Challenges to the effective implementation of EC gender equality law in the Czech Republic – an...

Gleichstellung in der Arbeitswelt im internationalen Vergleich

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Challenges to the effective implementation of EC gender equality law in the Czech Republic – an early analysis

BARBARA HAVELKOVÁ

Abstract Deutsch

Dieser Beitrag analysiert die Umsetzung des EU-Gleichstellungsrechts und die Anwendung von Gleichstellungsnormen durch die Gerichte in der Tschechischen Republik. Er identifiziert mehrere Hindernisse für eine wirksame Implementation der Gleichstellungspolitik. Zunächst wird festgestellt, dass der tschechische Gesetz-geber weniger das Ziel verfolgt, Gleichstellung zu verwirklichen, sondern vielmehr die Erfüllung der Pflichten als EU-Mitglied anstrebt. Diese Haltung hat dazu geführt, dass der Erlass eines umfassenden Anti-Diskriminierungsrechts gescheitert ist. Sie hat aber auch negative Auswirkungen auf die Qualität der Gesetzgebung und ihre Wirksamkeit. Ausserdem werden gravierende Mängel in der Rechtspre-chung der Gerichte festgestellt. Diese werden als Konsequenz des rechtlichen For-malismus der tschechischen Gerichte verstanden, die den Wortlaut von Rechts-normen mechanistisch anwenden und die Ziele der Gesetzgebung und die Realitäten der Geschlechterdiskriminierung völlig ausser Acht lassen.

Abstract English

This article analyses the transposition of EC equality law and the application of equality norms by the courts in the Czech Republic. It identifies several challenges to effective implementation of equality policy. It submits, first, that the Czech legislature’s actual goal is not the achievement of equality but the fulfilment of EU membership obligations. It argues that this attitude has resulted in the failure to adopt a comprehensive anti-discrimination law and also has a negative impact on the quality of the legislation and its effectiveness. Second, it identifies serious defi-ciencies in the courts’ judgments and considers these to result from Czech judges’ adherence to legal formalism. As a consequence, the courts mechanically apply the wording of the legal norms while completely disregarding the legislative aims and the realities of gender discrimination.

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Contents

I. Obligations under EC law 97 II. Transposition in the Czech Republic 99

1. Transposition of EC sex equality law: an overview 99 2. Current transposition flaws 101 3. The proposed anti-discrimination law 103 4. Anti-discrimination bill – parliamentary process 105 5. Analysis of the failure of the first anti-discrimination bill 105

III. Application by the Courts 107 1. Access to the courts 107 2. Examples of judicial application of anti-discrimination law 108 3. Problems of judicial application 112

IV. Conclusions 113

Accession of the Czech Republic to the European Union has brought about major changes to Czech law on gender equality.1 Implementation of the Community law provisions in this area must be regarded as inadequate, however, as regards their transposition into domestic law and the other stages of implementation.2

Due to constraints of space, this article will consider only two elements of implementation – transposition of the Community law provisions and application of equality norms by the courts. First, the Member States’ obli-gations under EC equality law will be briefly sketched. An overview of its transposition in the Czech Republic will then be offered and problems in the transposition process identified. Particular attention will be paid to the failure to adopt a specific law on anti-discrimination. The article will at-tempt, in particular, to identify the consequences arising from the fact that

1 Detailed support for this view – by reference to other Member States – may be found

in ZYSK, 12 European Law Journal 2006, 371 and LEHOCZY, 12 Maastricht Journal of European and Comparative Law 2005, 467.

2 PHEDON NICOLAIDES distinguishes between six stages of implementation: transposi-tion, application, enforcement, compliance, policy evaluation and policy reform (NICOLAIDES, Enlargement of the EU and Effective Implementation of its Rules). FRANCIS SNYDER speaks of effectiveness and stresses the following aspects for estab-lishing effectiveness of EC law on national level: the transposition of Community di-rectives into national law; the implementation of Community secondary legislation or of national transposing or implementing legislation within or by the national civil service; the use of Community law by economic undertakings; recourse to litigation in a national court based on Community law; the enforcement of Community law by the national courts. SNYDER, 56 Modern Law Review 1993, 25.


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most legislative activity in the field results directly from obligations im-posed by way of EU membership. An analysis of the application of anti-discrimination norms by the courts will follow. The hurdles in access to judicial protection and the courts’ existing case-law will be analyzed. Par-ticular attention will be paid to the issue of whether the quality of judg-ments can be expected to increase as judges become more familiar with anti-discrimination norms or whether application problems will persist because they are an inherent consequence of the Czech judges’ adherence to legal formalism.

I. Obligations under EC law

Between 1957, when the equal pay principle was incorporated as Article 119 of the Treaty Establishing the European Economic Community (now Article 141 EC), and 2000 the EC adopted eleven directives3 implementing the principle of equality between men and women in the areas of employ-ment, work and social security. Following the insertion of a new legal basis for equality legislation, Article 13 EC, as a result of the Treaty of Amster-dam, the European Union’s equality acquis has been expanded dramatically. Article 13 EC empowers the Community institutions to take appropriate action to combat discrimination based on sex, racial or ethnic origin, relig-ion or belief, disability, age or sexual orientation. Since 2000, five new di-rectives4 have been adopted, extending protection both in terms of pro-

3 Details may be found in the European Commission’s list at http://ec.europa.eu/

employment_social/gender_equality/legislation/legalacts_en.html, last visited on 20 February 2007.

