EUR-Charts

Suggested solution:

Yes, the answer is different, as there is applicable EU law that covers the access to services both in relation to discrimination on grounds of sex (Directive 2004/113/EC) and on grounds of racial or ethnic origin (Directive 2000/43/EC). Given the reasoning by the nightclub, the relevance of Directive 2004/113/EC is obvious. The discrimination at issue is direct sex discrimination. Under Art. 4(5) of Directive 2004/113/EC, such discrimination can be objectively justified. The answer to the question of whether there is discrimination would therefore depend on the existence of a legitimate reason (gender balance in the night club? Would reliance on this ground be convincing in the concrete circumstances of the case?) and the proportionality of the measure taken. Again, there is no case law from the Court of Justice on such issues yet. Again, the exercise question invites reflections on these issues.

Whether there is discrimination on grounds of racial or ethnic origin rather than sex (and thus whether the real reason is something other than as indicated by the nightclub) is a matter of proof. Art. 8 of Directive 2000/43/EC concerns the burden of proof. Under this provision, the victim of the alleged discrimination must establish facts from which it may be presumed that there has been direct or indirect discrimination. It is then for the respondent to prove that there has been no breach of the principle of equal treatment. On the substantive level, it should be noted that direct discrimination on grounds of racial or ethnic origin can be justified only by reference to the specific derogation grounds mentioned in the directive (e.g. Art. 4 on occupational requirements).

[Relevant Charts: Chapter 10, in particular Charts 10/8, 10/10–10/13]

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