follows a simplified curriculum; and

– by segregating Roma children in separate classes in regular schools or in separate schools.

22. In proceedings alleging failure to fulfil obligations under Article 258 TFEU, the Commission must prove its allegations that an obligation has not been fulfilled. (3)

23. I am of the view that, before assessing the arguments brought before it, the Court must address the question of the type of evidence that the Commission should submit in support of its pleas in a case of this nature.

24. That, in my view, depends on whether the obligation arising under Article 2(1) of Directive 2000/43, read in conjunction with Article 2(2) thereof, is an obligation of result or an obligation of conduct.

25. I will therefore proceed as follows.

26. Under (A), I will set out the differences arising from a finding that there is an obligation of result compared with a finding of an obligation of conduct.

27. Under (B), I will propose that the Court construe Article 2(1) of Directive 2000/43, read in conjunction with Article 1 and Article 2(2) thereof, as imposing on Member States an obligation of result. That would require the Commission to demonstrate that the desired result – the absence of discrimination in education – has not been achieved in the Member State in question.

28. In that respect, as I will propose under (C), statistical or other data proving the existence of the alleged discrimination are an appropriate means of demonstrating the existence of the failure to fulfil obligations claimed by the Commission. By contrast, other evidence, relating to the measures taken to combat discrimination and their efficiency or inefficiency, is irrelevant to proving or disproving a failure to fulfil the obligation of result.

29. Under (D), I will argue that the Commission has sufficiently demonstrated the existence of discrimination against Roma children in relation to both its pleas. The...