CYIL Vol. 4, 2013

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.