Czech Republic, Supreme Court of the Czech Republic, 13 December 2017 30 Cdo 2260/2017

Identification of the case

• Non-discrimination (art. 21 CFREU)

• Sections 10, 1 (1) (h), 2 (3), 3 (1) and 5(2) of the Anti-discrimination Act 2009

• Directive 2000/78/EC

Summary of the case

This case concerns the interpretation of the term “the person affected by such act” as stated in section 10 (1) of the Anti-discrimination Act and whether this term should be interpreted restrictively and include only the person that was subject of such discriminatory act. The applicants’ daughter died. The applicants argued that the daughter’s state of health required her to be transferred to the department of anaesthesiology, resuscitation and intensive medicine. However, the doctors repeatedly refused to do so, as they argued that her state of health would result in her death regardless. The applicants argued that she was therefore discriminated against based on her state of health and was denied healthcare which resulted in her death. They demanded a written apology and financial compensation from the defendant, an hospital, for the non-pecuniary damage suffered based on the Anti-discrimination Act.

• Civil judicial enforcement

The Supreme Court quashed the decision of the Appeal Court and returned the case back to the Court of 1st instance.

The court of first instance refused the application, stating that according to the wording of the Anti-discrimination Act, only the “person affected by such act” has the right to claim before courts. In this case, only the deceased girl would have the right to compensation as this right is not hereditary. The applicants then appealed the court’s decision, arguing that the term “person affected by such act” was interpreted restrictively and should not only include the subject of the discriminatory act.

The Appeal Court agreed with the decision of the Court of first instance, stating that the term “person affected by such act” should only include persons whose right to equal treatment was violated. The applicants then brought the case before the Supreme Court. The applicants referred to case C-54/07 - Feryn, where a non-profit organisation had the right to claim human rights protection before a court as there was no person affected by discrimination, and V.C. v Romania (ECtHR, App. No. 47848/08). The applicants then argued that they considered themselves “persons affected by such act” as it was them who had repeatedly asked the defendant to refrain from such discrimination and provide sufficient health care for their daughter. If the applicants did not have the right to claim non-discrimination before court, the discrimination would not be remedied because deceased patients, who according to the court are the only ones with the right to claim before court, cannot make use of such a right.

Reference was then made by the court to case C-303/06 - S.Coleman v Attridge Law, where it was ruled that the principles on equal treatment, as laid down in Directive 2000/78/EC, should also be extended to a person who is closely associated with a disabled person and has been discriminated against by reason of that association.

The Supreme Court then stated that the interpretation of the term should be in line with the aim of the Directive 2000/78/EC and CJEU’s case law. If an interpretation in conformity with European law is possible, preference will be given to such an interpretation.

Further, the Supreme Court ruled that the wording of section 10 of the Anti-discrimination Act should not be interpreted restrictively in a way that only the person affected by such an act shall have the right to claim before a court. This term also includes persons that are close to the person directly affected by the discrimination. Therefore, the applicants had the right to claim before the court. The Supreme Court therefore quashed the decision of the Appeal Court and returned the case to the Court of first instance.

Role of the Charter and role of the general principles on enforcement

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)

Anti-Discrimination Act 2009

Section 1 (1) (h)

This Act transposes the relevant regulations of the European Communities and, in relation to the Charter of Fundamental Rights and the international agreements that are part of the legal order, defines more precisely the right to equal treatment and the prohibition of discrimination with respect to

h) access to and provision of healthcare,

Section 10

(1) In the event of a violation of the rights and obligations following from the right to equal treatment or of discrimination, the person affected by such act shall have the right to claim before the courts, in particular, that the discrimination be refrained from, that consequences of the discriminatory act be remedied and that (s)he be provided with appropriate compensation.

(2) Should a remedy under paragraph 1 above not appear sufficient, particularly due to the fact that a person’s reputation or dignity or respect in society has been harmed, the person shall also have the right to monetary compensation for non-material damage.

(3) The amount of the compensation under paragraph 2 above shall be assessed by the court taking into account the seriousness of the damage and the circumstances under which the right was violated. Section

2(3)

(3) Direct discrimination shall mean an act, including omission, where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on grounds of race, ethnic origin, nationality, sex, sexual orientation, age, disability, religion, belief or opinions.

Section 3(1)

(1) Indirect discrimination shall mean an act or omission where a person is put at a disadvantage compared to other persons on any of the grounds specified in Section 2 (3) above on the basis of an apparently neutral provision, criterion or practice. Indirect discrimination shall not be taken to occur if such a provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Section 5(2)

(2) Provision for equal treatment shall mean the adoption of measures that are a precondition for effective protection against discrimination and that can be required, taking into consideration good morals, and given the circumstances and personal situation of the party which is to provide for equal treatment; provision for equal opportunities shall also be considered as provision for equal treatment.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
• Dialogue between high court - lower instance court at national level

• Case C-303/06, Coleman
• Case- 54/07, Feryn

• V.C. v Romania App. No. 47848/08

Conform interpretation with EU law as interpreted by the CJEU.

To receive guidance on the interpretation of the principles of effective judicial protection and proportionality.

Broad interpretation of the term “person affected by such act”.

Additional notes on the decision