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The Impact of the Croatian Anti-Discrimination Law on Private Law Relations

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New Europe - Old Values?

Part of the book series: Europeanization and Globalization ((EAG,volume 1))

Abstract

The principles of equality and non-discrimination are embedded in numerous international agreements forming an integral part of the Croatian legal system, in the Constitution of the Republic of Croatia and statutory law. Over the last decade, the intensive legal development of the Croatian anti-discrimination law has been influenced both by the international and by EU law sources. To the special anti-discrimination legislation enacted due to the alignment of the existing Croatian legislation with the acquis communautaire belong primarily the Anti-Discrimination Act as lex generalis and the Gender Equality Act as lex specialis. However, provisions guaranteeing the principles of equality and non-discrimination can be found scattered all over numerous other leges specialis of both the public and private law nature. Having in mind the rising importance of these fundamental constitutional principles and their interference with many areas of private law, this paper tries to examine to what extent the newborn Croatian anti-discrimination law affects the private law relations and basic principles of civil law, such as the principle of private autonomy and freedom of contract.

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Notes

  1. 1.

    Equal treatment and equality are linked and jointly analysed in this paper as closely intertwined principles, because the prohibition of discrimination emerges from and is an expression of the fundamental principle of equality.

  2. 2.

    Case C-101/08, Audiolux [2009] ECR I-09823, para. 54: ‘According to settled case-law, the general principle of equal treatment requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified’. See also the Joined Cases C-117/76 and C-16/77, Albert Ruckdeschel & Co. [1977] ECR I-01753, para. 7; Case C-106/83, Sermide [1984] ECR I-04209, para. 28; Case C-15/95, EARL de Kerlast [1997] ECR I-1961, para. 35; Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04 [2005] ECR I-10423, para. 63; Case C-17/05, Cadman [2006] ECR I-9583, para. 28; Case C-127/07, Société Arcelor Atlantique et Lorraine and Others [2008] ECR I-09895, para. 23; Case C-558/07, The Queen [2009] ECR I-05783, para. 74; Case C-236/09, Test-Achats, para. 28. See also ECtHR, Belgian Linguistic (1968) Series A, No. 6, para. 10; ECtHR, Abdulaziz, Cabales and Balkandali v. the United Kingdom (1985) Series A, No. 94, paras. 72, 78; ECtHR, Thlimmenos v Greece (2001) 36 EHRR 15, para. 44.

  3. 3.

    See ECJ/CJEU case law in the area of the free movement of persons and gender equality concerning the discrimination on the grounds of sex and age: in its Case C-152/73, Sotgiu [1974] ECR I-00153, the ECJ stressed the ‘fundamental nature’ of the principle of equal treatment. In Case C-149/77, Defrenne III [1978] ECR I-01365, para. 27, the ECJ recognised that the ‘elimination of discrimination on grounds of sex forms part of the fundamental rights’ under Community law. In the Case C-442/00, Caballero [2002] ECR I-11915, paras. 32 and 42, the ECJ acknowledged the constitutional quality of the principles of equal treatment and non-discrimination in general. In Case C-25/02, Katharina Rinke v Ärztekammer Hamburg [2002] ECR I-08349, para. 25, the ECJ emphasised that ‘the elimination of discrimination on grounds of sex forms part of the fundamental rights the observance of which, as general principles of Community law, the Court has a duty to ensure’. In the Case C-144/04, Mangold [2005] ECR I-09981, the ECJ referred to the constitutional relevance of Directive 2000/78/EC as incorporating the principle of equal treatment under EU Law, which was repeated in Case C-555/07, Seda Kücükdeveci [2010] ECR I-00365.

  4. 4.

    Consolidated versions of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), OJ C 326 of 26 October 2012.

  5. 5.

    Charter of Fundamental Rights of the European Union, OJ C 326/391 of 26 October 2012. Pursuant to Art. 21 on non-discrimination of the Charter, ‘any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited’ and ‘within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited’. Art. 23 of the Charter requires equality between women and men in all areas, including employment, work and pay, but does not prevent the adoption of affirmative actions.

  6. 6.

    Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, OJ C 306 of 17 December 2007.

  7. 7.

    The above-mentioned provisions prohibit discrimination on the grounds of different criteria and have different ratione materiae and personae: Arts. 18, 37(1), 45(2), 49(2), 56(1) and 92 TFEU are based on the nationality criterion; Arts. 34, 35 and 110 TFEU prohibit discrimination on the grounds of the goods’ origin etc. Thereby, Art. 18 TFEU has a subsidiary meaning with regard to special TFEU provisions on non-discrimination and is used as the tool for their interpretation concerning all situations covered by the Treaty provisions and secondary law.

  8. 8.

    Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, OJ C 340, 10.11.1997.

  9. 9.

    Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L 180/22; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16; Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between women and men in the access to and supply of goods and services [2004] OJ L 373/37.

  10. 10.

    For instance, the field of application of ex Art. 141 TEC (now: Art. 157 TFEU) was concretised through numerous EU directives adopted on the legal basis of ex Arts. 94 TEC (ex ex Art. 100 TEEC) and 308 TEC (ex ex Art. 235 TEEC), because the explicit competence for the adoption of measures prohibiting gender discrimination concerning equal pay for equal work or work of equal value was first given to legislative bodies with the Amsterdam Treaty introducing paragraph 3 in ex Art. 141 TEC. The Amsterdam Treaty introduced also the general goal of equal treatment of men and women in ex Art. 2 TEC. Directive 2006/54/EC (recast) of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment between men and women in matters of employment and occupation [2006] OJ L 204/23 and the repealed Gender Equality 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 employment, vocational training and promotion, and working conditions [2002] OJ L 269/15, were both adopted on the basis of Art. 141(3) TEC.

  11. 11.

    Apart from the codified principle of non-discrimination, the ECJ developed the principle of equal treatment as a general legal principle of EU law. Although these two notions are often used as synonyms, in its practice the ECJ characterised the primary law provisions on non-discrimination as a special expression of the principle of equal treatment. See Joined Cases C-270/97 and C-271/97, Sievers [2000] ECR I-00929, paras. 57 and 66; Joined Cases C-92/92 and C-326/92, Phil Collins [1993] ECR I-05145, para. 32; Joined Cases C-117/76 and C-16/77, Albert Ruckdeschel & Co. [1977] ECR I-01753, para. 7.

  12. 12.

    Treaty between Member States of the European Union and the Republic of Croatia concerning the Accession of the Republic of Croatia to the European Union, OJ L 112, 24.4.2012; Act on Confirmation of Treaty between Member States of the European Union and the Republic of Croatia concerning the Accession of the Republic of Croatia to the European Union, Official Gazette – International Agreements of the Republic of Croatia (OG IA) Nos. 2/12 and 5/13. Pursuant to its Art. 36(1)(2), the Commission’s monitoring shall focus in particular on the commitments undertaken by Croatia in the area of the judiciary and fundamental rights (Annex VII), including the continued development of track records on judicial reform and efficiency, impartial handling of war crimes cases, and the fight against corruption. See Annex VII on specific commitments undertaken by the Republic of Croatia in the accession negotiations (referred to in Art. 36(1), second subparagraph, of the Act of Accession), which encompass, inter alia, ‘7. To continue to strengthen the protection of minorities, including through effective implementation of the Constitutional Act on the Rights of National Minorities (CARNM). 8. To continue to address outstanding refugee return issues. 9. To continue to improve the protection of human rights’.

