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HARALD CHRISTIAN SCHEU
CYIL 4 ȍ2013Ȏ
1. Introduction
Among legal scholars there is large agreement that one of themainpractical problems
of anti-discrimination law is the evidence of discrimination.
2
One of Germany’s leading
experts on discrimination in employment law, Karl Riesenhuber, calls the burden of
proof the “Achilles heel” of the system of protection.
3
In his commentary to § 133a
of the Czech Code of Civil Procedure, Zdeněk Kühn explains that perpetrators of
discrimination usually are not open enough to talk about discrimination directly.
According to Kühn, discrimination can be clearly demonstrated only in cases in which
the discriminatory intent was expressly manifested outwardly. However, if the subject of
the discriminatory conduct does not speak openly of its intention to discriminate and
claims that there was no discriminatory intent, the potential victim of discrimination
will be in a very difficult evidentiary situation before the court.
4
In response to this practical problem that severely undermines the effectiveness
of anti-discrimination law, rules concerning the shift of the burden of proof have
been introduced. Following the pattern of discrimination law applied in the United
States, the shift of the burden of proof was first reflected in the jurisprudence of
the Court of Justice of the European Union (ECJ) and later implemented into EU
anti-discrimination legislation. At present, the concept of reversal of evidence is
contained in a number of EU directives. For example, according to Article 8 of
Directive 2000/43, implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin, a person who considers himself a victim of
discrimination, shall establish, before a court or other competent authority, facts
from which it may be presumed that there has been direct or indirect discrimination.
Thereupon, it shall be for the respondent to prove that there has been no breach of
the principle of equal treatment. The same rule is included in Article 10 of Directive
2000/78/EC of 27 November 2000, establishing a general framework for equal
treatment in employment and occupation.
The aim of this article is to briefly outline the development leading to the
enactment of the burden-of-proof rule in European anti-discrimination law and
debate some problematic aspects of this rule. By analysing the current legal regulations
we want to highlight the counterproductive effects of an activist approach towards
the principle of equality.
2
Althoff, Nina:
Die Bekämpfung von Diskriminierungen aus Gründen der Rasse und der ethnischen
Herkunft in der Europäischen Gemeinschaft ausgehend von Art. 13 EG
[The fight against discrimination
on grounds of race and ethnic origin in the European Community on the basis of Article 13 EC],
Frankfurt am Main: Peter Lang, 2006, p. 255.
3
Riesenhuber, Karl: Diskriminierungsverbote im Privatrecht. Europarechtliche Grundlagen, [Prohibitions
on discrimination in private law, European legal bases] In: Riesenhuber, Karl (ed.),
Das Allgemeine
Gleichbehandlungsgesetz – Grundsatz- und Praxisfragen
[Universal equal treatment law – questions
related to principle and pratice], Berlin, 2007, pp. 3-36; p. 18.
4
Boučková/ Havelková/ Koldínská/ Kühn/ Kühnová/ Whelanová:
Antidiskriminační zákon
. Komentář
[Antidiscrimination law. Commentary.], Praha: C.H. Beck, 2010, pp. 338-339.