The burden of proof in EU anti-discrimination law: A civil procedure analysis

It is no exaggeration to say that if a person believing themselves the victim of discrimination were to bear the full burden of proof for that claim in court, the right to equal treatment would be largely illusory. Recognising this, EU law stipulates that the claimant in discrimination cases need only to establish a prima facie case, whereafter the burden of proof shifts to the respondent. Yet, the implications of this rule remains unclear in several key aspects, including what constitutes a prima facie case. Conceptually grounded in civil procedure and specifically evidence law doctrine, this article seeks to establish the precise allocation of the burden of proof between the parties under EU law. It argues that the claimant’s prima facie case must contain evidence for three out of the four basic components of discrimination, but does not need to include positive indications of a causal relationship between the discrimination ground and the discriminatory treatment. This interpretation is compatible with the Court of Justice’s jurisprudence and consistent with evidence law debate in several European legal traditions. It also promotes effective enforcement by offering a higher level of protection to the discrimination victim than the most credible alternative.