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THE BURDEN OF PROOF IN EUROPEAN ANTIǧDISCRIMINATION LAW
expansion exceeds the narrow framework of the relationship between two private
parties (albeit in a different economic status, and so the burden-of-proof rule applies
in the broader context of a social policy towards the entire population.
5. Some critical considerations
The quick transformation of the reversal of the burden of proof from an exceptional
instrument designed only for special cases into the standard tool of European anti-
discrimination law which applies in all cases of alleged discrimination may raise
substantial doubts. Certain problems are linked to the principle of fair trial. Given that
restrictions in the context of fair proceedings as referred to in Article 6 of the ECHR
have to be proportionate with regard to the objective pursued, the automatism that
is applied with respect to the reversal of the burden of proof does not offer sufficient
space for the consideration of relevant circumstances. It is an interesting paradox that
the application of the principles of non-discrimination law, which is as such based
on the idea of individual assessment of all cases, regardless of general criteria, such as
gender, ethnicity, age, sexual orientation or religion, results in a large-scale advantage
for those groups which have a concrete position in business life. This means that,
regardless of specific factors such as e.g. who has real power on the labour market,
it is not the individual approach, but membership in a social group that will be the
decisive criteria. It is certainly not in line with economic reality that all employers,
irrespective of the number of their employees, of their market position, turnover and
the internal structure of the enterprise, are constructed as a single homogenous group
for the purpose of applying the reversal of the burden of proof. In practice, the actual
position of individual employers and service providers may vary significantly.
The extent to which current legal literature accepts the reversal of the burden of
proof as a rational and established tool of European anti-discrimination law that does
not need to be reflected closer is striking. That the ECJ in its first landmark judgment
of 1989 did not rule in favour of an automatic reversal of the burden of proof in anti-
discrimination cases is neglected.
With regard to the principle of fair trial and the reversal of the burden of proof,
it appears to be instructive and inspiring to study a judgment of 1979 in which the
German Constitutional Court addressed this issue in the context of medical law.
31
In his constitutional complaint a former patient claimed that the lower courts had
violated certain aspects of due process (within the meaning of Article 103 German
Constitution) when they did not recognize the reversal of the burden of proof to the
detriment of the defendant hospital. The Constitutional Court stated that the fair
treatment of rules of evidence and the burden of proof are part of the principle of
due process. As far as the responsibility of a medical doctor for error in treatment is
concerned, the Constitutional Court recognized that the patient in such proceedings
usually and typically faces the problem of evidence. Therefore, the Court recalled
the need to strive for a fair balance by applying the reversal of the burden of proof
31
Decision of 25 July 1979 (2 BvR 878/74).