  13. 13.

    Act on Confirmation of the Stabilisation and Association Agreement between the Republic of Croatia and the European Communities and their Member States, OG IA Nos. 14/01, 15/01, 14/02, 1/05, 7/05, 9/05 and 11/06.

  14. 14.

    The Constitution of the Republic of Croatia, OG Nos. 56/90, 135/97, 8/98 (consolidated text), 113/00, 124/00 (consolidated text), 28/01, 41/01 (consolidated text), 55/01 (correction), 76/10, 85/10 (consolidated text).

  15. 15.

    The ECHR was ratified by the Republic of Croatia in 1997. See Act on Confirmation of the ECHR and Protocols Nos. 1, 4, 6, 7 and 11, OG IA Nos. 18/97, 6/99, 8/99; Act on Confirmation of ECHR Protocol No. 13, OG IA Nos. 14/02, 13/03; Act on Confirmation of ECHR Protocol No. 12, OG IA Nos. 14/02, 9/05; Act on Confirmation of ECHR Protocol No. 14, OG IA Nos. 1/06, 2/10.

  16. 16.

    Private autonomy and freedom of contract are, for instance, explicitly recognised in Art. 1 of the Annex I of the Commission Proposal of 11 October 2011 for a Regulation of the European Parliament and of the Council on a Common European Sales Law (CESL), COM(2011) 635 final, whereas Art. 15 on freedom to choose an occupation and right to engage in work, Art. 16 on freedom to conduct a business and Art. 17 on right to property of the EU Charter of Fundamental Rights recognise the principle indirectly.

  17. 17.

    Private autonomy and freedom of contract are indirectly expressed by some provisions in the chapter of the Constitution on economic, social and cultural rights, such as Art. 48 on right to property, Art. 49 on entrepreneurial and market freedom and Art. 55 on right to work and freedom to work and to choose an occupation.

  18. 18.

    Regarding Art. 14(2) of the Constitution, the Constitutional Court observes the obligation of the Supreme Court to ensure a uniform application of laws and equality of all before the law (Art. 119(1) of the Constitution). Pursuant to Art. 24(1) of the Courts Act, OG Nos. 150/05, 16/07, 113/08, 153/09, 116/10, 122/10 (consolidated text) 27/11, 57/11, 130/11 and 28/13 the Supreme Court ensures the uniform application of law and equality of all citizens before the law. Before the amendments of the Civil Procedure Act (CPA) in 2008 (OG No 84/08), the Supreme Court could not fulfil its constitutional obligation properly, because ex Art. 382 of the CPA prescribed very high monetary amount as a condition for filing up requests for the revision of cases. The provision was considered to be discriminatory and contradictory to Arts. 14 and 26 of the Constitution because it disabled all the citizens from getting equal judicial protection before the Supreme Court. The Constitutional Court nullified the disputed provision with its Decision published in OG No. 2/07 of 4 January 2007.

  19. 19.

    Gavella (2000), p. 20.

  20. 20.

    For example, in Art. 15 guaranteeing equal rights to members of all national minorities in Croatia; in Art. 26 guaranteeing the equality of the Croatian citizens and of aliens before the courts, governmental agencies and other bodies vested with public authority; in Art. 44 giving to every Croatian citizen the right to participate in the conduct of public affairs and to have access to public services under equal conditions; in Art. 55 et seq. concerning employment and working conditions etc.

  21. 21.

    Besides this general clause, the Constitution regulates special reasons for restrictions of certain fundamental rights, such as freedom and secrecy of correspondence (Art. 36), right to free association (Art. 43), entrepreneurial freedom and property rights (Art. 50(2)) and right to strike (Art. 60(2)). Moreover, the Constitution differentiates between restrictions of guaranteed human rights in the peaceful state and a state of war or an immediate danger to the independence and unity of the Republic or in the event of some natural disaster (Art. 17). However, even in a latter state the extent of restrictions must be adequate to the nature of the danger and may not result in the inequality of persons regarding race, colour, gender, language, religion and national or social origin. Some fundamental rights cannot be restricted even in the case of immediate danger to the existence of the state (right to life, prohibition of torture, cruel or unusual treatment or punishment, on the legal definitions of penal offenses and punishments and on freedom of thought, conscience and religion). See Decision of the Constitutional Court No. U-I-764/2004 of 21 March 2007, para. 12: ‘The Constitutional Court emphasizes that Art. 14 of the Constitution does not prohibit to the legislator to regulate rights and obligations of particular same or alike groups differently, if in doing so, existing inequalities between those groups are corrected or there are other justified and on the Constitution based reasons for that. Different regulation of rights and obligations, will though be considered to be discriminatory, if regulated differentiation has no objective and reasonable justification, i.e. if it does not realize legitimate aim or if there is no proportionality between prescribed legislative measure and the aim that is trying to be accomplished’.

  22. 22.

    According to Arts. 62–80 of the Constitutional Court Act of the Republic of Croatia, OG Nos. 99/99, 29/02, 49/02 (consolidated text), everyone who deems that the individual act of a state body, a body of local and regional self-government, or of a legal person with a public authority, which decided about his/her rights and obligations, or about suspicion of or accusation of a criminal act, has violated his/her human rights or fundamental freedoms guaranteed by the Constitution, or his/her right to local and regional self-government guaranteed by the Constitution, may lodge such a complaint. According to Art. 62(2) of this Act, if some other legal remedy is provided against violation of constitutional rights, the constitutional complaint may be lodged only after this remedy has been exhausted. With regard to the right to equality and non-discrimination, the constitutional complaint cannot be lodged due to a violation of declaratory provision in Art. 3 or Art. 14(1) of the Constitution. It can only be lodged because of violation of the concrete human right or fundamental freedom guaranteed by the Constitution, i.e., Art. 14(1) of the Constitution can only be challenged together with the violation of some other constitutional right, which is then examined from the perspective of this provision. See the Decision of the Constitutional Court No. U-III/3192/2003 of 17 May 2006, para. 6: ‘Art. 14(1) of the Constitution contains constitutional guarantee of non-discrimination. Discrimination on the ground of Art. 14(1) of the Constitution is not independent legal basis for the constitutional complaint, but it has to be pleaded together with some other (material) constitutional right guaranteed by the Constitution. In constitutional complaint the applicant has not specified reasons on basis of which it could be established, whether she was discriminated in performed procedure in realization of some constitutional right on any of grounds, nor did the Constitutional Court established these reasons in the performed constitutional procedure. Thereby, the Constitutional Court evaluates applicant’s referring to prohibition of discrimination guaranteed by the Constitution, as ungrounded’.

  23. 23.

