145 / 350
THE BURDEN OF PROOF IN EUROPEAN ANTIǧDISCRIMINATION LAW
ECJ expanded the burden-of-proof rule to all cases in which employees “who appear
to be victims of discrimination” are deprived of effective means to promote equality.
10
A few years later, the EU Council adopted Directive 97/80/EC on the burden of
proof in cases of discrimination based on sex, which deleted any relativisation contained
in ECJ case-law. Article 4, paragraph 1 of the Directive provides that when a person
considers itself wronged because the principle of equal treatment has not been applied
to it, and he establishes facts before a judicial authority 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.
In the context of this legislative action a tool that was originally designed for
only special cases became the standard instrument to deal with the issue of burden of
proof in cases of alleged discrimination. It may be added that the tool is not restricted to
cases of sex discrimination but applies in all sectors of EU anti-discrimination law. We
can find the burden-of-proof rule also in a fundamental proposal which was presented
by the European Commission in 2008, i.e. the Proposal for a Council Directive on
implementing the principle of equal treatment between persons irrespective of religion
or belief, disability, age or sexual orientation.
11
In its Explanatory Memorandum the
European Commission explicitly maintains that the shift of burden of proof applies to
all cases alleging breach of the principle of equal treatment.
Already in 1996, when the European Commission presented its Proposal for
a Council Directive on the burden of proof in cases of discrimination based on
sex,
12
the justification for the reversal of the burden of proof was rather terse.
Without deeper reflection the Commission merely noted that without reversal of
the burden of proof the plaintiff had no effective means of enforcing equality before
national courts. The Commission also referred to the previous judgments of the ECJ.
The Preamble to the quoted Directive indeed recalls that, according to the ECJ,
the rules regarding the burden of proof must change when there is a
prima facie
case of discrimination, and that it must revert to the defendant when evidence of
such discrimination is brought. Unlike the ECJ in the
Danfoss
case, the Directive,
however, does not take into account the individual circumstances of the case. From
the perspective of the European Commission, the burden of proof seems to be only
a technical issue related to statistics.
The Handbook on European non-discrimination law, which has been published
by the EU Agency for Fundamental Rights
13
in 2011 is more specific on this topic.
The authors of the Handbook assume that the motive behind differential treatment
often exists only in the mind of the perpetrator.
14
A manual issued by the German
10
ibid
.
11
COM(2008) 426 final (Brussels, 2 July 2008).
12
COM/96/0340 final.
13
The Agency was established by Council Regulation (EC) No 168/2007 of 15 February 2007.
14
Handbook on European non-discrimination law, EU Agency for Fundamental Rights, Luxembourg:
Publications Office of the European Union, 2011, p. 124.