4 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, the «Race Directive», OJ L 180, 19.7.2000, p. 22, which was required to be implemented by 19 July 2003; Council Directive 2000/78/EC of 27 November 2000 establishing a general frame-work for equal treatment in employment and occupation, the «Framework Directive», OJ L 303, 2.12.2000, p. 16, which was required to be implemented by 2 December 2003; Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employ-ment, vocational training and promotion, and working conditions, the «Amending Directive», OJ L 269, 5.10.2002, p. 15, which was required to be implemented by 5 October 2005; Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and sup-ply of goods and services, OJ L 373, 21.12.2004, p. 37, which has to be implemented by 21 December 2007 and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportu-nities and equal treatment of men and women in matters of employment and occu-

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tected grounds and as regards the scope of protection.5 In the area of equal-ity between men and women, different forms of discrimination were better defined and effective judicial protection enhanced by the Amending Direc-tive 2002/73/EC6 and the area of access to goods and services was addressed by Directive 2004/113/EC.7

It should be pointed out that during the accession process,8 and also in regular compliance monitoring by the European Commission, only trans-position and not effective implementation of directives is in practice exam-ined.9 Literal transposition, or rather «transplantation», of Community pro-visions into national legal orders alone is, however, insufficient for the implementation of equality policy. Of equal importance is application and enforcement of the national provisions by public authorities, encourage-

pation (recast), OJ L 204, 26.7.2006, p. 23, which has to be implemented by 15 Au-gust 2008.

5 Also referred to in this article as the «new millennium equality acquis». 6 See above footnote 4. 7 It should be noted that the rapidly changing equality acquis caused transposition

problems even in certain «old» Member States (the ECJ found Germany, Luxembourg and Austria to be in breach of their obligations under both the Race and the Frame-work Directives and Finland to be in breach as regards the Race Directive). It is thus not surprising that the 2004 or 2007 new Member States, such as the Czech Republic, also had difficulties in properly harmonising their laws.

8 See, for example, the European Commission’s Regular and Progress Reports on the Czech Republic’s progress towards accession between 1998 and 2003 available at: http://ec.europa.eu/enlargement/archives/enlargement_process/past_enlargements/eu10/czech_republic_en.htm, last visited on 31 May 2007.

9 This is true also for the monitoring of Member State «implementation» by the Euro-pean Commission. Administrative and judicial practices are rarely scrutinized and sanctioned. Admittedly, the Commission once brought proceedings for the de facto non-implementation of Directive 75/442/EEC on the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste, Case C-365/97 Commission v Italian Republic [1999] ECR I-7773. In paragraph 68 of the judgment, the Court stated: «[…]if the situation [of non-conformity with the objectives laid down in a directive] persists and leads in particular to a significant deterioration in the environment over a protracted period without any action being taken by the competent authorities, it may be an in-dication that the Member States have exceeded the discretion conferred on them by that provision.» That principle, however, can hardly be applied to the anti-discrimination field. First, it would seem that the Commission and ECJ were con-cerned by the particular gravity of the breach in that case. Second, the goal of equality is more general and consequently not fully achievable as a matter of practice under any circumstances in any of the Member States. Moreover, notwithstanding the fact that the Commission brought enforcement proceedings against a Member State un-der Article 226 EC in a situation where a directive was properly transposed but ig-nored by the administrative bodies, it remains doubtful whether it would ever do so if it were the courts which were said to be misapplying the harmonized national law.


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ment of compliance by private actors and support for institutions which assist victims in bringing their claims.

II. Transposition in the Czech Republic

1. Transposition of EC sex equality law: an overview

The Community law provisions on equality between men and women have been largely transposed into Czech employment and labour law. Harmoni-sation already began in the late 1990s. Two waves of activity can be distin-guished. The first began with an amendment to the Act on Employment10 introducing a prohibition on discrimination in 1999.11 A year later, in 2000,12 a Euro-amendment to the Labour Code13 was adopted which con-tained an equal treatment obligation as well as a prohibition on both direct and indirect discrimination.14 Also in 2000, laws on wages in both the pri-vate15 and the public16 sector were amended17 to include an equal pay clause. The Code of Civil Procedure18 was amended by way of a provision shifting the burden of proof in sex discrimination cases.19

A second wave of approximation occurred in 2004. A new EU-compliant Act on Employment was adopted.20 In addition, the Labour Code was amended by way of provisions transposing the Amending Directive:21 defi-nitions of direct and indirect discrimination, harassment, sexual harass-

10 Act No 1/1999 Collection of Laws (Coll.) on Employment. 11 Act No 167/1999 Coll. amending the Act on Employment. The prohibition was

clarified to include direct and indirect discrimination by way of Act No 220/2002 Coll.

12 Act No 155/2000 Coll. 13 Act No 65/1965 Coll. 14 Of interest is the breadth of discrimination grounds specified in both employment

and labour laws: race, colour of skin, sex, sexual orientation, language, faith and re-ligion, political or other conviction, membership or activity in political parties or movements, trade unions and other associations, nationality, ethnic or social origin, property, birth, health condition, age, marital or family status or family obligations. This list is broader than both the explicitly protected characteristics in Article 3(1) of the Czech Charter of Fundamental Rights and Basic Freedoms (Act No 2/1993 Coll. – a law with constitutional rank) and the grounds protected under the EC directives.