    According to Art. 5(1) of the Constitution, in the Republic of Croatia the laws must comply with the Constitution and other regulations must comply with the Constitution and the law. The protection of individuals against normative discrimination is enabled through the procedure of deciding on accordance of the laws with the Constitution and of other regulations with the Constitution and the laws pursuant to Art. 55(1) and (2) of the Constitutional Court Act of the Republic of Croatia. According to its Art. 55(3), the Constitutional Court may annul a legal act, or its separate provisions, taking into account all the circumstances which are important for the protection of constitutionality and legality, and especially bearing in mind how seriously it violates the Constitution or the law, and the interest of legal security: if it violates human rights and fundamental freedoms guaranteed by the Constitution; if, ungrounded, it places some individuals, groups or associations in a more or a less favourable position.

  24. 24.

    The competences of the Constitutional Court are regulated in Arts. 129–130 of the Constitution. Moreover, there are other special court procedures for the protection of fundamental rights, when there is no other protection offered for certain legal transactions. One concerns the protection before the Administrative Court of the Republic of Croatia and another the so-called action against illegal action before the County Court. Another way of protecting fundamental rights is the constitutional institute of ombudsman (Art. 93 of the Constitution).

  25. 25.

    Although both constitutional and private law provisions offer the possibility of developing direct horizontal effect of fundamental rights, it seems that the existing case law indicates only the acceptance of indirect horizontal effect of constitutional fundamental rights in private law relations. However, this very sensitive matter is to the knowledge of the author still not clarified by the legal doctrine or the case law. As to the question whether the constitutional anti-discrimination provisions are directly applicable and if the constitutional equality clause can be enforced against private actors as well, and not just against the State, the Country Reporter Kušan gives positive answer in the Report on Measures to Combat Discrimination Directives 2000/43/EC and 2000/78/EC of 2011, p. 12, however, without explaining its extent or providing the court practice. The Constitutional Court explicitly referred to the Drittwirkung in Case Nos. U-I-295/2006, U-I-4516/2007 of 6 July 2011 by citing the Decision of the German Constitutional Court of 22 February 2011 (BVerfG, 1 BvR 699/06 vom 22.2.2011, Absatz-Nr./1-128/) concerning the extension of the obligation to protect the right to freedom of public assembly and expression also onto some legal subjects whose work is grounded in the rules of civil (private) law. The Croatian Constitutional Court found this judgement relevant, because it considered that the freedom of public assembly cannot be limited only to public traffic spaces but must also be guaranteed in other areas, such as shopping centres or other places where people meet. In its argumentation, the Constitutional Court focused on the principle of proportionality, without elaborating the Drittwirkung anymore. Furthermore, in criticising excessive intrusion of the Constitutional Court in the area of ordinary court’s competences, Belajec came to a conclusion that ‘the violation of ownership in private civil law disputes is actually not a violation of the constitutional right in the sense of Art. 59 of the Constitutional Court Act, because it cannot be a ground for the constitutional complaint, even in case where the court brought illegal decision in litigation concerning ownership or other property right’. Although the author acknowledges that ‘the constitutional guarantee of ownership does not exclude (or must not exclude) the constitutional protection from interferences of other subjects of private law (citizens, legal persons)’, he explains that such protection is not guaranteed at the constitutional level but before the ordinary courts, which rule not only on the grounds of laws but also by applying constitutional rules. See Belajec (2000), pp. 109–110. See examples of the consistent Constitutional Court case law from 2000 to 2009, which denies the constitutional protection of fundamental constitutional rights in private law matters in Marković et al. (2011), p. 610.

  26. 26.

    On different theories and models of the horizontal effect of fundamental rights and their critiques, see Ferreira (2011), pp. 17 et seq.

  27. 27.

    For example, according to Art. 2 of the Civil Obligations Act (OG Nos. 35/05, 41/08 and 125/11), regulating the Croatian equivalent to the freedom of contract, namely ‘sloboda uređivanja obveznih odnosa’ [freedom to regulate obligations relationships], parties are free to regulate their obligations, and these obligations cannot be regulated contrary to the Constitution of the Republic of Croatia, mandatory laws and the morals of society. See infra, p. 18.

  28. 28.

    Due to this legal effect, international agreements serve as a criterion for the evaluation of the constitutionality of laws. See the Conclusion of the Constitutional Court Nos. U-I-920/95 and U-I-950/96 of 11 March 1998 on the procedure of constitutionality evaluation of the Croatian Railways Act, where the Constitutional Court inter alia concluded that the application of the law contrary to international agreements in general and especially contrary to the ECHR as a part of the national legal order would represent a violation of an international law obligation taken by Croatia and violation of Arts. 3 (rule of law), 5 and 141 of the Constitution. See Rodin (2009), p. 323.

  29. 29.

    Such as International Convention on the Elimination of All Forms of Racial Discrimination of 7 March 1966 (New York, 16 December 1966), Official Journal of the Socialistic Federative Republic of Yugoslavia (OJ SFRY), International and other agreements No. 6/1967, adopted in the Republic of Croatia by succession OG IA No. 12/93; Convention on the Elimination of All Forms of Discrimination Against Women of 18 December 1979 (New York, 18 December 1979), OJ SFRY IA No. 11/1981, adopted in the Republic of Croatia by succession OG IA No 12/93; Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women of 6 October 1999, OG IA No. 3/01; the Republic of Croatia is member of conventions of the International Labour Organisation on the ground of succession notification, see Decision in OG IA No. 2/94; OG IA No. 5/00; OG IA No. 3/00; OG IA No. 5/00; OG IA No. 11/03; International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights of 16 December 1966 (New York, 16 December 1966), OJ SFRY IA No. 7/1971, adopted in the Republic of Croatia by succession OG IA No. 12/93; UN Convention on the Rights of the Child, OJ SFRY IA No. 15/1990, adopted in the Republic of Croatia by succession OG IA Nos. 12/93, 26/97, 4/98 and 13/98; Act on Confirmation of the Convention on the Rights of Persons with Disabilities and the Optional Protocol to the Convention on the Rights of Persons with Disabilities, OG IA Nos. 6/07 and 3/08; Act on Confirmation of the European Social Charter, Additional Protocol to the European Social Charter, Protocol Amending the European Social Charter and Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, OG IA Nos. 15/02 and 8/03 (the Republic of Croatia is not bound with Art. 4 and 15 concerning discrimination prohibition); Charter of the UN, OG IA No. 15/93.

  30. 30.

    See Rodin (2013), p. 391; Goranić (2003), p. 1457.

  31. 31.

    Art. 14 of the ECHR prohibits discrimination only with regard to the ‘enjoyment of the rights and freedoms’ set forth in the Convention. Because of its accessory nature to the other, substantive guarantees in the Convention and its Protocols, the relevant ECtHR case law was quite restricted and consequently the general prohibition of discrimination in Art. 1 of the Protocol No. 12 was introduced. The latter provision is however limited to protection against discrimination by public authorities. According to the Explanatory Report to the Protocol No. 12 to the ECHR, ‘the Article is not intended to impose a general positive obligation on the Parties to take measures to prevent or remedy all instances of discrimination in relations between private persons’ (para. 25), but ‘it cannot be totally excluded that the duty to “secure” under the first paragraph of Article 1 might entail positive obligations’ (para. 26). With regard to clear-cut and grave discrimination in private parties relations the responsibility of the State under Art. 1 of the Protocol could come into play (para. 26), mostly regarding ‘relations in the public sphere normally regulated by law, for which the state has a certain responsibility (for example, arbitrary denial of access to work, access to restaurants, or to services which private persons may make available to the public such as medical care or utilities such as water and electricity, etc.)’ (para. 28).

