December 04
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Dolores Utrilla
19th May 2020
Human Rights Justice & Litigation

Insight: “Effective legal protection of discrimination victims and procedural autonomy of Member States: the AG’s Opinion in Braathens Regional Aviation AB” by Dolores Utrilla

The case law of the Court of Justice of the EU (CJEU) has played a prominent role in the establishment and evolution of EU non-discrimination law. In particular, the CJEU has devoted standing efforts to define the procedural requirements that Member States should comply with in order to facilitate the effective application of substantive anti-discrimination rules (as explained in detail here by Elise Muir and Bruno de Witte).

Drawing on this case law, Directive 2000/43 against discrimination on grounds of racial or ethnic origin (which in turn is based on the general prohibition of discrimination laid down in Article 21 of the Charter) requires Member States to lay down adequate means of legal protection for victims of such discrimination. The Directive refers to the applicable remedies (Article 7) and sanctions (Article 15) as key elements to ensure observance of the right to equal treatment.

Now, the pending Grand Chamber case Braathens Regional Aviation AB (C-30/19) offers the Court of Justice the opportunity to further delineate the contours of Member State’s procedural autonomy when confronted with Directive 2000/43, read in the light of the Charter. This case raises the particularly interesting question, never tackled before by the Court of Justice, of whether EU law precludes national rules allowing a defendant to bring a dispute to an end by admitting a claim for compensation for discrimination without acknowledging the existence of discrimination and without the applicant being able to obtain an examination or finding of discrimination from a court.


The roots of the Court of Justice’s case law on the procedural dimension of non-discrimination law go back to von Colson and Kamann (C- 14/83), where it held that Member States are required to introduce into their legal systems such measures as are necessary to enable all persons who consider themselves wronged by discrimination to pursue their claims by judicial process. According to the Court of Justice, such measures must: (i) be sufficiently effective to achieve the objective of the relevant EU legislation; (ii) enable the persons concerned to rely on those measures in an effective way before national courts; and (iii) provide for sanctions which have a real deterrent effect on the person responsible for the discrimination. These requirements were consistently emphasised in later cases as Dekker (C-177/88), Draehmpaehl (C-180/95), Asociația Accept (C-81/12), or Leitner (C-396/17).

At the same time, the Court of Justice has recalled the principle of procedural autonomy of Member States, according to which, in the absence of EU rules on the matter, it is for each national legal system to choose among the different remedies and sanctions suitable for ensuring judicial protection of the rights derived from EU law (Rewe, C-33/76). This also applies to non-discrimination rights, including those covered by Directive 2000/43 (Feryn, C-54/07), and is subject to the principles of equivalence and effectiveness. Moreover, in certain cases the Court of Justice has applied an additional test, deduced from Articles 47 and 52(1) of the Charter, assessing whether the national mechanisms in place ensure effective judicial protection by allowing the person concerned to assert before a court the rights arising from EU law (so for example in Star Storage and Others, C-439/14 and C-488/14).

The Braathens case

The pending case Braatens Regional Aviation AB arose from the request for a preliminary ruling by the Supreme Court of Sweden (Högsta domstolen) concerning the scope, under Directive 2000/43 and the Charter, of the right of a person who considers himself a victim of discrimination to have a court examine whether that discrimination has occurred. More specifically, the referring court seeks to ascertain whether such a person has that right in the context of an action for damages where the defendant agrees to pay the compensation sought, but does not admit any form of discrimination.

The issue was raised in a dispute between an air passenger, represented by the Swedish Ombudsman for combating discrimination (Diskrimineringsombudsmannen), and the airline Braathens Regional Aviation AB (‘Braathens’). According to the Ombudsman, Braathens had taken the passenger to be an Arab and a Muslim, had subjected him for that reason to an additional security check and, consequently, had placed him at a disadvantage for reasons relating to physical appearance and ethnicity, by treating him less favourably than other passengers in a comparable situation.

Braathens admitted the claim for payment of compensation before the Stockholm District Court, but disputed the existence of any discrimination. That court ordered Braathens to pay damages and dismissed the Ombudsman’s claim that no ruling should be given without examining the substance of the alleged discrimination. Later on, the Stockholm Court of Appeal dismissed the appeal brought by the Ombudsman, considering that the claim of discriminatory behaviour was irrelevant given that the passenger’s claim for compensation had been admitted. The Ombudsman then brought an appeal before the Swedish Supreme Court and asked it to make a reference to the Court of Justice for a preliminary ruling on the matter. According to the Ombusdman, the action for damages does not simply seek payment of a sum of money, but also to obtain either an admission from the defendant or a declaration by the court that such compensation is being paid because of discrimination.

The Advocate General’s Opinion

In his extensive and thoroughly substantiated Opinion in the case (delivered last Thursday 14 May and available here), Advocate General Saugmandsgaard Øe suggests that the Court of Justice rule that Council Directive 2000/43, read in the light of Article 47 of the Charter, must be interpreted as meaning that, under the circumstances described above, a person who considers himself or herself subject to discrimination and seeks compensation has the right to have a court examine whether, and, where appropriate, find that, that discrimination has occurred.

In essence, the Advocate General considers that the absence of a link between the compensation and the declaration of a breach of the right to equal treatment (either in the form of an acknowledgement by the defendant or a finding by a court)  undermines both the compensatory and deterrent function of the sanction.

As the Opinion convincingly argues, this conclusion logically flows from the previous case law of the Court of Justice, which prevents limitation of the subject matter of the applicant’s claim to the sanction (in this case compensation), excluding the examination of whether discrimination existed. It is also in line with the case law of the European Court of Human Rights, according to which a person who considers himself or herself a discrimination victim and who seeks reparation in the form of compensation must be enabled to receive not only the compensation sought, but also an acknowledgment of the alleged breach of his or her rights (so for instance in Centro Europa 7.S.R.L and Di Stefano v. Italy).

Moreover, the Advocate General argues that this case should be examined in light of the additional test for Member State’s procedural autonomy arising from Articles 47 and 52(1) of the Charter, as long as it touches the very essence of the right to effective judicial protection. In this regard, the Opinion points out that a mechanism that closes judicial procedures for the mere fact that the defendant accepts to pay compensation, without him or her recognising the existence of discriminatory behaviour, amounts in practice to a deprivation of the applicant’s right to have a court examine whether, or find that, discrimination has occurred. According to the Opinion, this breach of the applicant’s rights is contrary to EU law, even if the national rules at hand are justified by the legitimate aim of ensuring the proper administration of justice through smooth procedures and the possibility of amicable settlements.


Dolores Utrilla is Assistant Editor at EU Law Live and Associate Professor at the University of Castilla-La Mancha.


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