Bulgarian case

BULGARIAN CASE
Conference in Palermo, November 2009

I. FACTS

The Technical University of Varna announced a vacancy for the position “assistant” in the Department “Computer sciences and technologies”.
Angel Angelov applied for the vacancy. He had enclosed all the papers required. It was ascertained by his documents that the applicant had an academic degree “doctor – engineer” held in Technical University of Magdeburg. It was found that he had a long term practical experience in this matter and that he was a creator of an invention patented in Germany. Angel Angelov was 51 years old on the date of application.
The applicant was not admitted to participate in the competition as according to a provision in the Academic Degrees and Academic Ranks Act and the Rules for its implementation the persons applying for the academic rank “assistant” should not be older than 35 years of age, and persons having an academic degree - not older than 40 years of age.
Angel Angelov lodged a complaint with the Commission for protection against discrimination about being discriminated on ground of age.
In response to the complaint the rector of the University contended that the limit of the age required to hold the academic rank “assistant” was in conformity with the purposes of the Law, which seek to provide continuity in the the science and higher education development by stimulating young scientists and giving them opportunities for professional development equal to those of habilitated scholarly staff. The rector stated that the age requirement in this case should not be considered as discrimination as it was an exception granted by Article 7 of the Protection Against Discrimination Act, respectively – Article 6 of the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (Directive 2000/78/EC).
The Commission for protection against discrimination rejected the complaint of the applicant and stated that no act of discrimination had occurred in the respective case. The Commission considered that there was a legal obstacle to admit the applicant to the competition as the limitation concerning the age was imposed by the Law – Article 9 of the Academic Degrees and Academic Ranks Act. Thus motivated, the Commission ruled that the rector of the University had acted according to the Law and that the applicant was not unequally treated.
Angel Angelov brought an action for annulment before the Supreme Administrative Court against the decision of the Commission for protection against discrimination.
The appellant made a plea to the Court for referring a question for a preliminary ruling to the European Court of Justice on the topic if there was a conflict between Article 9 of the Academic Degrees and Academic Ranks Act and Article 6 of the Directive 2000/78/EC and if so, was the Court obliged not to apply the national provision which contravened a rule of the Community law.
II. LEGAL FRAMEWORK

INTERNATIONAL LAW

Convention for the Protection of Human Rights and Fundamental Freedoms

Article 14(1) - Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

EUROPEAN COMMUNITY LAW

Treaty establishing the European Community

Article 234
The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of this Treaty;
(b) the validity and interpretation of acts of the institutions of the Community and of the ECB;
(c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation

Article 1
Purpose
The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.

Article 2
Concept of discrimination
1. For the purposes of this Directive, the "principle of equal treatment" shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2. For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:
(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or
…
5. This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.

Article 6
Justification of differences of treatment on grounds of age
1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.
Such differences of treatment may include, among others:
(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;
(b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;
(c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

NATIONAL LAW

Constitution of the Republic of Bulgaria

Article 6
(1) All persons are born free and equal in dignity and rights.
(2)All citizens shall be equal before the law. Neither abridgement of rights nor any privileges whatsoever shall be admissible on the basis of race, nationality, ethnic identity, sex, origin, religion, education, convictions, political affiliation, personal and social status, or property status.

Article 120
…
(2) Citizens and legal persons may appeal against any administrative act which affects them except such as is expressly specified [as unappealable] by statute.

Academic Degrees and Academic Ranks Act

Article 9
(1) The academic ranks "assistant" and "research associate" shall be conferred to persons with higher education, not older than 35 years of age, and to persons having an academic degree - not older than 40 years of age, who have made achievements in science or in practice.

Protection against Discrimination Act

Article 1
This Act shall regulate the protection against all forms of discrimination and shall contribute to its prevention.

Article 2
The purpose of this Act shall be to ensure to every person the right to:
1. equality before the act;
2. equal treatment and opportunities for participation in public life;
3. effective protection against discrimination.

Article 4
(1) Any direct or indirect discrimination on grounds of gender, race, nationality, ethnicity, human genome, citizenship, origin, religion or belief, education, convictions, political affiliation, personal or social status, disability, age, sexual orientation, marital status, property status, or on any other grounds established by law or by an international treaty to which the Republic of Bulgaria is a party, shall be banned.
(2) Direct discrimination shall be any less favourable treatment of a person on the grounds referred to in Paragraph (1), than the treatment another person is receiving, received, or would receive in comparable similar circumstances.
(3) Indirect discrimination shall be putting a person, on the grounds referred to in Paragraph (1), in a less favourable position compared to other persons through an apparently neutral provision, criterion or practice, unless the said provision, criterion or practice is objectively justified in view of a legal aim and the means of achieving this aim are appropriate and necessary.