  32. 32.

    According to Art. 69 of the SAA, the process of approximation will start on the date of signing the SAA and should finish at the latest within 6 years after the entry into force of the SAA. The SAA was signed on 29 October 2001 and entered into force on 1 February 2005. Until then, the Interim Agreement on Trade and Trade-Related Matters between the Republic of Croatia, of the one part, and the European Community, of the other part (IA), which entered into force on 1 January 2002, applied (OG IA Nos. 15/01, 3/02).

  33. 33.

    See Ćapeta (2006), p. 1443. This approach was confirmed in the Decision of the Constitutional Court No. U-III-1410/2007 of 13 February 2008 (OG No. 25/2008), where it was held that Art. 70(2) of the SAA and Art. 35(2) of the IA should be seen in the context of Croatia’s obligation to harmonise its legislation, including legislation relating to market competition, with the acquis, and that the harmonised legislation is to be applied by state authorities in accordance with the meaning and the spirit of the acquis. The Constitutional Court held that ‘the criteria, standards and interpretative instruments of the European Communities are not applied as the primary source of law, but only as an auxiliary instrument of interpretation’.

  34. 34.

    A discrepancy with this monistic principle laid down in Art. 141 of the Constitution can with regard to the SAA and the IA be found in Art. 6 of the Croatian Implementation Act of the SAA and IA (OG IA 15/2001), which requires the Croatian Parliament’s ratification of the Stabilisation and Association Council’s decisions amending the SAA. See Rodin (2003), p. 239.

  35. 35.

    See European Council in Copenhagen in 1993, Bulletin of the European Communities, No. 6, 1993, p. 13. Although the European Commission concluded already in the Opinion on the Application of Croatia for Membership of the European Union (avis) of 20 April 2004 (COM(2004) 257 final) that Croatia fulfils these political criteria, it held that the state of human rights needs further improvements, especially regarding discrimination of (Roma and Serb) minorities and return of refugees.

  36. 36.

    Art. 382 of the Civil Procedure Act (CPA), OG Nos. 53/91, 91/92, 58/93, 112/99, 129/00, 88/01, 117/03, 88/05, 02/07, 84/08, 96/08, 123/08, 57/11, 148/11 (consolidated text) and 25/13 includes inter alia the following grounds for revision: conditionality of court decision upon resolution of a substantive law or procedural law issue, which is important for the uniform application of the law and citizen’s equality. To the list of grounds for revision belongs also the necessity to examine the court’s practice because of the ruling of the Constitutional Court, ECtHR or ECJ/CJEU. Art. 428a of the CPA provides a special extraordinary legal remedy that enables an individual, whose human right or fundamental freedom was violated by the judgement of the first instance court, to file up the proposal for the procedure renewal within 30 days from the final ECtHR judgement establishing such violation.

  37. 37.

    OG No. 76/10. See Chapter VIII of the Constitution.

  38. 38.

    According to the principle of direct applicability of the EU law, provisions of certain EU legal acts (such as Treaties, regulations, decisions) are directly applicable in Member States without their transposition into national laws. See Case C-43/75, Defrenne II [1976] ECR I-455; Case C-36/74, Walrave and Koch [1974] ECR I-1405; Case C-34/73, Variola [1973] ECR I-981. While the principle of loyalty and sincere cooperation is enshrined in Art. 4(3) of the TEU, the two following principles are based on the established ECJ/CJEU case law. Pursuant to the principle of supremacy of Union law, in case of collision of provisions of Union law and of the national law, the latter must be excluded from the application and replaced either with some other compliant national law provision or with the Union law provision having direct effect. Although the ECJ/CJEU consistently denied horizontal direct effect of directives, in the case Mangold and later confirmed in Kücükdeveci, it elevated the principle of non-discrimination on grounds of age, as expressed in recitals 1 and 4 of the Framework Directive 2000/78/EC, to the level of general principle of EU law and demanded from national courts not to apply national provision contrary to that general principle. See also Case C-6/64, Costa v. E.N.E.L. [1964] ECR I-585; Case C-106/77, Simmenthal II [1978] ECR I-629; Case C-11/70, Internationale Handelsgesellschaft [1970] ECR I-1125; Case C-144/04, Mangold [2005] ECR I-09981; Case C-555/07, Seda Kücükdeveci [2010] I-00365. According to the principle of consistent interpretation, the national courts are obliged to interpret complete national law consistent with EU law. See Case C-14/83, von Colson [1984] ECR I-01891; Case C-106/89, Marleasing [1990] ECR I-4135; Joined Cases C-397/01-C-403/01, Pfeiffer and Others [2004] ECR I-08835; Case C-105/03, Pupino [2005] ECR I-05285. See Rodin (2010).

  39. 39.

    OG Nos. 85/08 and 112/12.

  40. 40.

    OG Nos. 82/08 and 138/12. This is the new GEA that actually replaced the first one published in the OG No. 116/2003. The old GEA was repealed by the Decision of the Constitutional Court No. U-I-2696/2003 of 16 January 2008, because it was not adopted with the majority of votes necessary for the enactment of organic laws. Besides the mentioned ones, the new GEA transposes Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, OJ L 45, 19.2.1975; Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment in matters of social security, OJ L 6, 10.1.1979; Council Directive 86/613/EEC of 11 December 1986 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood, OJ L 359, 19.12.1986; Council Directive 92/85/EC of 19 October 1992. on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Art. 16(1) of Directive 89/391EEC), OJ L 348, 28.11.1992, as amended by Directive 2007/30/EC, OJ L 165, 27.6.2007; Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, OJ L 145, 19.6.1996, as amended by Directive 97/75/EC, OJ L 10, 16.1.1998; 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 046, 17.2.1997; Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex, OJ L 14, 20.1.1998, as amended by Directive 98/52/EC, OJ L 205, 22.7.1998; 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 employment, vocational training and promotion, and working conditions, OJ L 269 of 5.10.2002.

  41. 41.

    OG Nos. 155/02 and 80/10.

  42. 42.

    The novelties introduced by OG No. 114/03 into the old Labour Act (LA) from 1995 (OG Nos. 38/95, 54/95, 65/95, 17/01, 82/01, 114/03, 123/03, 142/03, 30/04 and 137/04) concerned amendments of the provision on unequal treatment, inclusion of sexual orientation into the list of discrimination grounds, definition of direct and indirect discrimination, concretisation of prohibited discrimination, introduction of exemptions from discrimination prohibition, definition of harassment and sexual harassment, regulation of damage compensation, simplification of the burden of proof for victims, regulation of procedure of victim’s dignity protection in case of harassment and sexual harassment, amendment of the provision on equality of payment for men and women by defining ‘equal work’ and ‘work of equal value’ and amendment of provisions on employer’s misdemeanour responsibility. The regulation of most of these issues is transferred from the new LA from 2009 (OG Nos. 149/09, 119/10, 61/11 and 73/13) to the ADA and the GEA as special acts on non-discrimination.

  43. 43.

