Directive on Reversal of Burden of Proof in Sex Discrimination Cases

last updated 17 December 2007

In Council Directive 97/80 EC of 15 December 1997, recast in Directive 2006/54/EC, the Council of the European Union deemed it necessary to adopt union-wide rules on the burden of proof applied in sex discrimination cases brought under national laws implementing the 1976 Equal Treatment Directive. This decision was taken following a case in which the European Court of Justice held that "the rules on the burden of proof must be adapted when there is a prima facie case of discrimination and that, for the principle of equal treatment to applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought." The Council states in Directive 97/80 EC that "plaintiffs could be deprived of any effective means of enforcing the principle of equal treatment before the national courts if the effect of introducing evidence of an apparent discrimination were not to impose upon the respondent the burden of proving that his practice is not in fact discriminatory." Under Directive 97/80, the EU Council requires Member States "to take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment [established under Directive 76/207/EEC] has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment" set out in Directive 76/207/EEC. The EU Council notes in this 1997 Directive that Member States "need not apply [this reversal of the complainant's burden of proof] to proceedings in which it is for the court or competent body to investigate the facts of the case" as is the case in many proceedings in civil law countries. The Directive also states that its requirements apply to civil or administrative procedures but do not apply to the procedures applied in criminal cases or out of court procedures of a voluntary nature.

Of the Central and Eastern European countries that joined the European Union in 2004, the Czech Republic, Estonia, Bulgaria, Lithuania, Poland, Romania, and to a lesser extent Hungary, have adopted implementing legislation on the reversal of the burden of proof in sex discrimination cases in accordance with this 1997 Directive. This has been a difficult process, as "[t]he question of shifting the burden of proof has been rejected—either vigorously or gently—even in those countries [acceding to the European Union] where it is legally possible/permitted." The failure to reverse the burden of proof in sex discrimination cases has proved to be a disincentive to bringing legal action for sex discrimination in many of the countries that recently joined the EU. The Open Society Institute recommends training for judges and lawyers in these countries on the principle of reversing the burden of proof in sex discrimination cases. From Open Society Institute, Monitoring the EU Accession Process: Equal Opportunities for Women and Men 18-19 (2002); Open Society Institute, Equal Opportunities for Women and Men, Monitoring law and practice in new member states and accession countries of the European Union (April 2005); and, for example, Czech Republic, Civil Procedure Code, Section 133(a).