Contributed by: Bulgarian Gender Research Foundation, Bulgarian National VAW Monitor

January- May 2008

One year after EU accession, Bulgarians are the poorest EU citizens and have to face one of the highest levels of inflation in Europe (14 %). People’s expectations of an improvement in standards of living have not been met and this has led to mistrust concerning the Government’s capacity to implement further reforms.

Obviously, in this environment, it is difficult to promote sustainable positive trends and changes in policy and legislation in the field of gender equality. Additional barriers to making gender equality a higher priority of the Government continue to be the lack of any real political will, the budgetary constraints, the absence of a gender equality mechanism in Bulgaria, and a lack of knowledge and capacity on the part of representatives of the administration and of the judiciary. Despite the lack of financial support, women’s organisations remain one of the main driving forces concerning the implementation of EU standards on gender equality.

In the first few months of 2008, the Bulgarian Government assessed the level of compliance of Bulgarian legislation with the provisions of the Recast Directive 2006/54/EC. This process provides an opportune moment to stress once again the need for a separate law on gender equality and a respective institutional mechanism. As a matter of fact, Article 20 of the Recast Directive obliges member states to establish a body or bodies to promote, analyse, monitor, and support equal treatment based on sex. These bodies may form part of agencies with competences for the protection of human rights. In order to comply with these requirements, the Bulgarian Government has to critically analyze the competences and performance of the existing equality body – the Commission for Protection from Discrimination – in the field of gender equality. Currently, the Commission has no competence in promoting, analysing, monitoring and supporting equal treatment based on sex, as required by the Directive. Compliance with the Directive has to be confirmed by August 15 this year and there is a hope that this process will trigger the adoption of new legislation and mechanisms in the field.

Legislative Developments

No specific gender equality legislation has been adopted in the first four months of 2008, but there are general legislative provisions, as well as drafts and suggestions for amendments to the legislation, which have the potential of positively impacting equality between men and women. A new Code of Civil Procedure (CPC) has been in force since March 1, 2008. Among other positive changes, the CPC contains new and amended provisions in Chapter 26, ‘Procedure in marital cases.’ Especially relevant for gender equality are the changes in the conciliation procedure and the procedure concerning interim measures during divorce cases. Instead of the so-called ‘conciliation hearing’, which was obligatory in the previous CPC, there are options for mutually agreed mediation or other extra-judicial conciliation procedures. A new regulation is now in place concerning interim measures ordered by the courts during divorce. These measures include temporary arrangements for issues like the use of the family dwelling, the assets acquired during the marriage, child support, and alimony. In order to expedite the procedure, the new code provides for a maximum term of two weeks for issuing such orders, which are not subject to appeal. All these changes favour the better protection of individual rights and the rights of children in the family and will ensure a more effective protection for women against violence.

Another positive step in the achievement of gender equality is the draft of the Family Code, adopted by the Council of Ministers, which was recently introduced in the Parliament. The draft provides for the recognition of some legal consequences of registered partnerships. Several legal regimes concerning property relations are envisioned, including the division of property and marital contracts instead of the existing obligatory regime of community of property. These changes will promote spouses’ freedom of personal development, a principle adopted for the first time in the Family Code draft. The forthcoming innovative legislative solutions (new to the Bulgarian legal system, but corresponding to realities already rooted in society) have provoked reactions from some conservative groups which have claimed that there must be a return to ‘Christian values.’

Suggestions for changes to the Law on Protection against Domestic Violence (in practice since April 2005) are currently being considered by a working group established by the Ministry of Justice. They are aimed at more effective protection for victims of violence by means of civil and criminal law and involve the financial accountability of the State for programs for the prevention and protection of victims of violence. This will be a further step in the implementation of the EU Roadmap on Gender Equality.

Equality Body Decisions

At the end of March 2008, along with its Annual Report for 2007, the Bulgarian equality body announced important decisions under the Law on Protection from Discrimination and concerning the equal treatment of men and women.

The cases decided by the Second Specialized Panel of the Commission for Protection from Discrimination (CPFD) and confirmed by the Supreme Administrative Court are the Devnya Cement case and the Sofia University gender quota case.

In the first case (CPFD Decision No 29 of 4 July 2006, confirmed by the Supreme Administrative Court Decision No 10594 of 1 November 2007) was instigated by a female worker at Devnya Cement, a joint stock company in Varna. The applicant was found to have been continuously treated unequally by receiving unequal pay for work of equal value compared to her male colleagues. The Commission declared that this constituted a violation of Article 14(1) (the equal pay provision) of the Law on Protection from Discrimination (LPFD). Furthermore, the CPFD found that the violation amounted to direct discrimination based on gender within the meaning of Article 4(2) of the LPFD. The Commission’s arguments were that the applicant had been continuously discriminated against in the period from January 2003 until the moment of her retirement – May 2006 – by receiving unequal pay in comparison with her male colleagues appointed to the same position of ‘mill operator’ and performing work of equal value. The defendant could not justify the monthly difference in pay of BGN 45 (around EUR 23) given to the applicant compared to her male colleagues. Moreover, the defendant confirmed that, during the period under consideration, the company failed to ensure equal pay for its workers. Subsequently, the Commission ordered Devnya Cement to discontinue the practice of unequal treatment based on gender and to amend the Collective Agreement to include guarantees of equal pay, irrespective of gender and any other grounds, as required by Article 14(1)–(2) of the LPFD.

 The second case (CPFD Decision No 53 of 14 November 2006, confirmed by the Supreme Administrative Court Decision No 11457 of 20 November 2007) is an interesting case on gender quota for the admission of students as practised by Sofia University. The case was brought to the Commission in 2006 at the initiative of the Association for European Integration and Human Rights – Plovdiv; it was finally decided by the Supreme Administrative Court. The arguments for discrimination based on gender were the following: in 2004 Sofia University applied an admission quota system of 40 % men and 60 % women for the subject ‘Bulgarian Philology.’ As a result, male candidates were discriminated against because they had to compete for fewer places. On the other hand, female candidates were also discriminated against because, in practice, as women generally perform better in examinations, the minimum score for admitted women was higher than the minimum score for admitted men. As a consequence, it was argued, the quota system practised by the University represented discrimination based on gender and the measure could not be justified as a ‘legitimate aim’ within the meaning of Article 7(2)(12) of the LPFD.[1] The Commission and the Supreme Administrative Court did not consider the quota to be a discriminatory measure, and based their decisions on the following arguments: the quota represented differential treatment based on the objective criterion of a difference in the biological development of women and men and in these circumstances represented a measure for ensuring a balanced representation of the two sexes in university education; such a measure was perceived by the Commission and the Court as being also a means of avoiding the complete feminization of the given academic subject and thus of the related professions.

The above-mentioned cases are unique in the practice of the Bulgarian administrative jurisdictions and the Bulgarian courts on gender discrimination issues. The Devnya Cement case is the first case related to equal pay which benefited from the final sanction of the Supreme Administrative Court. The gender quota case is of key importance concerning gender segregation within the labour market, which is a real problem in Bulgaria in the field of the teaching and language professions. Both cases have the potential to generate further case law and debate in society.