Thursday, 20 September 2012

Are consumers entitled to check their electricity usage or does that depend on their neighbours' ethnicity? - opinion of the AG Kokott in Belov (C-394/11)

20 September 2012: Opinion of the AG Kokott in Belov (C-394/11)

Mr Belov lives in a Bulgarian city in one of its districts known as 'Roma districts'.  Throughout his city, Montana, the electricity meters are placed at a height of up to 1.70m, usually in the consumer's home or on the outside walls of the building, or on surrounding fences. However, in these two Roma districts the electricity meters were attached to electricity poles at a height of 7m. As a result, consumers living in these neighbourhoods cannot easily check the electricity meters and their usage data. The electricity company enables consumers to make an indirect visual check on condition of a written request submitted three days in advance by facilitating a use of a special vehicle with a lifting platform, free of charge. If a consumer in these districts wants to have a meter installed in his house, he can obtain it upon paying an installation fee. Mr Belov argued in his and other Roma name that they were being discriminated against on the basis of their ethnic origin.

1. Scope of the Directive - does it cover providing electricity meters to consumers free of charge?

The AG Kokott reminds in this case that Article 3(1)(h) of the Directive 2000/43 on equal treatment prohibits discrimination based on racial or ethnic origin with respect to the supply of electricity. The electricity meters are being provided by the electricity supplier according with its general contract conditions, which means they are part of the agreement on the supply of electricity. (Par. 59) The provision of the Directive should not be understood as only applying to the provision of the electricity per se, and not elements associated with it, like the meters. (Par. 60)

"Imagine if a public transport company earmarked different seats on buses according to the gender, colour or ethnic origin of passengers. Even though all passengers were transported and thus undoubtedly benefited from the transport service as such, it would be obvious that the specific conditions under which they are transported are not equal." (Par. 61)

While the Directive applies only to service provided for consideration and electricity meters are supplied free of charge, it is likely that the price thereof has been included in the price of the supply of electricity. (Par. 65)

2. Compatibility of national law - adding another requirement to recognise discrimination

The other set of questions asked by the Bulgarian court concerned the compatibility of the Bulgarian law with the Directive. Bulgarian law requires an infringement of rights of interests defined in law to take place in order to recognise the existence of discrimination. The Directive does not pose such a requirement - it is sufficient that a person is treated less favourably than another is, has been or would be treated. (Par. 72) The Bulgarian law by adding another, stricter requirement is incompatible with the Directive. (Par. 76) In the opinion of the AG Kokott, the Bulgarian court should try to apply and interpret Bulgarian provisions in accordance with the Directive. (Par. 78) If this is not possible, then Mr Belov may not invoke protection of the Directive directly, since directives do not have a horizontal effect. (Par. 79) The national court should, however, disregard the national legislation which is contrary to the prohibition of discrimination established as a fundamental right in Article 21 of the Charter. (Par. 80)

3. Burden of proof - 'presumption' or 'conclusion' of discrimination? Form of discrimination?

The AG Kokott decides based mostly on the linguistic interpretation of the Directive, that the burden of proof whether there was discrimination takes place after the party who considers themselves discriminated presents facts that allow for a 'presumption' of discrimination. (Par. 88) In the given case, the electricity company would likely have to present facts that would justify a commercial decision (made long time ago) to install electricity meters in the Roma districts differently than is normal in Bulgaria. This is justified by the fact that the relevant information should be in their sphere of control. (Par. 93)

The facts that have been presented to the CJEU point, pursuant to AG Kokott, at indirect discrimination, since:

"It is clear, however, that the two districts concerned are inhabited predominantly by people belonging to the Roma community. Consequently, the practice of attaching electricity meters at a height of 7 m is liable, in principle, to affect members of that ethnic group in a particular way and to put them at a disadvantage, since it makes it virtually impossible or at least excessively difficult for them to make visual checks of the relevant electricity meters." (Par. 99)

The submitted evidence suggests that the measure of installing electricity meters at a height of 7m was taken because of a large number of unpaid electricity bills and in response to many cases of illegal interference with electricity supply infrastructure, manipulation and illegal electricity extraction in these two districts. The national court has to determine whether the measure taken to prevent future fraud and abuse (legitimate aim) was proportional. (Par. 101-102)

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