Implementation of EU standards into national legislation is at the forefront of Ukrainian Parliament’s activities. Some of them, like those connected with a visa-free regime, receive much attention. We decided to examine legislative changes, which are not at the top of political agenda. It turned out that certain provisions of EU directives are either incorrectly implemented or totally ignored.
The Case of Incorrect Implementation
Several EU anti-discrimination directives contain a provision, whose purpose is to shift the burden of proof from the plaintiff to defendant in discrimination cases, where it is usually very difficult for the claimant to prove the violation of his rights.
For example, Article 8 of Directive 2000/43/EC obliges states to ensure that when persons, who consider themselves wronged
establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
On 13 May 2014, to implement this principle into national legislation, Ukrainian Parliament introduced an amendment to Article 60 (1) of Civil Procedure Code (the “Amendment”), which provides as follows:
[i]n discrimination cases the plaintiff must bring actual data confirming that discrimination took place. If such data are brought, the burden to prove their absence lies with the defendant.
Contrary to EU legislation, which only requires the plaintiff to demonstrate the presumption of discrimination, the Civil Procedure Code of Ukraine obliges to prove that discrimination took place.
The initial version of the amendment was in principle identical:
[i]f the plaintiff brings actual data confirming that discrimination took place, the burden to prove the groundlessness of claims in this regard lies with the defendant.
Concerning this version of the provision, the Central Scientific Experts Office of Ukrainian Parliament stated in its Conclusions that it does not support the introduction of proposed amendment since its content is merely an interpretation of general rules on the duties of proof for a specific category of cases. Nevertheless, deputies decided to alter only the second part of the article, which did not change its logic.
Moreover, the wording became even worse. From the Amendment, it follows that the defendant would have to prove the absence of a fact, whose existence the claimant had already confirmed. It is more reasonable that in a situation where a fact is already established to the satisfaction of the court, the defendant has to demonstrate that a particular action does not amount to discrimination.
The legislation of the Republic of Macedonia, the EU candidate country, contains a similar provision under which the plaintiff must present “facts and evidence from which the act or action of discrimination can be established”.
In the Report of the European Commission, such wording was described as “contrasting with the Directives”.
The jurisprudence of the courts in EU states once more confirms the inadequacy of the Amendment. In Mitchell v Southern Health Board the Irish Labour Court interpreted a provision of the Directive 97/80/EC, which is identical to Article 8 of Directive 2000/43/EC. The Court stated that it is not necessary for the plaintiff to prove that discrimination is the only or most likely explanation for established facts; it is enough to demonstrate that the presumption of discrimination is one of the inferences, which can be drawn.
The Spanish Constitutional Court explained that for the burden of proof to shift the plaintiff must prove “the existence of an indication that generates a reasonable suspicion, appearance or presumption in favour of such an affirmation”.
Therefore, by employing awkward wording Ukrainian Parliament failed to implement special burden of proof rules. As a result, para 2 of Article 60(1) of Ukrainian Civil Procedure Code lacks normative value, and discrimination cases are still subject to the general burden of proof principles.
The Case of Partial Non-Implementation
The Ministry of Social Policy developed a Plan for implementation of the Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services (“Gender Directive”). The document lists a set of organizational and law-making measures that should be taken to fulfil the requirements of each substantive provision of Gender Directive. However, the Plan does not even mention Article 5, which reads as follows:
Member States shall ensure that in all new contracts concluded after 21 December 2007 at the latest, the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial services shall not result in differences in individuals’ premiums and benefits.
In other words, it shall be prohibited for insurance companies to use gender to justify different premiums and benefits for men and women.
We submitted a request for information to the Ministry of Social Policy under the Law of Ukraine “On Access to Public Information” asking it to clarify why Article 5 is not included in the Plan.
In an answer to our request representatives of the Ministry argued that Ukrainian legislation already deals with questions contained in Article 5 of Gender Directive. Thus, in the Ministry’s view, it does not need to be implemented.
Experts referred to Article 20 of the Law of Ukraine “On ensuring equal rights of women and men”, which stipulates that worsening the status of individuals of any sex in the sphere of social insurance shall be inadmissible. However, this provision addresses only discrimination in social protection, which is dealt with in Article 4 of the Council Directive 79/7/EEC. In contrast, Gender Directive applies to both private and public sectors.
The answer also mentions Article 6 of the Law of Ukraine “On ensuring equal rights of women and men”, which prescribes that sexual discrimination shall be prohibited. Clearly, the existence of such a general provision cannot be interpreted to indicate that Ukrainian legislation complies with Article 5 of Gender Directive. Moreover, neither current Law of Ukraine “On insurance”, nor new Draft Law “On insurance”, which was approved by the parliament in the first reading, do not contain any provisions related to sex discrimination.
Another evidence of the fact that Ukraine failed to reach objective set out in Article 5 of Gender Directive is that insurance companies, in particular, ASKA, AXA, MetLife, and UNIQUA, do use sex as one of the factors in calculation of premiums and benefits.
Of course, it may be argued that the deadline for implementation of Gender Directive has not yet expired, but from the Plan and the answer of the Ministry, it seems that at present Ukrainian authorities are not going to implement the unisex rule for insurance premium and benefits. Nevertheless, if Ukraine is willing to move towards the EU, it will have to duly fulfil obligations undertaken in the EU-Ukraine Association Agreement. Thus, in the process of future implementation of Gender Directive Ukraine should, as it is stated in Article 153(2) of the Association Agreement, pay due regard to the case law of the Court of Justice of the European Union (the “CJEU”).
The point is that, initially, the para 2 of Article 5 of Gender Directive allowed derogation from the unisex rule if the use of gender as a determining factor in the assessment of risk was based on accurate actuarial and statistical data. Such opt-out clause was declared invalid by the CJEU in Test-Achats judgment. The Court considered it to work against the purpose of Gender Directive, which is the achievement of equal treatment between men and women. Therefore, Ukraine should take into account this development of EU acquis and refrain from allowing similar derogation in its legislation.
It remains unclear whether demonstrated examples of mis-implementation of EU law in Ukraine are caused by the incompetence of public servants or lobbyist groups’ efforts. In any case, measures should be taken to remedy existing flaws in approximatization process and preclude future mistakes. Otherwise, a lot of “done” marks in governmental reports would turn out to be a mere declaration.
 See Farkas and O’Farrell, Reversing the burden of proof: Practical dilemmas at the European and national level, European Commission, December 2014, p. 60
 See Kevin Duffy, Shifting the Burden of Proof in Discrimination Cases, EU Gender Equality Law Seminar for the Judicary, ERA 7th –8th May 2012
 Sentencia Tribunal Constitucional (Constitutional Court Decision), 22 October 2001, 207/2001 cited in Farkas and O’Farrell, Reversing the burden of proof: Practical dilemmas at the European and national level, European Commission, December 2014, p. 70
 See ASKA Rules of voluntary life insurance (clause 7.8); AXA Rules of voluntary life insurance (clause 5.4); MetLife Rules of voluntary life insurance (clause 2.7); UNIQUA Rules of voluntary life insurance (clause 5.3).
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