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HARALD CHRISTIAN SCHEU
CYIL 4 ȍ2013Ȏ
in consideration of the circumstances and the nature of the case. According to the
Constitutional Court, a fair trial is to be ensured in the light of the principle of
proportionality. Dealing with the issue of equality of arms as part of the due process,
the Constitutional Court expressly stated that the use of the reversal of the burden of
proof must be examined on a case-by-case basis.
It has to be emphasized that this careful and balanced approach, which the
German Constitutional Court established for cases of damages in medical law, was
originally applied also in the frame of discrimination law. It is surprising how later
the reversal of the burden of proof transformed into an automatism without due
reflection of all aspects of a fair trial.
The negative impact of such excess is not only related to the possible violation of
the principle of fair trial. We are not afraid of a serious weakening of the position of
economically powerful actors, such as employers or service providers. Even in light of
the application of anti-discrimination law, the situation of discriminated employees
is not easy. In practice, most of them are certainly discouraged by the procedural risk,
the long duration of litigation, psychological stress during the process against the
employer, the large probability of job loss, and ultimately the vision of a relatively
insignificant amount of compensation. Criticism of the current regulation of the
burden of proof is not based on any naivety in this direction.
However, we consider that one of the major problems is a climate of mutual
distrust and hypocrisy that arises as a result of excessive rules concerning the reversal
of the burden of proof. The presumption of guilt is certainly in the interest of
specialized legal advisors who focus on formulating a job offer in such a way that
it does not contain
prima facie
evidence of discrimination. It is the task of the legal
adviser to ensure that employers use fair and neutral phrases when they select the
specific candidate they really want to employ.
The institutionalized mistrust which occurs on the battle field of anti-discrimination
law affects not only the relationship between the agencies representing potential victims
of discrimination against “smart” employers and service providers. The development
leading to the codification of the burden-of-proof rule in anti-discrimination
directives also appears to be a sign of mistrust of EU organs towards national courts
in the Member States. According to the first anti-discrimination directives which were
adopted in the 1970s,
32
it was for the Member States and for their judicial authorities
to ensure compliance of national legislation with the specific Directives. In 1989, the
ECJ suggested that, in line with the principle of effectiveness, the reversal of the burden
of proof shall be applied in special cases. At present, however, the EU legislator and
the ECJ apparently do not believe that national courts would apply rules of evidence
properly and in the spirit anti-discrimination law. So, when the reversal of the burden
of proof is to be applied as an automatism, the due margin of appreciation for
national courts is almost deleted.
32
See
e.g.
Directives 76/207/EEC and 75/117/EEC.