CYIL Vol. 4, 2013

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.