    Same-Sex Communities Act, OG No. 116/03; Act on Service in the Armed Forces of the Republic of Croatia, OG No. 73/13; Civil Servants Act, OG Nos. 92/05, 142/06, 77/07, 107/07, 27/08, 34/11; 49/11, 150/11, 34/12, 49/12, 37/13 and 38/13; Act on Professional Rehabilitation and Employment of Persons with Disabilities, OG Nos. 143/02 and 33/05; Criminal Code, OG Nos. 125/11 and 144/12; People’s Ombudsman Act, OG No. 76/12; Act on Protection From Domestic Violence, OG Nos. 137/09, 14/10 and 60/10. For a more comprehensive list see Potočnjak and Grgić (2009), pp. 136–137.

  44. 44.

    See Selanec (2009), pp. 62–63. Moreover, Selanec considers that in other regulatory areas covered by the ADA beyond the field of application of the EU Anti-discrimination directives, the Croatian courts could apply ADA’s anti-discrimination guarantees independently of the acquis, meaning also in pure private law relations. However, the principle of EU law on consistent interpretation requires from national courts to interpret complete national law consistently with EU law, when this is necessary for the realisation of transposed directive’s goals (so-called effet utile). See Joined Cases of 5 October 2004, C-397/01-C-403/01, Pfeiffer and Others [2004] ECR I-08835, para. 115: ‘Although the principle that national law must be interpreted in conformity with Community law concerns chiefly domestic provisions enacted in order to implement the directive in question, it does not entail an interpretation merely of those provisions but requires the national court to consider national law as a whole in order to assess to what extent it may be applied so as not to produce a result contrary to that sought by the directive (…)’. Also, the areas that are most important for private law relations are already covered by the EU Anti-discrimination directives and must consequently be applied and interpreted consistently.

  45. 45.

    With regard to the question which contractual relations or even obligation relations encompass access to, supplying and providing of goods, services and housing available to the public, recital 11 of the Gender Goods and Services Directive 2004/113/EC refers to goods within the meaning of Treaty provisions on free movement of goods and to services within the meaning of Art. 50 TEC (now: Art. 57 TFEU).

  46. 46.

    See COM(2008) 426 final (2008/0140 (CNS)), which regulates that ‘discrimination based on religion or belief, disability, age or sexual orientation is prohibited by both the public and private sector in: (…) access to and supply of goods and other services which are available to the public, including housing’. See also Art. II-2:101 of the Draft Common Frame of Reference (DCFR), according to which ‘a person has a right not to be discriminated against on the grounds of sex or ethnic or racial origin in relation to a contract or other juridical act the object of which is to provide access to, or supply, goods, other assets or services which are available to the public’. See Art. 3:201 of the Acquis Principles on remedies: ‘(1) A person who is discriminated against on the grounds of sex, ethnic or racial origin in relation to contracts that provide access to, or supply goods or services which are available to the public, including housing, is entitled to compensation. (2) Where appropriate, the discriminated person is entitled to other remedies which are suitable to undo the consequences of the discriminating act, or to prevent further discrimination’.

  47. 47.

    Case C-303/06, Coleman [2008] ECR I-05603.

  48. 48.

    For example, Art. 5(4) of the LA prohibits direct or indirect discrimination in the area of work and working conditions, including selection criteria, recruiting and promotion conditions, professional improvement, retraining and vocational training pursuant to provisions of special laws.

  49. 49.

    Pavlović (2009), p. 94.

  50. 50.

    Potočnjak and Grgić (2011), p. 30. See the Decision of the Constitutional Court Nos. U-I-764/2004, U-I-2578/2004, U-I-2670/2004, U-I-3006/2004 and U-I-1452/2005 of 21 March 2007 (OG No. 34/07), pursuant to which there must be very convincing and from constitutional perspective acceptable reason for different regulation based explicitly on characteristics referred to in Art. 14(1) of the Constitution. This was confirmed in Decision of the Constitutional Court Nos. U-I-1152/2000, U-I-1814/2001, U-I-1478/2004, U-I-3137/2002 and U-3760/2005 of 18 April 2007 (OG No. 43/07).

  51. 51.

    Pursuant to the EU law and the Framework Directive 2000/78/EC, direct age discrimination can be justified if differences of treatment on grounds of age are objectively and reasonably justified by a legitimate aim (such as legitimate employment policy, labour market and vocational training objectives) and if the means of achieving that aim are appropriate and necessary. However, the prevention of age discrimination remains a fundamental principle of EU law. See Case C-144/04, Mangold [2005] ECR I-09981; Case C-411/05, Palacios de la Villa [2007] ECR I-08531; Case C-388/07, Age Concern England [2009] ECR I-01569; Case C-555/07, Seda Kücükdeveci [2010] ECR I-00365 etc.

  52. 52.

    In conformity with the constitutional guarantee of equality and non-discrimination and the state guarantee of special protection and care of persons with disabilities both in social life (Art. 58(2) and (3) of the Constitution) and at work (Art. 65(3) of the Constitution), various measures having the character of obligation to reasonable adaptation can be found in many legal acts. These are elaborated in the LA, Act on Professional Rehabilitation and Employment of Persons with Disabilities (APREPD), Retirement Insurance Act (OG Nos. 102/98, 127/00, 59/01, 109/01, 147/02, 117/03, 30/04, 177/04, 92/05, 43/07, 79/07, 35/08, 40/10, 121/10, 130/10, 61/11, 114/11 and 76/12), Act on Protection of Mentally Ill Persons (OG Nos. 111/97, 27/98, 128/99, 79/02) etc. For instance, Arts. 74–81 of the LA protect workers who are temporarily or permanently unable to work, while the APREPD prescribes positive measures and regulates transitional period until 31 December 2017 for the increase of number of persons with disabilities to be employed in the state administration, in the judiciary, in units of local and regional self-government, in public services, in extra budgetary funds and legal entities owned or predominantly owned by the Republic of Croatia and by units of local and regional self-government. Although the quota system fulfils the requirements of the Framework Directive 2000/78/EC, it is considered that it should be replaced by more adequate provisions on reasonable adaptation in the LA and the APREPD.

  53. 53.

    Although the ADA does not define the concept of ‘unreasonable burden’, it is considered that Art. 29 of the APREPD fulfils some of requirements set in recital 21 of the Framework Directive 2000/78/EC, according to which the account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance. Art. 29 of the APREPD regulates employer’s right to tax breaks and special money incentives (e.g. for the adaptation of access to working place and of working conditions, of machinery, for personal assistant etc).

  54. 54.

    See Horvat (2008), p. 1466, who emphasised that persons taking care of disabled family members should have a right to adjustment of their working conditions, which would require a more detailed legislative regulation beyond measures in Art. 4(2) of the ADA.

  55. 55.

    See also the ECtHR judgement in the case of Oršuš and Others v. Croatia (2011) 52 EHRR 7 regarding racial discrimination and violation of the right to education of schoolchildren separated in Roma-only classes.

  56. 56.

    According to Art. 6(2) of the ADA, the court shall take into consideration the circumstance of more serious form of discrimination when determining the amount of compensation for non-proprietary damage and when deciding about misdemeanour fines.

  57. 57.

    Although according to EU law transsexuality and change of assigned gender (transgender) fall under the concept of gender, it seems that Art. 1(1) of the ADA places them under different prohibited grounds of discrimination, namely under the native/gender identity and expression. See Case C-13/94, Cornwall [1996] ECR I-2143, paras. 19–21.