15 Act No 1/1992 Coll. on wages. 16 Act No 143/1992 Coll. on remuneration in the public sector. 17 Act No 217/2000 Coll. 18 Act No 99/1963 Coll. 19 Act. No30/2000 Coll. 20 Act No 435/2004 Coll. on Employment. 21 See above footnote 4.

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ment, and prohibitions on instructions to discriminate and on victimisa-tion of complainants were added to the Code and measures permitting positive action were introduced. Anti-discrimination provisions were added also to the State Service Act22 and to the Act on Service in the Armed Forces.23 Both of these laws were intended to enter into force on 1 January 2005. Due to financial problems, however, their entry into force has been repeatedly postponed – until 1 January 2007 for the Act on Service in the Armed Forces and until 1 January 2009 for the State Service Act.

In January 2005, the Government proposed a comprehensive anti-discrimination bill. Whilst the proposal was primarily motivated by the need to transpose the new Race and Framework Directives, in addition, it envisaged the transposition of some outstanding directives on equality be-tween men and women, such as, for example, Directive 86/613/EEC on equal treatment between men and women engaged in a self-employed ca-pacity24 and Directives 79/7/EEC and 86/378/EEC (as amended by 96/97/EC)25 in the field of social security.26 Moreover, the Government’s proposal recognised that existing regulations were fragmented and hetero-geneous.27 That diffuse approach resulted in divergence between the scope of rights, obligations and possible claims depending on the legal source concerned. Understandably, the adoption of a comprehensive anti-

22 Act No 218/2002 Coll. regulating employment in the public service. 23 Act No 361/2003 Coll. regulating employment relationships among police officers,

firefighters, customs officers, prison guards, and members of the intelligence services. 24 Directive 86/613/EEC on the application of the principle of equal treatment between

men and women engaged in an activity, including agriculture, in a self-employed ca-pacity, and on the protection of self-employed women during pregnancy and moth-erhood, OJ L 359, 19.12.1986, p. 56.

25 Council Directive 79/7/EEC of 19 December 1978 on the progressive implementa-tion of the principle of equal treatment for men and women in matters of social secu-rity, OJ L 6, 10.1.1979, p. 24 and Council Directive 96/97/EC of 20 December 1996 amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes, OJ L 46, 17.2.1997, p. 20.

26 The Government bill did not transpose Directive 2004/113/EC on access to and supply of goods and services as it did not require implementation until 21 December 2007. See above footnote 4.

27 For example, the definition of sexual harassment differed in various legal instru-ments. In the Labour Code, the Act on Service in Armed Forces and the Employment Act, the definition of sexual harassment has been aligned with that of the Amending Directive 2002/73/EC. The formulations varied, however, and none corresponded exactly with the Czech wording of the Directive. The Act on State Service contained a more general ban on behaviour violating a person’s dignity consistent with the state of EC law prior to the adoption of the Amending Directive.


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discrimination law in order to transpose the new millennium equality ac-quis is an approach which has been taken by many EU Member States.28

The anti-discrimination bill was approved by the Chamber of Deputies on 7 December 2005, but struck down by the Senate on 26 January 2006. In accordance with the Czech constitution, the Chamber of Deputies could have then outvoted the Senate by an absolute majority (101 out of a total of 200 deputies). Despite the government coalition numbering some 103 deputies at the time of the vote, absences, abstentions and votes against the bill from some of the Christian Democratic deputies, resulted in a failure to adopt the bill.29

2. Current transposition flaws

As regards EC equality law transposition in general, according to the Com-mission’s 2005 Annual Report, the Czech Republic was the single most non-compliant Member State.30 As a result of the failure to adopt the anti-discrimination bill, that breach of the obligation to transpose EC equality directives is ongoing. Some areas, such as self-employed persons, social security law and access to goods and services, remain outside the scope of

28 Austria, Belgium, Finland, Ireland, Hungary, the Netherlands, Slovakia, Spain and

most recently Germany have adopted that approach. HUMAN EUROPEAN CONSUL-TANCY AND MIGRATION POLICY GROUP, Report, 13.

29 The bill received 83 votes in the second vote on 23 May 2006, whereas in the first vote on 7 December 2005, 92 deputies voted for the bill. The main opponents of the bill were the Civic Democratic Party, for ideological as well as substantive reasons, and the Communist Party, whose main concern was equal treatment for Communist regime collaborators, and which, thus, made its support conditional upon repeal of the screening law of 1991 (lustra ní zákon) which prevents officials and collaborators of the Communist State Security Service and high-ranking communist officials from holding specified government offices.

30 In the Commission’s 2005 Annual Report only the Czech Republic figures as a State in breach of both the Race and Framework Directives. Of the ten directives addressing equal treatment mentioned in the Annual Report, infringement proceedings against the Czech Republic were initiated in the case of nine of those directives, which makes it the single most non-compliant Member State in this area. None of those cases has yet reached the stage of an action before the ECJ. (EUROPEAN COMMISSION, 23rd An-nual Report and its Statistical Annex, 181 – 195). A disclaimer should be added to this data. First, the data is over a year old, thus it may be presumed that some enquir-ies of the Commission have been satisfactorily answered by the Czech Government. On the other hand, those answers may have referred to the anti-discrimination bill, which was in the legislative pipeline in 2005 but ultimately failed to be adopted. Second, the reason for the commencement of Article 226 EC proceedings is often a lack of communication concerning transposition and not the lack of transposition it-self.

