Request for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 17 February 2014 — CEZ Razpredelenie Bulgaria AD v Komisa za zashtita ot diskiminatsia
(Case C-83/14)
Language of the case: Bulgarian
Referring court
Administrativen sad Sofia-grad
Parties to the main proceedings
Applicant: CEZ Razpredelenie Bulgaria AD
Defendant: Komisa za zashtita ot diskiminatsia
Other parties to the proceedings: Komisa za energiyno i vodno regulirane, Anelia Georgieva Nikolova, in business as the shopkeeper ‘Anelia Nikolova-Rosa’
Questions referred
Is the expression ‘ethnic origin’ used in Council Directive 2000/43/EC of 29 June 2000 1 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and in the Charter of Fundamental Rights of the European Union to be interpreted as covering a homogeneous group of Bulgarian citizens of Roma origin such as those living in the ‘Gizdova mahala’ district of the town of Dupnitsa?
Does the expression ‘comparable situation’ within the meaning of Article 2(2)(a) of Directive 2000/43/EC apply to the circumstances of the present case, in which the commercial measuring instruments are positioned in Roma districts of the town at a height of between 6 and 7 metres whereas in other districts not densely populated by Roma they are generally positioned lower than 2 metres above ground?
Is Article 2(2)(a) of Directive 2000/43 to be interpreted so that the positioning of commercial measuring instruments in Roma districts of town at a height of between 6 and 7 metres constitutes less favourable treatment of the population of Roma origin compared to the population of other ethnic origin?
On the assumption that there has been less favourable treatment, does that treatment, pursuant to the abovementioned provision, result in the circumstances of the main case in whole or in part from the fact that it affects the Roma ethnic group?
Under Directive 2000/34 is a national provision such as Paragraph 1(7) of the Supplementary Provisions of the Zakon za zashtita ot diskriminatsia (Law on Protection against discrimination; ‘ZZD’) — according to which any measure, action or failure to act which directly or indirectly affects rights or legitimate interests constitutes ‘unfavourable treatment’ — permissible?
Is the expression ‘apparently neutral practice’ within the meaning of Article 2(2)(b) of Directive 2000/43 applicable to the practice of the CEZ Razpredelenie Bulgaria AD of positioning commercial measuring instruments at a height of between 6 and 7 metres? How should the phrase ‘apparently neutral’ be interpreted — as meaning that the practice is obviously neutral or that it only seems neutral, at first glance?
For a finding that there has been indirect discrimination within the meaning of Article 2(2)(b) of Directive 2000/43, is it necessary that the neutral practice places persons in a particularly less favourable position on the ground of racial or ethnic origin, or is it sufficient that that practice affects only persons of a specific ethnic origin? In that context, under Article 2(2)(b) of Directive 2000/43 is a national provision such as Article 4(3) ZZD — according to which there is indirect discrimination where a person is placed in a more unfavourable position because of the characteristics set out in Article 2(1) (including ethnic origin) — permissible?
How should the expression ‘put … at a particular disadvantage’ within the meaning of Article 2(2)(b) of Directive 2000/43 be interpreted? Does it correspond to the expression ‘less favourable treatment’ used in Article 2(2)(a) of Directive 2000/43, or does it cover only particularly serious and obvious cases of unequal treatment? Does the practice described in the present case amount to particularly unfavourable treatment? If there has been no particularly serious and obvious case of putting someone in an unfavourable position, is that sufficient to conclude that there has been no indirect discrimination (without examining whether the practice in question is justified, appropriate and necessary in view of attaining a legitimate aim)?
Are national provisions such as Article 4(2) and (3) ZZD — which for direct discrimination require ‘unfavourable treatment’ and for indirect discrimination require ‘placing in a more unfavourable position’ but which do not, unlike the directive, make a distinction according to the degree of seriousness of the unfavourable treatment concerned — permissible under Article 2(2)(a) and (b) of Directive 2000/43?
Is Article 2(2)(b) of Directive 2000/43 to be interpreted as meaning that the practice of the CEZ Razpredelenie Bulgaria AD in question in relation to the security of the electricity network and the correct recording of electricity consumption is objectively justified? Is this practice also appropriate in the light of the obligation of CEZ Razpredelenie Bulgaria AD to grant consumers free access to the electricity meter readings? Is that practice necessary when, according to media publications, there are other technically and financially feasible means of securing the commercial measuring instruments?
____________1 OJ 2000 L 180, p. 22.