CYIL Vol. 4, 2013

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).