153 / 350
THE BURDEN OF PROOF IN EUROPEAN ANTIǧDISCRIMINATION LAW
7. Conclusions
The brief analysis of two rather recent cases shows some weaknesses of European
anti-discrimination law. The development concerning the reversal of the burden of
proof in anti-discrimination cases demonstrates how the blind pursuit of efficiency
may lead to excesses endangering the consistency of European human rights
law. Whereas the first judgment of the ECJ (like the judgment of the German
Constitutional Court in a similar situation) left sufficient scope for taking into
account the principle of proportionality, the current rigid regulation of the automatic
reversal of the burden of proof is incompatible with the principle of a fair trial.
This institution of anti-discrimination law leads to institutionalized mistrust and the
presumption of guilt and causes a culture of organized hypocrisy and evasion of the
law. After the US Supreme Court and the ECJ in the last two cases reached a dead
end situation, we have to ask whether anti-discrimination law shall rather return to
its very roots and provide for the reversal of the burden of proof only on a case by case
basis, with due regard of the circumstances of a particular case.