Article 7
(1) It shall not constitute discrimination:
…
2. to treat persons differently on the basis of a characteristic relating to any of the grounds referred to in Article 4 (1), when the said characteristic, by the nature of a particular occupation or activity, or of the conditions in which it is performed, constitutes a genuine and determining occupational requirement, the aim is legal and the requirement does not exceed what is necessary for its achievement;
…
5. to set requirements for minimum age, work experience or length of service in employment procedures or in granting certain job-related privileges, provided that this is objectively justified for attaining a legal aim and the means for attaining it do not exceed what is necessary;
6. to set a maximum age requirement for employment connected with the need for training in order to occupy the respective position or with the need for a reasonable time limit for occupying the position before retirement, where this is objectively justified for attaining a legal aim and the means for its attainment do not exceed what is necessary;
…
11. to set minimum and maximum age requirements for access to training and education, where this is objectively justified for achieving a legal aim in view of the nature of the training or education, or the conditions in which it is conducted, and the means for achieving this aim do not exceed what is necessary;

Article 47
The Commission for Protection against Discrimination shall:
1. ascertain violations of this or other Acts regulating equal treatment, the perpetrator of the violation and the aggrieved person;
2. decree prevention and termination of the violation and restoration of the original situation;
3. impose the sanctions envisaged and implement administrative enforcement measures;
4. issue mandatory directions for compliance with this or other Acts regulating equal treatment;
5. appeal against administrative acts decreed in contravention of this or other Acts regulating equal treatment, bring action in court and join as a concerned party in proceedings instituted under this or other Acts regulating equal treatment;
6. make proposals and recommendations to the state and municipal authorities to discontinue discrimination practices and revoke their acts issued in violation of this or other Acts regulating equal treatment;

Article 65
By the decision decreed the panel (of the Commission) shall:
1. ascertain the violation committed;
2. ascertain the offender and the aggrieved person;
3. determine the type and amount of the sanction;
4. enforce compulsory administrative measures;
5. ascertain that no violation of the law has been committed and leave the complaint without consideration.

Article 68
(1) The Commission’s decisions shall be appealable to the Supreme Administrative Court under the conditions and procedure of the Administrative Procedure Code within 14 days of communicating them to the persons concerned.

Article 76
(1) For prevention or termination of violations under this or other Acts regulating equal treatment, as well as for prevention or elimination of the harmful consequences of such violations, the Commission, on its own initiative or on a proposal of trade union organisations, natural or legal persons may apply the following compulsory administrative measures:
1. issue mandatory directions to employers and officials to eliminate violations of the legislation for prevention of discrimination;
2. stay the execution of unlawful decisions or orders of employers or officials which lead or may lead to discrimination;

Article 77
The Commission’s decisions for application of compulsory administrative measures under this Section may be appealed under the conditions and procedure of Article 68. The appeal shall not stop the execution of the compulsory administrative measure unless the court orders otherwise.

Article 78
(1) A person who commits discrimination as per this Act shall be punished by a fine of BGN 250 to 2,000, unless he/she is liable to more severe punishment.

Article 84
…
(2) Punishments shall be imposed by a decision of the Commission for Protection against Discrimination, which punishments may be appealed under the conditions and procedure of the Administrative Procedure Code. An appeal shall stop the execution of the contested decision.

Additional provisions
§ 1. For the purposes of this Act:
…
(7) "Less favourable treatment" shall mean any act, action or inaction which directly or indirectly affects rights or legal interests.

Administrative Procedure Code

Article 172
…
(2) The court may declare the nullity of the contested administrative act, may revoke the said act in whole or in part, may modify the said act, or may reject the contestation.

Article 173
(1) Where the matter does not lie within the discretion of the administrative authority, after declaring the nullity or revoking the administrative act, the court shall adjudicate in the case on the merits.
(2) Outside the cases referred to in Paragraph (1), as well as where the act is null by reason of lack of competence or if the nature of the said act precludes adjudication in the matter on the merits, the court shall transmit the case file to the relevant competent administrative authority with mandatory instructions on the interpretation and application of the law.

III. QUESTIONS

Is the plea of the appellant for referring a question for a preliminary ruling to the European Court of Justice admissible and valid?

Should the refusal of admission in the competition on the ground that the age limitation is imposed by the Law be considered as discrimination committed by the rector of the University?

Could the case be considered as an exception to the rule of non-discrimination; is the limitation justified with lawful aim and are the means of achieving that aim appropriate and necessary?