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protection from discrimination. In addition, the institutional framework required by the Directives,31 that is to say, establishment of an independent body, is still absent.

Another consequence of the failure to adopt the anti-discrimination bill is a reduction in the existing level of protection with the de facto abrogation of previously guaranteed rights. In May 2006, the Parliament adopted a new Labour Code.32 The Code was drafted on the assumption that the anti-discrimination bill would become law and accordingly contained only a very general obligation of equal treatment and prohibition on discrimina-tion33 and neither defined basic terms (direct and indirect discrimination, harassment, sexual harassment, or instructions to discriminate) nor listed available remedies, but instead cross-referred to the non-existent anti-discrimination statute.34 As a result, the level of protection in the labour field was reduced from 1 January 2007 when the new Labour Code entered into force.

A third breach of transposition obligations consists in the retention of some rigorous protectionist provisions, such as the prohibition on the employ-ment of women underground, which was contained in the old Labour Code35 and was included in the new Labour Code’s Sec. 238.36

A fourth problem is that some transposition is only notional. For several years this has been the case with regard to the Act on State Service and the Act on Service in the Armed Forces. On paper, those laws were EU-compliant from their date of adoption (2002 and 2003 respectively). As we have seen, however, their entry into force has been repeatedly postponed, and even today the State Service Act is still not in force. For state employees, to whom the Labour Code applies until the State Service Act enters into force, this has not been a problem. Until 1 January 2007 when the Act on Service in the Armed Forces entered into force, however, the employment relationships of members of the police or prison services were not governed by any anti-discrimination provisions.

All of the above problems can be solved relatively easily, the first and the second, in particular, through the final adoption of an anti-discrimination

31 Article 8a of the Amending Directive and Article 13 of the Race Directive, see above

footnote 4. 32 Act No 262/2006 Coll., Labour Code. 33 Sec.13(2)(b) and (c) of Act No 262/2006 Coll. 34 Sec. 16 (2) and Sec. 17 of Act No. 262/2006 Coll. 35 Sec. 150 of Act No 65/1965 Coll. 36 Act No 262/2006 Coll. The reason for retention of this provision are international

obligations of the Czech Republic resulting from ILO Convention (No 45) concern-ing the Employment of Women on Underground Work in Mines of all Kinds.


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law. A new proposal for such legislation is being prepared by the current centre-right government. A draft law was discussed at the meeting of the Governmental Legislative Council on 3 May 2007 and is now on its way to the Cabinet.

Possibly the most serious problem with transposition, however, is the ab-sence of a genuine interest among the political elite to achieve the main goal of the legislation, which is to effectively guarantee and promote equal-ity. This flaw is likely to persist even in the process of adopting a new anti-discrimination law. To illustrate the claim concerning the lack of top-level political will towards equality, the adoption process relating to the first anti-discrimination bill will be examined more closely in the following text.

3. The proposed anti-discrimination law

The first proposal for an anti-discrimination law was drafted by the Gov-ernment Council of Human Rights and presented to the Cabinet in 2004. The proposal was relatively generous37 in terms of the protected grounds,38 the scope of protection and institutional mechanisms. The proposal in-cluded, for example, prohibition on discrimination by association and pre-sumed discrimination, neither of which is specifically mentioned in the Directives,39 and allowed for positive action, which the Directives permit

37 The proposal’s far-reaching character is probably connected to the fact that the body

responsible for drafting the bill was the Government Council of Human Rights. Law-yers involved in its drafting have indicated that the Council was concerned to ensure the effectiveness of the legislation and tried to reflect not only EC law obligations as interpreted by the case-law of the ECJ, but also UN treaties and the Czech Charter of Fundamental Rights and Basic Freedoms (Act No 2/1993 Coll.). Written interview with Martina Štěpánková, former lawyer of the Government Council of Human Rights, 12 February 2007.

38 The Bill (Sec. 2(3)) prohibited indirect discrimination on the limited grounds speci-fied in the EC Directives, i.e. race and ethnic origin, sex, sexual orientation, age, dis-ability, religion, but prohibited direct discrimination on various other grounds: lan-guage, political or other conviction, nationality, membership or activity in political parties or movements, trade unions and other associations, social origin, property, birth, marital or family status or family obligations or other status. This list is broader than both the explicitly protected characteristics in Article 3(1) of the Czech Charter of Fundamental Rights and Basic Freedoms (Act No 2/1993 Coll. – a law with consti-tutional rank) and the EC Directives. This seemingly profuse list was problematic, however, inasmuch as it contained a proviso permitting the justification of direct dis-crimination, which, admittedly, has its place in constitutional review of differentia-tion by the State but not in adjudication of private relations.

39 It is far from clear whether the Directives cover these two situations. A preliminary reference on that issue submitted by a British court in Case C-303/06 Coleman is cur-rently pending before the ECJ.

