Shift in the Burden of Proof – Mechanism to Ensure Enforcement of Anti-Discrimination Legislation

Abstract

The inclusion of Article 141 (former Article 119 EEC) and Article 13 in the EC Treaty and the subse­quent adoption of the gender and anti-discrimination Directives provides a comprehensive mechanism for addressing discrimination on the grounds of racial or ethnic origin, gender, religion or belief, disability, age or sexual orientation accordingly. One of the central aims of these Directives is to widen and strengthen access to effective redress. As the practice reminds us, discrimination can be very difficult to prove, and that is why European Union Member States introduced a mecha­nism to shift the burden of proof from the claimant to the respondent. The shift in the burden of proof is one of the main mechanisms which aims to ensure adequate levels of enforcement across the board of the European Union and its correct application is imperative to ensure victims are not deprived of an effective means of enforcing the principle of equal treatment.

The shift of the burden of proof based on the principle of effectiveness provides that if the claimant establishes facts from which the presumption of discrimination arises, then the responding party needs to prove that discrimination did not occur. If the respondent fails to discharge the burden of proof, the court must make a finding of unlawful discrimination.

This paper elaborates the existing anti-discrimination legislation, specifically provisions dealing with shifting of the burden of proof. The paper analyzes the definition of the principle of the shifting of the burden of proof and its historical development rooted in the gender discrimination case law of the Court of Justice of the European Union. Furthermore, the paper presents the current situation, especially emphasizing when and how the burden of proof shifts in practice, assessing what evidence may be considered at each stage of the process. Finally, the paper identifies the key challenges in this area. The text uses results from research that have been conducted in the EU and draws conclusions from the case law of the Court of Justice of the EU and the European Court of Human Rights related to the shift of the burden of proof as an illustration of trends and patterns.