  58. 58.

    See the Decision of the Constitutional Court No. U-I-764/2004 of 21 March 2007 and Potočnjak and Grgić (2011), p. 19.

  59. 59.

    See Bodiroga Vukobrat (2012), p. 53.

  60. 60.

    Omejec (2009), p. 886.

  61. 61.

    According to Art. 9(1) of the ADA, discrimination is prohibited in all its manifestations and pursuant to its para. 2 as an exception to para. 1, the placing in a less favourable position shall not be deemed to be discrimination in the following cases: ‘1. when such a conduct is set forth by law with the aim to preserve health, public security, maintain public order and peace, prevent of criminal acts and to protect rights and freedoms of other people and when the means used in democratic society are appropriate and necessary for achievement of the aimed goal, under condition that such conduct does not lead to direct or indirect discrimination on the basis of race or ethnic origin, colour, religion, gender, national and social origin, sexual orientation and disability; 2. special measures that include any measure of temporary nature, which is necessary and appropriate for the realisation of real equality of society groups, which are in less favourable position on the basis of some ground in Art. 1 of this Act, when such a conduct is based on provisions of laws, subordinate regulation, programmes, measures or decisions with the aim to improve the status of ethnic, religious, language or other minorities or other groups of citizens or persons discriminated on the grounds referred to in Art. 1(1); 3. pursuing measures of social politic that privilege persons or households in difficult property or social situation under condition that these measures do not lead to direct or indirect discrimination on the basis of gender, sexual orientation, race, colour, ethnic origin, religion and disability; 4. in relation to a particular job, when the nature of the job is such or the job is performed under such conditions that attributes related to any of the grounds referred to in Art. 1 present an actual and decisive condition for performing that job, provided that the purpose to be achieved is justified and the condition appropriate; 5. when conducting professional activities, i.e. entering in an employment relation, entering into membership and acting in conformity with the canon and mission of a church and religious congregation entered into the Register of Religious Congregations of the Republic of Croatia, and any other public or private organisation which acts in conformity with the Constitution and laws, if this is required by the religious doctrine, beliefs or objectives, in case when due to nature of these activities or circumstances in which they are conducted, religion or beliefs of some person represent true, legal and justified condition for the job conduct, taking into account system of values of that organisation; 6. on the grounds of age in the course of determining insurance premiums, insurance amounts and other insurance conditions on the basis of generally accepted principles of risks assessments, in line with relevant and accurate statistical data and rules of actuarial mathematics; 7. in accessing goods, services and sport and offering of the same, if the access to good and/or service is designated exclusively or primarily to members of one gender or to persons with disability under condition that such conduct is objective and justified by legitimate goal and if the used means are appropriate and necessary for the aim to be achieved 8. on the ground of age, if such conduct is objectively and reasonably justified by legitimate goal, including legitimate goals of social policy, social and health protection, employment policy, promotion of labour market goals and of professional training goals and if the means for its accomplishment are appropriate and necessary. For example, it is not considered to be discrimination: fixing of minimum conditions of age and/or professional experience and/or level of education limit for access to a certain employment or for acquiring other advantages linked to employment; fixing of a suitable and appropriate maximum age as a reason for employment termination and which is corresponds to the conditions for acquiring the right of age pension, prescribing age or reasonable period of employment for acquiring or realizing the right of retirement, or other right in the system of social security, including the field of social care, pension and health insurance and insurance in case of unemployment and prescribing age as condition for access to education or certain goods or services, under condition that the conditions out of the first sentence of this point are fulfilled; 9. on the grounds of nationality pursuant to separate regulations; 10. by placing in a less favourable position when regulating rights and obligations regulated by the Family Act, particularly with the purpose of protecting rights and benefits of children, protection of public morality and favouring marriage, whereby the used means must be appropriate and necessary’.

  62. 62.

    In Chapter III on affirmative actions, the GEA defines special measures as specific conveniences of temporary character, which are not considered to be discrimination and which enable persons of a particular gender to participate equally in public life, which remove existing inequalities or guarantee the rights previously denied to them. It emphasises that the measures aimed at the protection of women, especially linked to pregnancy and motherhood, and measures preventing or compensating for the less favourable position on the grounds of gender in the area of acquiring and supplying goods and offering services are not considered to be discrimination. Affirmative actions are to be determined by statutory law and other legal acts regulating certain fields of public life. Moreover, bodies of state administration and legal persons owned in majority by the state, units of local and regional self-government, legal persons vested with public authority and other legal persons and craftsmen employing more than twenty employees are obliged to apply affirmative actions and to introduce them into their legal acts. Affirmative actions must be observed by the social partners in the process of collective negotiations and collective contracts and will be used to promote equal participation of women and men in bodies of legislative, executive and judicial power, including public services.

  63. 63.

    See Mišćenić (2014).

  64. 64.

    Case C-236/09, Test Achats [2011] ECR I-00773. In accordance with the Test-Achats ruling, the application of the unisex rule provided for in Art. 5(1) of the Gender Goods and Services Directive 2004/113/EC is required for new contracts concluded as from 21 December 2012 without any exception. For gender-related insurance practices that remain possible and for the use of other risk-rating factors, see European Commission Guidelines on the application of Council Directive 2004/113/EC to insurance, in the light of the judgement of the Court of Justice of the European Union in Case C-236/09 (Test-Achats), OJ C11/01 of 13.1.2012.

  65. 65.

    The Croatian Family Act, OG Nos. 116/03, 17/04, 136/04, 107/07, 57/11, 61/11 and 25/13, regulates marriage as life union between a woman and man, whereas the SSCA recognises an unregistered life partnership of same-sex partners by regulating support and property relations. See Šarčević et al. (2007), p. 1012.

  66. 66.

    OG No 86/12.

  67. 67.

    According to Art. 62 of the Constitution, family enjoys special protection of the state and marriage and legal relations in marriage, in extramarital community and in family are regulated by the statutory law.

  68. 68.

    Case C-267/06, Maruko [2008] ECR I-01757; Case C-147/08, Römer [2011] ECR I-03591. See also ECtHR case Gas and Dubois v. France of 15 March 2012, Application No. 25951/07.

  69. 69.

    According to Art. 9 of the EU Charter of Fundamental Rights, which departs from the wording of Art. 12 of the ECHR, ‘The right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights’. In ECtHR case Schalk and Kopf v. Austria of 24 June 2010, Application No. 30141/04, the ECtHR held that Art. 9 of the Charter and Art. 12 of the ECHR are not limited to marriage between two persons of the opposite sex and that they leave the decision whether or not to allow same-sex marriage to the national authorities, who are best placed to assess and respond to the needs of society. According to the ECtHR, states are still free, under Art. 12 of the ECHR as well as under Art. 14 in conjunction with Art. 8 of the ECHR, to restrict access to marriage to different-sex couples. Furthermore, the ECtHR concluded that ‘a cohabiting same-sex couple living in a stable de facto partnership falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would’.

  70. 70.

    For instance, according to Art. 2 of the Family Act, regulation of family relationships is based inter alia on the principle of equality between a women and a men, whereas provisions on support and property relations prescribe equal conditions for spouses and partners in an extramarital community.