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but do not require. The proposal included two options for the establish-ment of an independent anti-discrimination body. The first proposed the addition of these matters to the competences of the Ombudsperson, the second proposed the establishment of a new entity: the Centre for Equal Treatment. Both suggestions proceeded on the basis that the body would be permitted to mediate between parties in discrimination cases. The proposal also contained an independent right for NGOs to bring cases where an in-determinate number of individuals were victims of an act of discrimination.

The Cabinet proved to be much less generous. It weakened the proposal in two significant ways. First, it removed the draft Sec. 1(2) and (3) which read: «Everyone has a right to equal treatment and protection from dis-crimination» and «Natural and legal persons have an obligation to guaran-tee equal treatment […].» In deleting those draft provisions, the Cabinet almost stripped the bill of its normative effect. Thereafter, with the excep-tion of provisions on remedies and an institutional framework, the bill essentially served only as a list of definitions. The Cabinet, possibly aware of the drawbacks that deletion entailed, amended also the wording of the very first Section of the proposal. It replaced the phrase «This statute regu-lates, in harmony with European Community law, the right to equal treat-ment…» with: «This statute transposes relevant norms of the European Community….» In order to fulfil EU membership obligations the Cabinet probably considered lip service all the more necessary the less the proposal in substance was a true transposition of EC equality law.

Second, of the two options for an independent body, the Cabinet decided to assign equality matters to the Ombudsperson. This alternative was cheaper and also far less appropriate in terms of the overall coherence of the system, as the Ombudsperson’s office handles complaints of maladmin-istration concerning public authorities but has no expertise in handling private disputes between individuals. The Cabinet’s decision not only harmed the effectiveness of the proposed legislation, but also provided ammunition to the bill’s critics in the Senate for whom the incoherence of the proposed solution was a reason to vote down the bill.

In evaluating the adoption process, it is important to note the diametrical difference in approach between the public administration in the form of the Government Council of Human Rights as drafters of the bill, and the politi-cal branch of the executive. Whereas the civil servants attempted an effective implementation of EC law and of the principle of equality, the politicians paid lip service to the EC law obligations without any true concern as to the guarantees the law would actually provide.


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4. Anti-discrimination bill – parliamentary process

Several remarks should be made concerning the arguments presented for and against the bill. The coalition government’s main argument for adop-tion of the bill was the Czech Republic’s obligations towards the EU. This can be illustrated by interventions of the Deputy Prime Minister and Minis-ter of Justice Pavel Němec in both chambers:40 «I would like to remind you what this law is about. This law actually deals with implementing the Czech Republic’s international obligations, which are binding on the Czech Re-public, and introduces them into its legal order.»41 This observation is sup-ported by the statement of Anna Čurdová,42 a Social Democratic Deputy, who reports that the actual content of the bill was never a matter of discus-sion for the coalition’s strongest party, the Social Democrats («ČSSD»). She claims that most of her colleagues were persuaded to vote in favour of the bill by the obligation to implement EC law.

Aside from their strong ideological opposition as well as substantive argu-ments against the bill, its opponents, mostly Civic Democratic Party («ODS») MPs, managed to turn the EU membership obligation argument in their favour, using it to launch a more general attack on disproportionately extensive regulation at the EU level. Civic Democratic Senator Miroslav Škaloud stated: «This argument [that adoption of the anti-discrimination bill was a EU membership obligation] shows how much European integra-tion is retreating from its original goals, [...] of liberalisation of trade be-tween Member States. The effort to push through an anti-discrimination law cripples our decision-making freedom and the flexibility of our market economy and proves indirectly that the principle of subsidiarity often re-mains unfulfilled.»

5. Analysis of the failure of the first anti-discrimination bill

It is submitted that one of the greatest reasons for the bill’s failure was the lack of explanation and genuine support for the legislation. The Govern-ment proposed the bill as an EC law obligation. It did not build a separate

40 Introduction of the Government’s anti-discrimination bill on 10 February 2005 in

the Chamber of Deputies, on 26 January 2006 in the Senate, and again in the Cham-ber of Deputies 15 March 2006, available at www.psp.cz and www.senat.cz, last vis-ited on 16 March 2006.

41 Chamber of Deputies session, debates of 15 March 2006, available at http://www. psp.cz/eknih/2002ps/stenprot/054schuz/s054224.htm#r1, last visited on 16 March 2006.

42 Written interview with Anna Čurdová (MP for SSD), 12 March 2007.

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case for equality legislation. It did not indicate why freedom from discrimi-nation was important for social, economic and political participation and the well-being of individuals, nor did it demonstrate possible benefits for society as a whole. This finding is even more striking when we consider that the strongest party in the government was the Social Democratic Party, a party which in most political systems represents the school of thought most favourable to the achievement of substantive equality and participation for all.

In retreating from the battlefield on the ideology and substance of the bill before the debate even began, the ČSSD left the opposition ODS room to mount an aggressive attack on the bill’s provisions.43 Having secured the argument in terms of content, the ODS – as we have already seen – then frontally attacked the notion of an EC law obligation.

