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A Bird’s Eye View on EU Anti-Discrimination Law: The Impact of the 2000 Equality Directives

  • Uladzislau Belavusau and Kristin Henrard

Abstract

The year 2000 marked the birth of EU anti-discrimination law as a field in its own right, with the adoption of two major Equality Directives. They extended the prohibition of discrimination with five additional grounds and expanded the material scope of equality regulation. Having reached its eighteenth birthday in the year 2018, EU anti-discrimination law can now celebrate its adulthood and deserves a bird’s eye exploration of its achievements, failures, and prospects. The present Article provides this exploration by zooming in on these twin Directives, as well as on the “new” grounds of discrimination planted therein, namely race and ethnicity—the grounds introduced by the Race Equality Directive—religion, sexual orientation, age, and disability—the grounds introduced by Framework Equality Directive—and the related jurisprudence of European courts. It first outlines the genesis and main stages in the development of EU anti-discrimination law, followed by a discussion of major normative and practical themes emerging in EU anti-discrimination law after 2000, such as the personal and material scope of the Directives, new forms of discrimination, mechanisms to counteract discrimination, and the proceduralization of EU anti-discrimination law.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the originalwork is properly cited.

Footnotes

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Uladzislau Belavusau is a Senior Researcher in European Law at the T.M.C. Asser Institute (The Hague) – the University of Amsterdam (The Netherlands). The authors would like to thank Mark Bell, Cris van Eijk, Aylin Gayilbi, Dimitry Kochenov, Christa Tobler, Lisa Waddington, Bruno De Witte and anonymous peer reviewers of the German Law Journal for all the precious comments.

**

Kristin Henrard is Professor of Fundamental Rights at the Erasmus University Rotterdam (The Netherlands).

Footnotes

References

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1 Hélène Glykatzi-Ahrweiler, European Community as an Idea: The Historical Dimension, in 1 The Idea of European Community in History: conference proceedings, 25 (Evangelos Chrysos et al. eds., 2003); Paul Cartledge, Ancient Greek Political Thought in Practice 8–9 (2009). While ancient Greeks admittedly did not have the same concept of egalitarian equality as we share in modernity after the French Revolution—they excluded women and slaves—they did distinguish between equal rights of birth (isogonia), equality before the law (isopoliteia), equality in the body politics (isonomia), equality in economic distribution (isomoiria), equal prosperity and well-being (eudaimonia), and even equality regarding freedom of speech (isegoria). Rediscovered and philosophized ab novo during the Enlightenment and 18th century revolutions, the principle of equal treatment gained serious transnational recognition after World War II in a number of international instruments, including the Universal Declaration of Human Rights, ICCPR, ICESCR, CEDAW, CERD, CRDPD, and the ECHR.

2 Europe’s Justice Deficit? (Dmitriy Kochenov et al. eds., 2015).

3 Although the term “anti-discrimination law” originates from the US doctrine, it has since gained sufficient currency in literature and law courses around the globe. Alternative terminology in recent literature for the same concept include “EU law of equal opportunities,” “EU equality law,” “EU non-discrimination law,” and even “EU antidiscrimination law,” where antidiscrimination is spelled as one word.

4 Directive 2000/43, Implementing the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin, 2000 O.J. (L 180/22) [hereinafter Race Equality Directive or RED]; Directive 2000/78, Establishing a General Framework for Equal Treatment in Employment and Occupation, (2000) O.J. (L 3030/16) [hereinafter Framework Equality Directive or FED].

5 See Dagmar Schiek, From European Union Anti-Discrimination Law Towards Multidimensional Equality Law for Europe, in European Union Non-Discrimination Law: Comparative Perspectives on Multidimensional Equality Law 448, 3–4 (Dagmar Schiek & Victoria Chege eds., 2009).