  71. 71.

    Protection from discriminatory behaviour in testamentary disposition is, for instance, guaranteed by provisions of Inheritance Act (OG Nos. 48/03, 163/03 and 35/05) on inadmissible or immoral conditions (Art. 47(3)) or mandates (Art. 48(2)) that are considered to be non-existent.

  72. 72.

    Consumer Protection Act, OG Nos. 79/07, 125/07, 75/09, 79/09, 89/09, 133/09, 78/12 and 56/13. In Decision UP/I 030-02/2004-01/66, OG No. 135/05, the Croatian Competition Agency established violation of provisions of the CPA prohibiting discriminatory behaviour of traders towards consumers. In the case at hand, the company Ponikve d.o.o. divided consumers in 32 categories and charged their water supply with different prices per cubic metre, thus violating inter alia ex Art. 23 of the CPA (now: Art. 25 of the CPA). The latter provision requires from ‘the trader who provides a public service through a distribution network (…)’ to do it ‘under terms and conditions which are non-discriminatory, known beforehand and contractually agreed’.

  73. 73.

    Protection of Market Competition Act, OG Nos. 79/09 and 80/13.

  74. 74.

    See supra, note 38. The LA contains a number of other provisions requiring equality and non-discrimination, such as Art. 67 (prohibition of unequal treatment of pregnant women), Art. 83 (equal pay to women and men for equal work or work of equal value), Art. 156 (prohibition of unequal treatment of members of the worker’s council), Art. 157 (prohibition of unequal treatment of worker’s council towards workers), Art. 247 (prohibition of unequal treatment of workers on the ground of membership in a trade union or participation in its activities) and Art. 130 (protection of workers dignity).

  75. 75.

    Act on Ownership and Other Real Rights (AOORR), OG Nos. 91/96, 68/98, 137/99, 22/00, 73/00, 129/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09 and 143/12. The AOORR was amended in 2008, in order to fulfil obligations from Arts. 49(2) and 60(2)-(3) of the SAA, which prohibit the introduction of discriminatory or restrictive measures regarding the establishment and regarding payment and movement of capital between the EU and Croatian companies and residents and which require approximation of Croatian legislation concerning acquisition of real estates within 4 years from entering into force of the SAA in order to enable the EU citizens equal treatment as to the Croatian nationals. As of 1 February 2009, according to Art. 358.a of the AOORR, the EU nationals and legal persons acquire the right on ownership under the same conditions as the Croatian nationals and legal persons established in Croatia, with the exception of real estates in excluded areas, meaning agricultural territory determined by special statutory act and protected parts of nature according to special statutory act.

  76. 76.

    See Art. 4 of the Act Concerning the Resolution of Conflicts of Laws with Provisions of Other States in Certain Matters, OG Nos. 53/91 and 88/01 on ordre public, according to which the law of a foreign state shall not apply if its effect would be contrary to the fundamentals of state organisation laid down by the Constitution of the Republic of Croatia. The provision enables protection from discrimination that could occur through the application of foreign law provisions.

  77. 77.

    According to Art. 4 of the COA, parties have a duty to observe the principle of conscientiousness and honesty when entering into obligations relationships and exercising the rights and obligations resulting from these relations. This fundamental principle of the Croatian contract law is generally regarded as an equivalent for ‘good faith’ or for ‘good faith and fair dealing’, although these are not identical concepts. See Šarčević and Čikara (2009), p. 211.

  78. 78.

    Such an interpretation is presented by Gorenc et al. (2005), p. 8, who considers that discriminated party should also invoke some other COA provisions protecting other violated right/s, because it is difficult to prove violation of Art. 3 of the COA in the concrete case.

  79. 79.

    See the Decision of the Constitutional Court Nos. U-II-318/2003, U-II-643/2003 of 9 April 2003, in a case concerning discriminatory provision in the collective agreement, where the Constitutional Court stated that courts are deciding on conflict of collective agreement with the Constitution, mandatory provisions and morals of society, by applying the COA provisions on nullity of contracts.

  80. 80.

    A constitutional guarantee of personality rights can be found within the Chapter on Protection of Human Rights and Fundamental Freedoms, primarily under title no. 2 on Personal and Political Freedoms and Rights. According to Art. 22(1), ‘human’s freedom and personality is inviolable’, whereas Art. 35 of the Constitution guarantees to everybody the respect and legal protection of their personal and family life, dignity, reputation and honour.

  81. 81.

    Gavella (2000), p. 20.

  82. 82.

    Lauber emphasises that the right to self-determination of individuals is the declared objective of both Art. 19 TFEU and of the EU Anti-discrimination directives, which is also reflected in the Case C-303/06, Coleman [2008] ECR I-05603. See Lauber (2011), p. 189.

  83. 83.

    Nikšić considers that violation of personality rights can be qualified as the source of non-contractual obligation, which is independent of contractual relationship between the injured person and injurer, because personality rights exist on the ground of law and in principle do not arise on the ground of contract. See Nikšić (2007), pp. 117 et seq.

  84. 84.

    As emphasised by AG Maduro in Case C-438/05, Viking Line [2007] ECR I-10779, para. 39: ‘Whether it interprets a contractual clause, rules on an action for damages, or decides upon a request for an injunction, the court must, as an organ of the State, hand down a decision that respects the constitutional rights of the parties’.

  85. 85.

    See supra, note 21.

  86. 86.

    In the Decision of the Constitutional Court No. U-III-2029/01 of 28 March 2002, concerning violation of Art. 14(2) of the Constitution, the Court held that the constitutional guarantee of equality from Art. 14 of the Constitution would be violated if it were to be established that the party in the procedure preceding the challenged decision was not in an equal position to the other parties in the same legal situation, i.e. when the challenged decision could be considered arbitrary.

  87. 87.

    Conclusion of the Constitutional Court No. U-III-73/1992 of 12 May 1992.

  88. 88.

    Decision of the Constitutional Court No. U-III/696/1996 of 11 October 2000.

  89. 89.

    For instance, in Art. 103 of the LA on liability of employer for damage caused to worker.

  90. 90.

    According to Art. 1046 of the COA, damage is decrease of someone’s property (general damage), prevention of its increase (loss of profit) and violation of personality rights (non-proprietary damage). Whereas the COA provisions on repairing of proprietary (material) damage encompass restitution and pecuniary compensation (Arts. 1085–1088 of the COA), provisions on repairing of non-proprietary (non-material) damage prescribe the possibility of non-pecuniary (publication of judgement or corrigendum, withdrawal of injuring statement or similar action) and just pecuniary compensation (Arts. 1099–1106 of the COA) that do not exclude each other. However, the COA provisions on damage compensation are based on presumed subjective liability, while the CJEU/ECJ in cases of discrimination on the grounds of sex required application of strict (without fault) liability. Pursuant to Art. 1045(1) of the COA, a person who caused damage to another person shall compensate it, unless it proves that damage has occurred without its fault. In Case C-180/95, Draehmpaehl [1997] ECR I-02195, para. 21, concerning discrimination on the ground of sex, the ECJ stated: ‘(…) Directive (…) does not make the reparation of such damage conditional on the existence of fault, no matter how easy it would be to adduce proof of fault’. More about this specific problem in Reich (2011), p. 64.