The second coincidental but probably crucial reason for the bill’s failure was a lack of discipline among coalition parties, as is apparent from the second vote in the lower house. When the Chamber of Deputies voted on the bill on 23 May 2006 after its rejection by the Senate, the Czech Republic stood a week away from a general election (3 – 4 June 2006). Accordingly, the first factor in the coalition’s incapacity to mobilise was most probably electoral worries. A likely additional factor was that the strongest coalition party, the ČSSD, which was expecting defeat, ceased to care about imple-menting EC law, as any ensuing breach of membership obligations would not have been its responsibility. As already argued, the party never cared seriously about the enactment of equal treatment legislation, thus, unsur-prisingly, it did not whip the coalition deputies into supporting the bill. Nor was there a serious likelihood that deputies of the other coalition par-ties had been persuaded by previous debates as to the bill’s significance in its own right. This demonstrated lack of genuine interest in achieving equality had serious consequences. It most probably was instrumental in the failure to adopt the bill. Even if the bill had been adopted, however, the indifference concern-ing the quality of the equality legislation would have had a considerable negative impact on its effectiveness. It has been argued elsewhere44 that the primary requirement for the effectiveness of legislation consists in a formu-lation of its desired effect on society, as only then can regulation be opti-

43 The Center for Economics and Politics (CEP), a conservative think-tank founded by

the current president, Václav Klaus, even held a one-day conference and published a brochure on the dangers of anti-discrimination legislation.

44 For a summary of legal sociology theories on law as an instrument of legal change see, for example, COTTERRELL, The Sociology of Law, 44-65.


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mised to achieve that effect (by choice of means, distribution of rights and obligations, institutional mechanisms, etc.). The European Community committed itself to the aims of achieving equality in pay, treatment and social security as essential parts of its social policy.45 At the national level, however, the Government’s actual aim was to bring Czech law into line with Community law. As a consequence of this, choices were made by the Cabinet or in the parliamentary process, such as assigning equality matters to the Ombudsperson or the removal of his/her competence to mediate by the Chamber of Deputies, which seriously undermined the prospects for success at further stages of implementation.

III. Application by the Courts

1. Access to the courts

There are several factors that deter victims of discrimination in bringing their cases before a court. Some are general in nature and others specific to the anti-discrimination field.

First, it must be pointed out that the judicial system in the Czech Republic is generally considered – correctly in my view – to be inefficient. KOLDIN-

SKA46 indicates that there are currently some 70,000 cases which have been pending for more than three years. There are also serious costs connected to litigation. This element is aggravated in anti-discrimination cases by the fact that the prospects of success in court, which might result in the award of legal costs to the victim of discrimination, are considered, rightly, to be non-existent (no case of sex discrimination47 has so far been won by the plaintiff).48 The situation is not remedied by the existence of NGOs who,

45 This can be seen from the amendment to Article 141 EC introduced by the Treaty of

Amsterdam, the adoption of a series of directives and soft law instruments, and the case-law of the ECJ, for example, in Case 149/77 Defrenne III [1978] ECR 1365, para-graphs 26 and 27 and Case C-50/96 Schröder [2000] ECR I-743, paragraph 57.

46 KOLDINSKA, 13 European Law Journal 2007, 251. 47 At least in those cases where the judgment is available to the author or has been

reported in the media. 48 This observation is confirmed by a recent case of discrimination at the University of

Western Bohemia in Pilsen. The University refused to enter into a contract of an inde-terminate duration with a young academic, a mother of three. The woman concerned challenged that conduct, considering it to be discriminatory. In bringing her claim, however, she eventually decided to use other labour law possibilities. She com-mented: «[both a friend of mine who is an attorney in Prague] as well as the lawyer, who represented me, concurred in the view that a claim based on discrimination

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according to Sec. 26(3) of the Code of Civil Procedure, can represent vic-tims of discrimination before a court where that activity is mentioned in the organisation’s statute. As yet, no association has informed the public on an amendment to its statute introducing such provision and on its ability to offer representation in court.

Whilst media reporting of the latest significant discrimination case (Čaušević – see below) has been relatively balanced, the stigma of being a complainer and the repercussions any anti-discrimination claim has on the relationship with the current or a potential future employer are eminently obvious and not specific to the Czech Republic.

Notwithstanding these hurdles the Ministry of Justice, which monitors liti-gation on discrimination, has reported a seemingly dramatic increase in the number of final judgments in the first half of 2006. The importance of this data should not be overestimated. Regrettably, it fails to reveal in favour of which party the courts gave judgment. Furthermore, it remains unclear whether this apparent increase in discrimination judgments does not sim-ply mask a change in the categorisation of claims by the individual courts.

Final judgments in civil cases – number of decisions49

Type of claim 2002 2003 2004 2005 1st half of 2006

sex discrimination and denial of women's specific rights

0 0 0 1 4

discriminatory dismissal 0 0 0 0 0

breaches of the equal pay principle 0 1 0 0 5

2. Examples of judicial application of anti-discrimination law

At present, any analysis of discrimination case-law in the Czech Republic will be, first, fragmentary and, second, preliminary. The fragmentary nature of such analysis results from the fact that court decisions are unpublished, with the exception of the Constitutional Court and certain higher court rulings.50 Thus, the only chance of obtaining access to judgments is through

would be difficult to prove and have minimal prospects of success.» Literarni noviny (Literary journal), 2007-9, 28 February 2007, 8.

49 The statistics are available at http://portal.justice.cz/ms/ms.aspx?j=33&o=23&k=399, last visited on 28 September 2006.

