Nikolova is twin to the Belov case (C-394/11) brought to the attention of the CoJ in 2011. Both applicants called into question the practice by which a Bulgarian electricity provider, CHEZ, placed electricity meters at a height of approximately 7 m (instead of 1.70 m) in certain districts thus making it very difficult for consumers to keep track of their electricity consumption. The districts concerned are predominantly inhabited by Roma and the reason given for that practice is the large number of problems created by the tampering with electricity meters and frequent occurrence of unlawful electricity connections in these districts. The substantive questions raised relate to the interpretation of Directive 2000/43 implementing the principle of equal treatment irrespective of racial or ethnic origin as transposed in Bulgarian law.

In the earlier Belov case, the preliminary reference to the CoJ had been made by the Bulgarian Equality Body (KZD) and was dismissed as inadmissible for procedural reasons. According to the CoJ, the Bulgarian Equality Body did not qualify as a ‘court or tribunal’ entitled to make use of the preliminary reference procedure under Article 267 TFEU. The Belov case had provided an opportunity to reflect on the nature and role of equality bodies, the designation of which is requested by several EU anti-discrimination directives in order to ‘promote’ equal treatment and act as a complement to litigation before judicial authorities. An interesting infringement action against Finland has been brought this year before the CoJ in Case C-538/14 and could have further stressed the importance, and possibly clarified the role, of these bodies. Although the case has now been withdrawn after Finland adjusted its legislation, one may hope that this recent infringement action illustrate a new and stronger interest on the side of the Commission in ensuring the existence of operational equality bodies across the EU in the future.

The procedural obstacle to the preliminary ruling in Belov has been eliminated in Nikolova. The preliminary questions are now raised by the Administrative Court of the City of Sofia in the context of a challenge against a decision made by the KZD. The Nikolova Case is only the second case in which the CoJ will be given an opportunity to really engage with the substance of Directive 2000/43 (see also FerynC-54/07).[1] Advocate General Kokott, in her recent opinion in the case (March 12 2015), clarifies some of the substantive issues she already explored in relation to the Belov case. In her opinions on these two cases, the AG concludes in essence that: the situation falls within the material scope of Directive 2000/43 in so far as it relates to the supply of electricity services (i); the practice under scrutiny constitutes indirect discrimination on grounds of ethnic origin (ii); it is justified by reference to legitimate aims (iii) but may not be proportionate due to its large scale and stigmatising effects (iv). Yet, the Advocate General suggests leaving the final assessment of proportionality to the national court.

An interesting feature of the Nikolovacase is that the applicant herself declares not being part of the Roma ethnic group. Thus, she wishes to benefit from the protection of the prohibition of discrimination on grounds of ethnic origin without belonging to the relevant ethnic group. The Court will thus have to examine whether to extend its case law on ‘discrimination by association’ as developed in relation to Directive 2000/78 establishing a general framework for equal treatment in employment and occupation. In a case on EU disability law, the Court had indeed asserted that the prohibition of direct discrimination on grounds of disability should be understood as allowing a mother of a disabled child to bring a complaint for the less favourable treatment suffered by reference to the condition of her child (Coleman C-303/06).

[1] A few other cases involving Directive 2000/43 did not lead to detailed discussion of substantive aspects of this instrument.