In the case of CHEZ Razpredelenie Bulgaria, the European Court of Justice (“ECJ”) has extended the concept of indirect discrimination to cover those who do not have a protected characteristic, but who are associated with such people. In this case, a Bulgarian shop owner was protected from indirect discrimination affecting members of the Roma community, even though she was not a member of that community herself.
Ms Nikolova ran a shop in an area of Bulgaria which was predominately populated by members of the Roma community, but Ms Nikolova was not Roma herself. The local electricity company had a policy of fitting electricity meters 6 metres from the ground in the area of Ms Nikolova’s shop. This was because of the amount of tampering with the electricity supply in the area. Electricity meters would normally be placed much closer to the ground, allowing users to check their consumption.
Ms Nikolova complained that her electricity bills were high, but she was unable to check her consumption as her meter was so far from the ground. She suspected that the electricity company was artificially inflating her bill to make up for lost revenue as a result of the tampering with the electricity supply in the area. She raised a complaint with the Bulgarian Commission for Protection for Discrimination, arguing that she was being disadvantaged because of a practice applied on the basis that most of the inhabitants of the region in which she lived were Roma. The Commission upheld Ms Nikolova’s complaint. The electricity supplied appealed to the Bulgarian Administrative Court, which referred a number of questions to the ECJ.
The ECJ’s decision
The ECJ made a number of findings in connection with Ms Nikolova’s complaint. Of most significance was its finding in relation to indirect discrimination. The ECJ found that the EU’s directive on equal treatment relating to race and ethnic origin (“the Equal Treatment Directive”) did permit a person who did not have a protected characteristic to bring a claim of indirect discrimination, where that person was affected by less favourable treatment impacting those with a protected characteristic. In this case, Ms Nikolova could bring a claim of indirect discrimination because she was impacted by a practice which caused less favourable treatment/a particular disadvantage to a protected group (i.e., the Roma community in the area where Ms Nikolova had her shop), even though Ms Nikolova was not of Roma origin herself.
While this case was not about employment issues but, rather, the supply of services, the EU legislation on which the decision was based is the same. Notably, the provisions of the Equality Act on indirect discrimination are more restrictive than the provisions of the Race Directive, because they require a complainant to have a protected characteristic which, in this case, Ms Nikolova did not have. We can expect challenges to the Equality Act as not implementing properly the EU’s anti-discrimination directives in cases where individuals themselves do not have a protected characteristic, but are negatively impacted by those practices which cause a substantial disadvantage to those who do.