  91. 91.

    However, Jelušić rightly differentiates between the effects of the court decision based on the latter COA provisions on the one hand and of those based on the ADA provisions on the other. He emphasises that the first one would have inter partes effects, because only the respondent is obliged to publish the judgement in the media and not also the publisher as prescribed in Art. 17(6) in connection with Art. 17(1)(4) of the ADA, which indicates ultra partes effects of such judgement. Jelušić (2009), p. 8.

  92. 92.

    Potočnjak and Grgurev (2007), p. 75.

  93. 93.

    See the Decision of the Constitutional Court No. U-I-1152/2000 of 18 April 2007 (OG No. 43/07) on unconstitutionality of provisions of the Retirement Insurance Act providing different conditions for acquiring of certain rights from retirement insurance for women and men.

  94. 94.

    The Office of Ombudsman is independent and is the central body for combating discrimination, whereas the offices of special ombudspersons, namely of the Ombudswoman for Gender Equality, the Ombudswoman for Children and the Ombudswoman for Persons with Disability, are in charge of different ADA’s provisions falling under their competence. Within the framework of his work the Ombudsman inter alia: receives notifications and warns the public about occurrences of discrimination; offers independent assistance to victims by receiving their complaints and providing them with necessary information on their rights and obligations and on the court- and other forms of protection; examines complaints and takes actions for elimination of discrimination and for protection of victims; with parties’ consent conducts mediation; files criminal charges related to discrimination cases to the competent state attorney’s office; informs the Croatian Parliament on the occurrence of discrimination in annual reports; conducts surveys concerning discrimination etc. See Arts. 12–15 of the ADA.

  95. 95.

    See Special Part, Chapter IX on the crimes against humanity and human dignity, particularly Art. 88 (genocide), Art. 89 (crime of aggression), Art. 90 (crime against humanity) Arts. 325 (public encouragement to violence and hatred) of the Criminal Code, OG Nos. 125/11 and 144/12. Fines for misdemeanour responsibility in special anti-discrimination legislation vary in Arts. 25–29 of the ADA and in Arts. 31–38 of the GEA from 1000.00 to 350,000.00 kuna.

  96. 96.

    For examples of previous court practice in anti-discrimination matters, see Mišćenić (2014), p. 1; and Kušan (2011), p. 7.

  97. 97.

    Proceedings before the court are regulated in Chapter V of the ADA. Arts. 16–24 of the ADA offer protection through prejudicial question, special legal actions for protection against discrimination (action for determination of discrimination, action for prohibition or elimination of discrimination or its consequences, action for damages and publication of the judgement in the media) and action for injunction protecting collective interests of victims of discrimination. The GEA also provides for action against discrimination based on its Arts. 6–8 and the possibility of damage compensation (Art. 30 of the GEA). See Mišćenić (2014), pp. 83 et seq.

  98. 98.

    See Case C-54/07, Feryn [2008] ECR I-05187 and with regard to compensation of non-proprietary damage Case C-409/95, Marshall [1997] ECR I-06363 and Case C-14/83, von Colson [1984] ECR I-01891; Case C-177/88, Dekker [1990] ECR I-03941.

  99. 99.

    Judgement of the County Court in Zagreb 15 Pnz-6/10-27 of 24 March 2011.

  100. 100.

    Judgement of the Supreme Court of the Republic of Croatia Gž 12/11-2 of 18 April 2012.

  101. 101.

    Judgement of the County Court in Zagreb Pnz-7/10 of 2 May 2011.

  102. 102.

    Judgement of the County Court in Zagreb Pnz-8/10 of 28 July 2011.

  103. 103.

    Judgement of the Supreme Court of the Republic of Croatia Gž-25/11-2 of 28 February 2012.

  104. 104.

    Judgement of the Supreme Court of the Republic of Croatia Gž-41/11-2 of 28 February 2012.

  105. 105.

    Although the President of the Labour Court, Brussels, dismissed Centrum voor gelijkheid van kansen en voor racismebestrijding’s application, stating, in particular, that there was no proof nor was there a presumption that a person had applied for a job and had not been employed as a result of his ethnic origin, the ECJ held in Case C-54/07, Feryn [2008] ECR I-05187, para. 25: ‘The fact that an employer declares publicly that it will not recruit employees of a certain ethnic or racial origin, something which is clearly likely to strongly dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market, constitutes direct discrimination in respect of recruitment within the meaning of Directive 2000/43. The existence of such direct discrimination is not dependant on the identification of a complainant who claims to have been the victim’.

  106. 106.

    Case C-81/12, Accept, paras. 36 and 53: ‘It is apparent from the case-law of the Court that direct discrimination within the meaning of Article 2(2)(a) of Directive 2000/78 does not mean that there must be an identifiable complainant who claims to have been the victim of such discrimination (…) In light of the foregoing, the answer to the first and second questions is that Articles 2(2) and 10(1) of Directive 2000/78 must be interpreted as meaning that facts such as those from which the dispute in the main proceedings arises are capable of amounting to “facts from which it may be presumed that there has been … discrimination” as regards a professional football club, even though the statements concerned come from a person presenting himself and being perceived in the media and among the general public as playing a leading role in that club without, however, necessarily having legal capacity to bind it or to represent it in recruitment matters’.

  107. 107.

    The burden of proof in anti-discrimination legislation is regulated in Art. 20 of the ADA and Art. 30(4) of the GEA. However, Dika considers latter provision to be unusual, since it requires from victim to demonstrate the facts to the court, which will justify the doubts about discrimination. Only then that the burden of proof that there was no discrimination is shifted to the opposite party. Under Art. 20 of the ADA, if a party in court or other proceedings claims that his/her right to equal treatment pursuant to the ADA has been violated, he/she shall make it plausible that discrimination has taken place. See Dika (2011), p. 76.

  108. 108.

    Judgement of the Municipial Court in Varaždin of 12 July 2012, Krešić v. FOI, not published. It should be noted that decisions of the Croatian courts, particularly of the first and second instance levels, are usually not publicly available. Consequently, information about this case came from the media.

  109. 109.

    Judgement of the County Court in Varaždin, August 2013, Krešić v. FOI, not published.

  110. 110.

    Judgement of the Municipial Court in Varaždin, February 2013, Krešić v. FOI, not published.

  111. 111.

    On different opinions in comparative literature, see Leible (2011), p. 29. Basedow (2008), p. 230.

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  1. Faculty of Law, University of Rijeka, Rijeka, Croatia

    Emilia Mišćenić

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  1. Jean Monnet Department of European Public Law, University of Rijeka, Rijeka, Croatia

    Nada Bodiroga-Vukobrat

  2. Court of Justice of the European Union, Luxembourg, Luxembourg

    Siniša Rodin

  3. University of Applied Sciences, Hochschule für öffentliche Verwaltung und Finanzen Ludwigsburg, Ludwigsburg, Germany

    Gerald Sander

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Mišćenić, E. (2016). The Impact of the Croatian Anti-Discrimination Law on Private Law Relations. In: Bodiroga-Vukobrat, N., Rodin, S., Sander, G. (eds) New Europe - Old Values?. Europeanization and Globalization, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-02213-0_6

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