Christa Tobler is Professor of European Law at the Universities of Basel (Switzerland) and Leiden (Netherlands). She wrote the 2022 thematic report on indirect discrimination under Directives 2000/43 and 2000/78 for the network.
Christa Tobler started her presentation by giving a general overview of the concept of indirect discrimination. In this context, she first explored its development under EU law, where it emerged in case law from the late 1960s, in order to ensure the functioning of the fundamental principles of European law. She then presented the concepts, functions and definition. She posited that indirect discrimination has two functions, namely to serve as an additional tool in detecting discrimination and to make underlying causes of discrimination visible.
The legal definition of indirect discrimination in the Directives is based on three elements. Hence, the concept covers an apparently neutral provision, criterion or practice which has a disparate effect, which cannot be objectively justified, on persons covered by a prohibited discrimination ground compared to other persons. It is important to note that a link is required between the action and a discrimination ground included in the respective legal framework.
Christa Tobler presented important notions of the concept as developed in CJEU case law by referring to several recent cases. She drew attention to the Court’s interpretation that the use of a formally neutral criterion can amount to direct discrimination if it was introduced based on a rationale relating to a prohibited discrimination ground or if it has an exclusionary effect on a certain group, which inextricably links it to prohibited discrimination.
Furthermore, she examined the Court’s understanding of the disparate effect criterion. In this context, she emphasised that the Court found that even a formally neutral measure can amount to direct discrimination if it works to the disadvantage of far more persons who possess the protected characteristic than persons who do not possess it. However, she contended that the Court is not consistent on this issue.
In addition, she presented some observations on how the Court deals with conflicting interests at the level of justification. In the final part of her presentation, Christa Tobler examined how the concept of indirect discrimination could help the Court to recognise multiple discrimination.
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