Handbook on European non-discrimination law – Contents
Certain issues of fact that often accompany examples of discrimination, such as the existence of prejudice, or an intention to discriminate, are not actually of relevance to determining whether the legal test for discrimination has been satisfied. What must be proved in a case of discrimination is simply the existence of differential treatment based on a prohibited ground, which is not justified. This means that several ancillary facts surrounding situations of discrimination do not need establishing to prove a claim.
There is no need to prove that the defendant is motivated by prejudice. Thus, there is no need to prove the defendant has ‘racist’ or ‘sexist’ views to prove race or sex discrimination. General law cannot regulate individuals’ attitudes since they are entirely internal. Rather, it can only regulate actions through which such attitudes may manifest themselves.
Example: In Feryn case, the owner of the company said that he applied this rule because his customers (rather than he himself) only wanted white Belgians to perform the work. The CJEU did not treat this as relevant to deciding if discrimination had occurred. Usually, it is not necessary to prove a discriminatory motive unless there is an attempt to prove the commission of a ‘hate crime’, since criminal law has higher thresholds of evidence.
Furthermore, it is not necessary to show that the rule or practice in question is intended to result in differential treatment. That is to say, even if a public authority or private individual can point to a well-intentioned or good faith practice, if the effect of that practice is to disadvantage a particular group, this will amount to discrimination.
Example: In D.H. and Others v. the Czech Republic,  the government argued that the system of ‘special’ schools was established to assist in the education of Roma children by overcoming language difficulties and redressing the lack of pre-school education. However, the ECtHR found that it was irrelevant whether the policy in question was aimed at Roma children. To prove discrimination, it was necessary to show that they were disproportionately and negatively affected by comparison to the majority population, not that there existed any intention to discriminate.
Moreover, in relation to a case on race discrimination and sexual orientation, the CJEU found that there was no need to prove that there is actually an identifiable victim, and presumably this has equal application for other grounds of discrimination in similar circumstances. While under EU law there may be no requirement for an identifiable victim, this is not the case for accessing the ECtHR, where such a claim would not meet the criteria for admissibility under Article 34 of the ECHR.
Example: In Feryn, it was not possible to show that someone had tried to apply for a job and been turned down, and it was not possible to find someone who said that they had decided not to apply for the job on the basis of the advert. In other words, there was no ‘identifiable’ victim, and the case was brought by Belgium’s equality body. The CJEU said that it was not necessary to identify someone who had been discriminated against. This was because it was clear from the wording of the advert that ‘non-whites’ would be deterred from applying because they knew in advance that they could not be successful. According to this, it would be possible to prove that legislation or policies were discriminatory, without needing to show an actual victim.
Example: In cases of ‘situation testing’, individuals often take part in the knowledge or expectation that they will be treated less favourably. Their main aim is not to actually access the service in question, but to collect evidence. This means that these individuals are not ‘victims’ in the traditional sense. They are concerned with ensuring enforcement of the law rather than seeking compensation for harm suffered. In a case brought in Sweden, where a group of law students conducted situation testing at nightclubs and restaurants, the Supreme Court found that those involved in testing were still able to bring proceedings for discriminatory treatment. At the same time the damages they were awarded could be reduced to reflect the fact that they had not been denied something that they actually wanted (i.e. entry to particular establishments). However, it seems that the CJEU adopted a different approach to ‘situation testing’.
Example: The case of Nils-Johannes Kratzer v. R+V Allgemeine Versicherung AG concerns a lawyer who had applied for a job solely to bring a discrimination complaint rather than with a view to obtaining that position. The CJEU ruled that such a person could not rely on the protection offered by the Employment Equality Directive (2000/78/EC) and the Gender Equality Directive (recast) (2006/54/EC) because such a situation does not fall within the definition of ‘access to employment, to self-employment or to occupation’. The CJEU also found that such an application could be considered as an abuse of rights.
674. CJEU, C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feryn NV, 10 July 2008.
675. ECtHR, D.H. and Others v. the Czech Republic [GC], No. 57325/00, 13 November 2007, para. 79.
676. Ibid, paras. 175 and 184.
677. CJEU, C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feryn NV, 10 July 2008; CJEU, C-81/12, Asociaţia Accept v. Consiliul Naţional pentru Combaterea Discriminării, 25 April 2013.
678. CJEU, C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feryn NV, 10 July 2008.
679. Sweden, Supreme Court, Escape Bar and Restaurant v. Ombudsman against Ethnic Discrimination T-2224-07, 1 October 2008. For an English summary, see European Network of Legal Experts on the Non-Discrimination Field (2009), ‘Sweden’, European Anti-Discrimination Law Review, No. 8, July 2009, p. 68.
680. CJEU, C-423/15, Nils-Johannes Kratzer v. R+V Allgemeine Versicherung AG, 28 July 2016.
6.2. Circumstances irrelevant for the finding of discrimination