Harald Christian Scheu

The Issue of Burden of Proof in the European Anti-Discrimination Law

Jurisprudence 4/2013 Section: Articles Page: 18-24

Keywords: burden of proof, antidiscrimination, case law, european law

Abstract: The article deals with the reversal of the burden of proof in European anti-discrimination law and highlights some of the problematic aspects of this institute. As a result of activist jurisprudence the reversal of the burden of proof was transformed from a fine instrument designed for special cases only into a standard tool that shall be applied in all cases of alleged discrimination. Two relatively recent cases decided by the U.S. Supreme Court and the Court of Justice of the EU demonstrate how the application of rigid rules of evidence in the current anti-discrimination law may lead to absurd consequences.