50 The Constitutional Court, the Supreme Court and the Supreme Administrative Court make their decisions electronically accessible (www.concourt.cz, www.nsoud.cz and www.nssoud.cz), whereas only selected judgments of the High Courts are published and lower court judgments are as a rule unpublished. In discrimination cases the Dis-


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attorneys or the plaintiffs themselves. The analysis must be considered pre-liminary because in some proceedings appeals or constitutional complaints are still pending. In any event, the small number of judgments – even where these are final – makes it difficult to discern any clear trends.51

The only publicly available ruling on gender equality is a decision of the Constitutional Court of June 2006.52 The Court was petitioned by a father who had been denied pension benefits by the Czech Social Security Ad-ministration. He challenged the provision in the Czech Act on Pension Insurance governing pension benefits for fathers in relation to a period of childcare. For that period to count for pension purposes, fathers had to register their time spent caring for a child within a period of two years after ceasing to be the child’s main carer. Mothers, on the other hand, were not subject to any time-limits on registering childcare periods and could inform the authorities years later when actually claiming their benefit. The Court declared this provision to be unconstitutional. It refused to accept the Gov-ernment’s arguments that the measure was justified by administrative and fiscal effectiveness. The Government stressed the difficulty in resolving pa-rental-leave disputes between mothers and fathers years after the facts oc-curred at the time when the parents reached pensionable age. According to the government, a provision ensuring legal certainty was required, and the administrative obligation on fathers to register constituted a less onerous burden for society53 than requiring both men and women to register. The Court rejected that view, concluding that there was no reasonable justifica-tion for the measure and – without actually applying the proportionality test – that the measure was at any rate disproportionate. The disappointing aspect of the case is not exactly its outcome. Many a scholar of legal gender studies would approve a decision to remove mother-only parental privi-leges. Rather, the reasoning is disappointing. The Court failed to deal with arguments of impact on men and women concerning this or any alternative

trict Courts are competent as first instance courts, with Regional Courts acting as ap-pellate courts. As a result, hardly any cases reach the High Courts on extraordinary appeal, and consequently virtually no judgment on discrimination stands a chance of being published.

51 In the area of discrimination on the basis of racial or ethnic origin, the situation is slightly different as some NGOs received grants for test projects.

52 Decision of the Czech Constitutional Court Pl. ÚS 42/04 of 6 June 2006, published as No 405/2006 Coll. In strict terms this decision is neither concerned with EC equal-ity law as such nor with national provisions which have been harmonised as a result of EC obligations.

53 The Court disregarded evidence that 99 % of parents who take parental leave are women.

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solution and ruled on justification and proportionality without specifically examining either.54

When we look at the decisions of the lower courts available to the author, the picture is even gloomier.

Recently, the District Court for Prague 1 and Prague City Court55 dismissed a pay discrimination claim stating that the work of the plaintiff and her comparator were not of equal value. The case was brought by an economist working for a firm of brokers on discovering that her male predecessor had on average earned some 6,400 euro annually more than she did. She took the view that she was better qualified for the job and that she performed a wider range of tasks. The employer responded by claiming that as a conse-quence of the sale of some funds, the plaintiff was performing fewer trans-actions and had taken over only some of the tasks of her predecessor. With-out hearing adequate evidence on their respective qualifications or on the number and content of tasks performed, the court reached the conclusion that «the workload of both workers was quantitatively and qualitatively different».56 According to the courts, the difference was to be found in the nature of the work: «[the plaintiff] carried out operative tasks whereas […her predecessor] executed strategic operations».

Both courts in this case clearly failed to apply the procedural obligation requiring the burden of proof57 to be shifted to the defendant. Without having actual evidence to that effect, the courts accepted the employer’s claims concerning the difference in quantity of work, as well as his stereo-typical statement on the difference in quality.

54 In another recent case concerning a shift in the burden of proof (the petition came

from a district court examining discrimination against Roma in access to services), the Czech Constitutional Court delivered a much more balanced judgment. It stated that the principle of equality did not require absolute mathematical equality between parties, but relative equality which had to reflect the different situations in which the parties found themselves. In a detailed analysis it determined as a legitimate goal the effective judicial protection for victims of discrimination, and examined the meas-ure’s proportionality, stressing that the shift in the burden of proof did not ensue automatically. Decision of the Czech Constitutional Court Pl. ÚS 37/04 of 26 April 2006, Coll. No 419/2006. For discussion see HAVELKOVÁ, 32 European Law Review, forthcoming autumn 2007.

55 Judgment of the District Court for Prague 1 of 14 March 2005, No 23 C 11/2003-70, unpublished, and judgment of Prague City Court of 1 March 2006, No 13Co 399/2005-101, unpublished. The following quotations are taken from the City Court’s judgment.

56 The only witness heard on that point indicated that he was unaware of the scope of the tasks which the plaintiff took over from her predecessor.

57 Article 133a of Act No 99/1963 Coll., Code of Civil Procedure.


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A complaint is currently pending before the Czech Constitutional Court alleging a breach of the right to due process (shifting the burden of proof) which may result in the decision of the lower courts being set aside.

