The Court of Justice of the EU decided that it does not have jurisdiction to give a preliminary ruling on a reference by the Bulgarian equality body, the Commission for Protection against Discrimination.
However, in order to deal with the substantial questions asked by the CPD, the CJEU first had to decide whether the CPD, entrusted by law with different categories of functions, could be regarded as a court or tribunal within the meaning of Article 267 TFEU, and thus if the reference is admissible. The admissibility of the reference would have given the CJEU an opportunity to decide on an interesting case of indirect discrimination based on ethnic origin and the possibilities for justification of such discrimination.
Although the Opinion of Advocate General Kokott (delivered on 20 September 2012) suggested that the reference is admissible and regarded the CPD in the present case a court or tribunal within the meaning of Article 267 TFEU, the CJEU has followed a different approach in its judgment delivered on 31 January 2013.
The CJEU, following an analysis of its previous case law as well as the particular characteristics of the procedures before the CPD, held in its judgment that it does not have jurisdiction to rule on the questions referred by the CPD. The CJEU’s judgment is based on the fact that, in the Court’s reading, the CPD’s proceedings are similar in substance to an administrative decision and do not have a judicial nature within the meaning of the case-law of the Court relating to the concept of ‘court or tribunal’ in Article 267 TFEU.
You can read the full judgment here and the Opinion of the Advocate General here.
The implications and potentially negative consequences of this judgment for the work of equality bodies will be analysed further at the Equinet Legal Training in Berlin next month.