Has the Court the power to ignore a legal provision in force on condition that the Court has considered it discriminative?

Has the Court the authority to ascertain discrimination and to impose compulsory administrative measures and administrative sanctions provided by the Protection Against Discrimination Act or this matter lies within the discretion of the Commission for protection against discrimination and the Court is obliged to transmit the case file to the Commission with mandatory instructions on the interpretation and application of the Law?

BULGARIAN CASE
Conference in Palermo, November 2009

SOLUTION

I.In regard to the plea for a preliminary ruling

Both instances rejected the plea of the appellant to refer a question for a preliminary ruling before the European Court of Justice on the grounds that the provision of the Directive, which interpretation had been sought, was irrelevant to the dispute and the rule of the Community law was clear and needed no interpretation. The Court stated that the Directive provision cited was transposed into the national legislation and applied as such - Article 7, Para 1 of the Protection against Discrimination Act.

II. In regard to the judgment in the case upon its merits
1. The Court of first instance judgment
The Court of first instance issued a judgment upon the merits of the dispute stating that the decision of the Commission for protection against discrimination was lawful and rejected the appeal. The Court justified his ruling on the ground of lack of evidence for any less favourable treatment of the applicant compared to the treatment of another person in comparable similar circumstances. The Court ruled that the applicant was not allowed to enter the competition, because his candidature did not meet objectively a requirement set by the Law and therefore the refusal was not due to the personal opinion of the rector of the University. According to the Court’s judgment, the applicant received treatment anyone else would be given in case one did not meet the condition of Article 9 of the Academic Degrees and Academic Ranks Act. The inadmissibility of the applicant’s candidature was justified as consistent with the legal purpose of the Protection against Discrimination Act: equality before the law and equal treatment (Article 2, Section 1 and 2).

2. The Court of cassation judgment

The Court of cassation reversed the first instance ruling as illegal and gave judgment in the case on its merits. The Court of cassation revoked the decision of the Commission for protection against discrimination asserting direct discrimination against the applicant and transmitted the case file to the Commission with mandatory instructions to impose the sanctions envisaged and implement administrative enforcement measures.
The Court stated that as the applicant was not allowed to enter the competition, he had been deprived of the opportunity to obtain the desired academic rank in case of winning the competition, which represented unfavourable treatment within the meaning of Article 4, Para 2 combined with Additional Provision 1, Section 7 of the Protection against Discrimination Act.
The applicant must have been compared to the other applicants, responding to the requirement of maximum age.
Direct discrimination had been taken to occur on grounds of age within the meaning of Article 4, Para 2 combined with Para 1 of the Protection against Discrimination Act. The legal provision does not require intention for discriminatory acts. That is why the lack of an intention found by the Court of first instance was irrelevant to assumption of discriminatory treatment, even if it had been considered lawful by the Court in regard to Article 9 of the Academic Degrees and Academic Ranks Act.
Protection against Discrimination Act prohibits all forms of discrimination. In this regard, the unfavourable treatment even in case of observing the Law, will not constitute discrimination only if the legal provision itself is not discriminatory.
The Commission for protection against discrimination had lawfully acknowledged that the age limitation under Article 9 of the Academic Degrees and Academic Ranks Act does not fall within the exception to Article 7, Para 1 of the Protection against Discrimination Act and in particular of the one of Section 6.
The academic rank “assistant” competition is generally aimed at employing the winner of the competition by the higher school. The employed person will become a member of the scholarly staff and will obtain equal rights and obligations compared to habilitated persons (associate professors and professors), whose election is not subject to age limitation. Therefore, the Court stated, the age limitation for assistant competition was not connected with the content of the employment relationship, otherwise it should apply to the whole teaching staff. This limitation was not connected with the need for training the person for holding the post in question because the applicant should possess the necessary qualification as a prerequisite for his election, neither a reasonable period of employment before retirement is required because such a period is in contradiction with the reasonable use of the teaching staff capacity, nor subsequent teaching of the person is necessary, because as a teacher he is the subject not the object of the teaching.
The final statement of the court was that as the rule of Article 9, Para 1 of the Academic Degrees and Academic Ranks Act represented direct discrimination, the rector of the University had committed a discriminatory act, while fulfilling its requirement for age limitation. Having stated the opposite, the Commission and the Court of first instance had violated the Law – Article 4, Para 2 combined with Para 1 and Article 7, Para 1 of the Protection against Discrimination Act.

3. Additional information
According to a press release from 2nd September 2009 in the Council of Ministers has been drafted a Supplement and Amendment Act to the Academic Degrees and Academic Ranks Act, which envisages the abolition of the age limitation.