After the Law on Equal Opportunities entered into effect the handling of discrimination cases in the public service field has changed from several aspects. Above all, the law specifically defines what is meant by someone not respecting the requirements for equal treatment in the process of purchasing goods and services– to quote the law. According to the law the violation of the requirements of equal treatment constitutes of the following – especially in case of premises open to the public, i.e. institutions of public catering, trade, culture and entertainment:
a) denial or omission of rendering services or selling goods,
b) rendering services or selling goods of a different quality to that available at the given place,
c) placing a sign or warning that could lead to the conclusion that someone or some people are exempted from being rendered services or sold goods.[1]
As already mentioned, perhaps the greatest “achievement” of the Law on Equal Opportunities is that it reverses the burden of proof, and does not force the party that has suffered injury to prove the fact of discrimination. So from here on the disco owner, bar owner has to prove that he has adhered to the requirements of equal treatment with respect to roma guests or that with respect to the given legal relationship is not obliged to observe it. The third novelty that is linked to the birth of the law is the establishment of the Equal Treatment Authority (EBH). We have already spoken about the operation of this authority but it is worth mentioning here, that with respect to the investigation of discrimination in the field of public services, the legislature did not make any changes in the competency of the consumer protection inspectorates. This means that at the moment, the person who experiences discrimination in the field of public catering, trade can choose to either turn to the Equal Treatment Authority or the regionally competent consumer protection inspectorate[2]. Interesting, that since the EBH has started operating we have experienced that the consumer protection inspectorates have breathed a sign of relief and despite the – for us unambiguous – regulations of the ETA, they are fending off all cases by saying that now the EBH is the only competent authority for investigating the observance of equal treatment. We would like to note that we also think it questionable whether it is worthwhile giving two administrative organs the same power, however, as long s the law so stipulates is, the consumer protection inspectorates should keep themselves to these rules.
The law stipulates a mutual obligation to give information for the administrative organs. Pursuant to this the Authority notifies the administrative organ that is competent in the issue by regulations of the separate law of the procedure, and this administrative organ also notifies the Authority. [3] Beyond that if a procedure has been started by any administrative organ (the EBH or any other authority) against someone due to the violation of the requirements of equal treatment, another administrative organ cannot implement proceedings against this person for the violation of the same persons rights. In case of violating another person’s rights, the procedures against the violator have to be suspended until the legally binding verdict is made. [4] If an administrative organ has considered the case, then another administrative organ cannot launch proceedings for violation of rights of the same person. If the procedure started was due to the violation of a third person’s rights, then, the administrative organ proceeds on basis of the statement of facts stipulated in the legally binding resolution.
If the case has been considered by an administrative organ, then another administrative organ cannot start proceedings in the same case for the violation of rights of the same person. In case of violating another persons rights, the administrative organ acts based on the statement of facts stipulated in the legally binding resolution.
Different rules apply to the relationship between the administrative organ and the courts. According to the law and its explanation the concurrent enforcement of rights is not impossible in the relation of a civil lawsuit and an administrative procedure. We have no experience in what would happen if we were to turn to the Authority and the court with the same case at the same time, but we think it is worthwhile to try the administrative way first. Considering that the procedure of the Authority is incomparably faster than litigation, we find it practical to turn to the court after a favourable decision has been made by the Authority. This also simplifies later litigation, as the statement of facts, and the legal ground has already been cleared. We have to note that the statement of facts determined by the administrative organ are not binding for the court, evidence always has to be shown and proved but the process could be made simpler, shorter.
Since the Equal Treatment Act has entered into force, we have proceeded in 2 cases where discrimination was experienced in the field of public service. In one of the cases – in accordance with the request of our client – we have only turned to the Equal Treatment Authority, while in the other case we have initiated a civil lawsuit, as the EBH has not started functioning at the time the case was filed.