Sensitive or controversial issues

AuthorKrstic, Ivana
11.1 Potential breaches of the directives at the national leve l
In Serbia, national legislation is mainly in accordance with th e two EU anti-discrimination
directives from 2000. However, there are some inconsistencies and ambiguities that
require further judicial interpretation or changes to the existing legislation.
a) The definition of discrimination
The definition of indirect discrimination does not include th e conditional wording ‘would’
and can thus be interpreted as being limited to the actual occurrence of disadvantage,
making it impossible to challenge apparent ly neutral provisions before they incur
disadvantages for actual victims (contrary to Article 2(2) (b) of Directive 2000/43 and
Article 2(2)(b) of Directive 2000/78).
Furthermore, instruction to discriminate is not recognised as discrimination in the LPD
and the liability for instruction is not clearly regulated (contrary to Article 2(4) of Directive
2000/43 and Article 2(4) of Directive 2000/78).
b) Proving discrimination
The LPDPD does not contain a provision f or reversal of the burden of proof, although the
LPD, as a systemic law, does include this concept in Article 45(2) (contrary to Article 10(1)
of Directive 2000/78).
c) Material scope
The LPD does not cover occupational pensions, social advantages and self -employment,
and it is unclear whether it covers s ocial protection and housing (contrary to Article 3 o f
Directive 2000/43 and Article 3 of Directive 2000/78). Although certain other laws regulate
some issues such as self-employment, social protection and housing , these areas should
be expressly included in the LPD, as in practice it can be interpreted that anti-discrimination
legislation does not apply in such cases.
The LPD mentions only access to services and does not expressly mention access to goods
(contrary to Article 3(1)(h) of Directive 2000/43).
The duty of reasonable accommodat ion exists i n relation to the p rovision of servi ces and
the u se of facilities, as well as employment. However, according to Article 22(4) of the
LPDPD, which prescribes a duty of rea sonable accommodation in the workforce, it can be
invoked only in the case of a refu sal to carry out a technical adaptation of the w orkplace
that enables efficient work by people with disabilities, and it cannot take other forms, such
as reassigning tasks, moving people to another function, etc., which contradicts Article 5
of Directive 2000/78/EC. In addition, the employer can be exempted from this obligat ion
if the costs of the adaptation are disproportionate to the profit of the employer who is
employing a person with a disability. In other words, the disproportionality of the burden
is assessed only in financial terms. Furthermore, there is an individual relationship between
the profit gained from employing the person with a disability and the cost of the
accommodation for that person. This provision is not clear, and it can be argued that it
seems to imply that the employ er still has to gain some profit f rom employing the person
with a disability. The same applies to Article 13(5)(3) of the LPDPD, which prescribes a
duty of reasonable accommodation in the provision of services. Therefore, further judicial
interpretation is required in order to clarify this matter.

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