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existence of deeds" which positions us in the field of the general principle of the burden of proof which belongs to the petitioner
of proving deeds, however, as an exception, the legislator establishes „deeds which allow to presume the existence of a direct or
indirect discrimination” as defined by G.O. no. 137/2000, republished. This aspect requires in terms of procedure the obligation
of the petitioner in supporting his statements to prove the existence of a deed which could give rise to an assumption of different
treatment applied. At this time, the person against whom the notification was filed has the task to prove that the deeds are not
discrimination. Or, in this respect, it is clear beyond any doubt that it results the exception from ordinary law as regards the
burden of proof, as long as the petitioner is not obliged to prove the lack of justification for the differentiated treatment
(distinction, exclusion, restriction, preference). Or, (See, in this regard the case-law of European Court of Justice, case Bilka
Kaufhaus, par. 31, case C-33/89 Kowalska [1990] ECR I-2591, par. 16, case C-184/89 Nimz [1991] ECR I-297, par. 15, case C-
109/88 Danfoss [1989] ECR 3199, par. 16, case C-127/92, Enderby [1993] ECR 673 , par. 16).
260.      The Steering Committee sets down that the petitioner Romani CRISS quotes the case-law of the European Court of
Justice, namely case C-381/99 Brunnhofer vs. Osterreichischer Bank Postsparkasse [2001] ECR I-4961 sau C196 Vasiliki

Nikoloudi vs. Organismos Tilepikinonion Ellados AE [2005] ECR I-1789. Similar to the reasoning quoted above by the Steering Committee (see infra. par. 6.3.-6.7), the European Court of Justice specifies: „in case the defendant brings evidence by which he shows that the criteria for establishing the existence of a difference of payment between women and men and for identifying the comparable work are met, so that, prima facie there is a discrimination case and then the employer will be obliged to prove that there was no breach of the principle of equal payment. It is obvious that also the interpretation of the European Court of Justice considers in essence the sharing of the burden of proof, since as the Court specifies "in case the defendant brings evidence (...) so that, prima facie, there is a discrimination case", "the employer will be then obliged to prove" that there was no breach of the principle of equal treatment (European Court of Justice Decision C-381/99 Brunnhofer vs. Osterreichischer Bank Postsparkasse [2001] ECR I-4961, par. 52 and 53) As the European Court of Human Rights settled, the difference of treatment becomes discrimination when distinctions are caused between analogous and comparable situations, which are not based on a reasonable and objective justification. The European Court has constantly settled that in order for such a breach to occur „it must be established that persons in analogous or comparable situations in

the field benefit of a preferential treatment and this distinction has no objective or reasonable justification". 261. Thus, the burden of proof as regards the evidence of justification is transferred to the defendant, this having to prove a positive fact, namely that the different treatment applied in the case has an objective and reasonable justification in order to attain a legitimate aim and the means of attainment are proportionate, which is assimilated in practice to the evidence that no discrimination deed was perpetrated. The National Council for Combating Discrimination or courts have a certain margin of appreciation in order to determine if and to what extent the differences between analogous or comparable situations could justify the distinctions of legal treatment applied. In conjunction with the issues of fact subject to settling, the Steering Committee ascertains that it is notified regarding the content of certain acts or deeds which take the form of statements expressed through words. The object subject to settling the petition falls under the analysis of the statements in question, which assumes in the first instance ascertaining the existence of statements and lastly ascertaining the content of the statements as regards the applicability or not of the provisions of Government Ordinance no. 137/2000 on the prevention and sanctioning of all forms of discrimination, subsequently amended and supplemented, republished (Excerpt

from Decision no. 180 of 17.07.2007, Decision no. 440 of 30.07.2008, Decision no. 292 of 14.05.200934).
262.      In the case S. Coleman vs. Attridge Law, Steve Law and in the case Centrum voor gelijkheid van kansen en voor
racismebestrijding vs. Firma Feryin NV, the European Court of Justice showed that according to the principle of reversal of the
burden of proof, the petitioner has the obligation to establish, before the national court a situation of fact which allows the
assumption of a direct discrimination based on one of the forbidden criteria. The adaptation of the norms regarding the burden
of proof is necessary as soon as there is an assumption of discrimination. In case the petitioner established a situation of fact
which would allow the assumption of a direct discrimination against him the effective implementation of the principle of
equality of treatment would then require that the burden of proof should be imposed on the defendants of the main action, that
should prove that there was no breach of the mentioned principle. In this context, the mentioned defendants could contest the
existence of such a breach, establishing by any legal means particularly that the applied treatment is justified by objective
factors and separate from any discrimination on one of the forbidden criteria (see the European Court of Justice, case S
Coleman, ECJ, C-303/06, Decision of 17 July 2008, case Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma

Feryn NV, C-54/07, Decision of 10 July 2008). (Excerpt from Decision no. 510 of 29.10.2009, 121 of 07.07.201035).

34 Committee Decision no. 180 of 17.07.2007, Decision no. 440 of 30.07.2008, Decision no. 292 of 14.05.2009, reasonings drawn-up by the NCCD Steering Committee member Dezideriu Gergely 35 Committee Decision no. 510 of 29.10.2009, 121 of 07.07.2010, reasonings drawn-up by the NCCD Steering Committee member Dezideriu Gergely

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