6 See Peter Dunne, Towards Trans and Intersex Equality: Conflict or Complementarity?, in The Legal Status of Intersex Persons 300 (Jens M. Scherpe et al. eds., 2018); The Treaty on the Functioning of the European Union, May 9, 2008, 2008 O.J. (C 115) 117-18 [hereinafter TFEU]. As will be explained in more detail below, EU law has been treating rights of transsexuals within the cloisters of gender equality. Hence, this Article—which looks beyond gender jurisprudence—will focus mainly on gay and lesbian rights, and much less on the law regarding transsexuality. For recent account of the latter; The Legal Status of Intersex Persons (Jens M. Scherpe et al. eds., 2018).

7 Technically, the assessment should start from July 2003, when Member States undertook the obligation to transpose these instruments into national legislation.

8 See EU Action Against Discrimination: Activity Report 2007–2008 2.1.1 COM (April 2009); see also Barbara Havelková, Resistance to Anti-Discrimination Law in Central and Eastern Europe: A Post-Communist Legacy?, 17 German L. J. 30, 629 (2016) (noting the Czech Anti-Discrimination Act, which should have been in place at the time of accession by the Czech Republic to the EU in 2004, was only adopted and entered into force in 2009).

9 See Terri E. Givens & Rhonda E. Case, The Politics of Transposition in Britain, France, and Germany, in Legislating equality: the politics of antidiscrimination policy in Europe, 92–117 (2014).

10 Havelková, supra note 8.

11 The Court has delivered only two preliminary rulings regarding race and ethnic origin and two regarding religious discrimination, the latter only in 2017.

12 Since the Treaty of Amsterdam (1997), which first provided the grounds to legislate in this area on the Union level, and the Equality Directives 2000 that have followed.

13 Gráinne De Búrca, The Trajectories of European and American Antidiscrimination Law, 60 Am. J. Comp. L. 1, 1 (2012) (noting many would even find this garden more fruitful than its American counterpart at the moment); see also Johanna Croon, Comparative Institutional Analysis, the European Court of Justice and the General Principle of Non-Discrimination—or—Alternative Tales on Equality Reasoning, 19 Eur. l. j. 153, 153 (2013) (dismantling the myth about the terribly inconsistent application of the equality-principle by the Court of Justice).

14 See Alexander Somek, Engineering equality: an essay on European anti-discrimination law (2011) (critiquing the demarcation of EU anti-discrimination law beyond the traditional French and German obsession with droits sociaux actually invites left-wing critique, which insists on a more re-distributionist and de-commodifying approach to empower the poor, immunizing them from market dependency).

15 See Stijn Smismans, The European Union’s fundamental rights myth, 48 J. Common Mkt. Stud. 45, 45 (2010); see also Philip Alston et al., The EU and Human Rights (1999).

16 See The Euroafrican Relaunch: The Rome Treaty Negotiations, 1955-1957, in Eurafrica: The Untold History of European Integration and Colonialism (Peo Hansen & Stefan Jonsson eds., 2014); see infra for a more detailed account of the gradual expansion of grounds of discrimination in EU law. The absence of the prohibition of discrimination on grounds of race or ethnic origin, when the Treaty of Rome created the European Economic Community in 1957, was only “natural,” given that half of its Member States—and a number of subsequently acceding countries—remained colonial empires at that time. For more information about this aspect and the initially envisaged project of Eurafrique.

17 See Alexandra Prechal, Competence Creep and General Principles of Law, 3 Rev. Eur. Admin. L. 5–22, 20 (2010).

18 Aristotle, 3 Nichomachean Ethics.

19 See Kristin Henrard, Equal rights versus special rights: Minority protection and the prohibition of discrimination (2007); see also Sandra Fredman, Discrimination Law (2011); see also Ann Numhauser-Henning, Legal Perspectives on Equal Treatment and Non-Discrimination (2001).

20 See Christa Tobler, Indirect Discrimination: A Case Study Into the Development of the Legal Concept of Indirect Discrimination Under EC Law (2005).

