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The Burden of Proof and Indirect Discrimination

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Chapter Summary

This chapter examines the provisions of the European Union (EU) Directive on the Burden of Proof 1997, as well as the case law of the Court of Justice. The general principle with regard to the burden of proof in litigation is that it lies with the plaintiff:-actori incumbit probatio. However, this principle presents insurmountable problems in discrimination cases. The issue of the burden of proof arose in the Danfoss case 1989. A collective agreement between a staff union and an employers' association provided for the same basic minimum wage for all workers in the same pay category. The burden of proof thus shifts to the employer once a presumption of direct or indirect discrimination is established by the employee in all claims of unequal pay or unequal treatment in conditions of work, coming within the scope of Article 3 of the Directive on the Burden of Proof 1997.

Keywords: burden of proof; Court of Justice; European Union (EU) case law; indirect discrimination



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