COMPARATOR AS THE ELEMENT OF DISCRIMINATION - IS THE THEORETICAL CONCEPT RECOGNIZED IN SERBIAN CASE LAW?

Abstract

The legal definition of discrimination, stipulated by many national, regional and international documents, contains three elements: protected ground, less favorable treatment and a comparator. All three Serbian non-discrimination acts prescribe the special anti-discrimination civil procedure for protection against discrimination. To prove (the likelihood of) discrimination, by applying specific rules on burden of proof, one should point out that all three elements are present in a certain case. However, the case law of most relevant European courts points to certain cases of discrimination in which comparator is not necessary. By analyzing case law, the author examines whether Serbian courts understand and recognize the adequate comparator for (those) specific cases and anti-discrimination cases in general.