In a more recent case attracting considerable media attention,58 an eco-nomic advisor, Mrs. Marie Čaušević, brought a discrimination claim against her employer, the heating supply company Pražská teplárenská. She alleged that the selection process for a financial manager’s position was tainted by sex discrimination, arguing that although she was the best qualified candi-date, she had not been promoted to that position. In a highly disturbing development, the court interpreted the right to equal treatment as applying only in respect of the conditions during the examination part of the selec-tion process and not in respect of the evaluation of candidates: «[…] the court found substantial differences in the appraisal of the candidates by the members of the board, however, since this evaluation was not based on objective measurement of knowledge but on subjective perception of the personalities of the candidates, these differences are natural. Moreover, […] the court did not consider the ‘quality’ of the candidates, i.e. their expertise, experience, etc., as a decisive element in the legal evaluation, as the law addresses only the difference in treatment of candidates and distinctions made on the basis of sex, as regards the opportunity to obtain the position to be filled.» What at all did the court examine, one may ask? It considered whether the set of questions was the same for all candidates and whether Mrs. Čaušević possibly had less time to answer them. It is unsurprising that this analysis did not lead the court to any conclusion of discrimination. No sensible 21st century employer and certainly not a well-advised heating giant such as Pražská teplárenská would make the mistake of clearly and undeniably requiring a woman to sit a test under substantially different conditions to her male competitors.

The courts’ complete abdication of their duty to engage in substantive judi-cial review beggars belief. Even more troubling, in the author’s view, is the certain likelihood that the District Court for Prague 7 and Prague City Court59 which upheld the first instance judgment on appeal are certainly not the only courts60 in the country which consider employers to have an

58 Judgment of the District Court for Prague 7 of 22 December 2006, No 26 C 25/2006,

unpublished. The following quotations are taken from that judgment. 59 The judgment was delivered on 23 May 2007 and is not yet available to the author. 60 This view is supported by an earlier decision of the Regional Court in Prague from 30

June 2003, No 36 C 64/2003. In a case of age discrimination in access to employ-ment, the judge stated: «the Court did not establish the reason for the rejection of the job application, because it is irrelevant for the appraisal of the case.» This judicial ap-proach undermines completely the anti-discrimination legislation, since in determing

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unbounded freedom in selecting their staff. The widespread notion that «every person is an unrepeatable individual […] and it is therefore impossi-ble to find that someone is better for a position than the other»61 renders success in discrimination cases all but impossible.

The courts’ complete failure to engage in substantive review will now most probably be brought before the Constitutional Court on a petition by Mrs. Čaušević.62

3. Problems of judicial application

In an earlier article on the subject,63 I argued that it was the novelty of the anti-discrimination provisions and their origin in Community law64 which caused problems for the courts. I would now argue that the main problem is one of legal formalism which embraces a preference for arguments based on a literal reading of the statutory text and a disregard for other arguments. Teleological interpretation of norms is especially absent from judicial rea-soning. In particular, the Čaušević case illustrates that the courts were not at all concerned with the reality of discrimination and were uninterested in the aim pursued by its legal prohibition – i.e. the elimination of subjective and unjustified decisions of employers based on prejudice. If it were other-wise, the courts would not have limited their review to a mere examination of the formal conditions for the selection procedure. This conclusion is disturbing, as it signifies that the courts not only need to become better acquainted with the new provisions but also need to embrace a very differ-ent style of judicial reasoning in order to arrive at correct, just and dignified judgments.

whether discrimination has occured it is crucial to establish the reason for the differ-ence in treatment.

61 From the Judgment of the District Court for Prague 7 of 22 December 2006, No 26 C 25/2006, unpublished.

62 Information received by e-mail from PAVLA BOUČKOVÁ, director of the Counselling Centre for Citizenship, Civil and Human Rights in Prague, 31 May 2007.

63 HAVELKOVÁ, 2 Croatian Yearbook of European Law and Policy 2006, 299. 64 At least three potential problems may be identified – first, the obligation in certain

circumstances to apply EC law directly in horizontal relations (for example, Article 141 EC in equal pay cases); second, the obligation to consider the case-law of the Court of Justice and third, the fact that some transpositions were «transplants» or «translations» of EC norms and as such are not easily comprehensible to a Czech lawyer.


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IV. Conclusions

This article argued that there are many challenges to the effective imple-mentation of equality policy in the Czech Republic. In addition to the fact that great areas of private legal relations remain unprotected as large parts of the EC equality acquis remain untransposed, the problems caused by the legislature’s goal not being the achievement of equality but the fulfilment of membership obligations were examined and stressed. It was argued that this indifference towards the quality and utility of equality legislation weak-ens its effectiveness at the stages of application and enforcement. Moreover, it was demonstrated that the problem relating to the quality of the legisla-tion does not lie with the public administration but with the political part of government.

Furthermore, two recent cases were used to illustrate the difficulties experi-enced by the courts in the Czech Republic in the interpretation of the legal provisions and in the assessment of facts in discrimination cases. Serious misunderstandings concerning both substantive and procedural provisions were identified. The argument was advanced that the deficiency was caused less by the novelty of the anti-discrimination provisions than by legal for-malism, which results in courts mechanically applying their understanding of the legislative wording and completely disregarding the aims of the legis-lation and the realities of gender discrimination.

At this stage, it is difficult to assess which of the problems are more likely of being overcome first, those of a general nature (such as the overload of the Czech judicial system or the legal formalism of judges) or those more closely connected to the equality norms (such as indifference towards equality laws on one side of the political spectrum or ingrained rejection on the other).

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