21 See Mark Bell & Lisa Waddington, Exploring the Boundaries of Positive Action under EU law: A Search for Conceptual Clarity, 48 Common Mkt. L. Rev. 1503, 1503 (2011); see also Daniela Caruso, Limits of the Classic Method: Positive Action in the European Union after the New Equality Directives, 44 Harv. Int’l L. J. 331, 331 (2003); see also Colm O’Cinneide, Positive Action and the Limits of Existing Law, 13 Maastricht J. Eur. & Comp. L. 351, 351 (2006).

22 See Evelyn Ellis & Philippa Watson, EU anti-discrimination law (2012); see also infra on the central role of the Court in the development of EU anti-discrimination law. Note that Ellis and Watson also identify three phases, while distinguishing the second phase as the period between 1987 and 1997 due to the multiple amendments of the EEC treaty during that time, as well as the significant stream of judgments produced by the CJE. For reasons that will be more fully explained further, we identify the three phases on the basis of the EEC Treaty, the Amsterdam Treaty, and the Lisbon Treaty.

23 See Jo Shaw, Mainstreaming Equality in European Union Law and Policymaking, 58 Current Legal Probs. 255–312 (2004) (“[I]n one guise or another, the concept of equality has always been central to the evolving legal order of the EU.”).

24 Mark Bell, Anti-discrimination law and the European Union 6–12 (2002).

25 Ellis & Watson, supra note 22, at 2.

26 TFEU, supra note 6, art. 45.

27 Also referenced in literature as EEC art. 141 in the Treaty nomenclature during the period between Maastricht (1992) and Lisbon (2007) Treaties.

28 Bell, supra note 24, at 8; see also Silke Roth, Gender politics in the expanding European Union: Mobilization, inclusion, exclusion (2013); Dagmar Schiek, Broadening the scope and the norms of EU gender equality law: Towards a multidimensional conception of equality law, 12 Maastricht J. Eur. & Comp. L. 427–466, 427 (2005) (noting that Mark Bell highlights, “the French delegation had identified differences in national legislation on equal pay for men and women as being likely to disturb the balance of trade in the common market.” This reasoning was built on the premise that countries that do not protect equal pay for women can reduce their production costs due to their reliance on cheap female labor).

29 Uladzislau Belavusau, EU Sexual Citizenship: Sex Beyond the Internal Market, in EU Citizenship And Federalism: The Role Of Rights 417–42 (Dimitry Kochenov ed., 2015).

30 Id.

31 Morten Rasmussen, How to Enforce European law? A New History of the Battle Over the Direct Effect of Directives, 1958–1987, 23 Eur. L. J. 290, 290 (2017).

32 Case 80/70, Defrenne I, Gabrielle Defrenne v. Belgian State, 1971 E.C.R. 445; see also Case 43/75 Defrenne II, Gabrielle Defrenne v. Société anonyme belge de navigation aérienne Sabena, 1976 E.C.R. 455; see also Case 149/77 Defrenne III, Gabrielle Defrenne v. Société anonyme belge de navigation aérienne Sabena, 1978 E.C.R. 1365 (The first equality case was adjudicated in Luxembourg in the 1970Case 43/75 Defrenne II, while primary law did not offer any anti-discrimination provisions apart from EEC art. 141, which maintained that men and women should enjoy equal pay for equal work. Vogel-Polsky, who used the Defrenne saga to mainstream gender non-discrimination in EU law, supported Ms. Defrenne, the plaintiff employed as a flight attendant. She was essentially the first to question whether EEC art. 119 had direct effect. See Eliane Vogel-Polsky, L’article 119 du traité de Rome peut-il être considéré comme self-executing, J. des tribunaux 233–243, 233 (1967). For more information about Vogel-Polsky, see Eliane Gubin & Catherine Jacques, Éliane Vogel-Polsky: une femme de conviction (2007)).

33 In this respect, the jurisprudence of the Court in the follow-up phases described infra is different, because the Court could not rely on the direct effect of TFEU art. 19—TEC art. 13—which was designed by the Amsterdam Treaty as clearly requiring the adoption of secondary legislation to be effective. Thus, the Equality Directives 2000 are central in understanding the structure and development of EU anti-discrimination law beyond gender.

