CYIL Vol. 4, 2013

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.