34 Of particular relevance—and in part inspirational for 2000 Equality Directives—are: Directive 75/117/EEC, on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, 1975 O.J. (L 45/19); 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, 1976 O.J. (L 39/40); Directive 79/7/EEC 79/7/EEC, on the progressive implementation of the principle of equal treatment for men and women in matters of social security, 1978 O.J. (L 6/24); Directive 86/378/EEC, on the implementation of the principle of equal treatment for men and women in occupational social security schemes, 1986 O.J. (L 225/40); Directive 86/613/EEC, 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, 1986 O.J. (L 359/56); Directive 92/85/EEC, 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 Article 16 (1) of Directive 89/391/EEC), 1992 O.J. (L 348/1); Directive 96/34/EC, on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, 1996 O.J. (L 145/4); Directive 97/80/EC, on the burden of proof in cases of discrimination based on sex, 1997 O.J. (L 14/6); Directive 2002/73/EC, of the European Parliament and of the Council amending 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 (Text with EEA relevance), 2002 O.J. (L 269/15) (substantially amending the 1976 Equal Treatment Directive by adding definitions of indirect discrimination, harassment, and sexual harassment, and requiring Member States to set up equality bodies to promote, analyze, monitor, and support equal treatment between women and men); Directive 2004/113/EC, implementing the principle of equal treatment between men and women in the access to and supply of goods and services, 2004 O.J. (L 373/37); Directive 2006/54/EC, of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), 2006 O.J. (L 204/23) [hereinafter Equal Treatment Directive] (to enhance the transparency, clarity, and coherence of the law, this Directive was adopted in 2006, putting the existing provisions on equal pay, occupational schemes, and the burden of proof into a single text).

35 Uladzislau Belavusau, From Lëtzebuerg to Luxembourg: EU Law, Non-Discrimination and Pregnancy, 2 Eur. L. Rep. 45–49, 45 (2010) (overviewing the case law regarding pregnancy and child-raising); see also Samantha Besson, Gender Discrimination under EU and ECHR Law: Never Shall the Twain Meet?, 8 Hum. Rts. L. Rev. 647–82 (2008); Denis Martin, Strasbourg, Luxembourg et la discrimination: influences croisées ou jurisprudences sous influence?, 69 Revue Trimestrielle des Droits de l’Homme 107, 132 (2007) (echoing a corresponding liberalization at the European Court of Human Rights, making European law an important arena for the refinement of gender citizenship).

36 Case C-13/94 P v. S and Cornwall County Council, 1996 E.C.R. I-2143; see also Case C-117/01 K.B. v. National Health Service Pensions Agency and Secretary of State for Health, 2004 E.C.R. I-541.

37 Ilda Figueiredo, Report on the assessment of the results of the 2006-2010 Roadmap for Equality between women and men, and forward-looking recommendations (2010) (incorporating into Directive 2006/54/EC, Recital 3 Preamble:

The Court of Justice has held that the scope of the principle of equal treatment for men and women cannot be confined to the prohibition of discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of rights which it seeks to safeguard, it also applies to discrimination arising from the gender reassignment of a person.

In June 2010, the European Parliament adopted a resolution—the “Figueiredo Report”—calling for an inclusive EU gender equality strategy, specifically addressing issues linked to gender identity).

38 Cf. TFEU, supra note 6, art. 157 (original EEC art. 119). “Men and women should enjoy equal pay for equal work.” The original EEC art. 119 is now incomparably broader than TFEU art. 19 that has given rise to 2000 Equality Directives. TFEU art. 157 states:

  1. 1.

    1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

  2. 2.

    2. For the purpose of this article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.

    Equal pay without discrimination based on sex means:

    1. (a)

      (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;

    2. (b)

      (b) that pay for work at time rates shall be the same for the same job.

  3. 3.

    3. The Council, acting in accordance with the procedure referred to in Article 251, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.

39 TEC art. 13 (now TFEU art. 19).

40 This is one of the central themes in the monograph by Bell, supra note 24.

41 In this period, the CJEU only rarely referred to human dignity as underlying the right to equal treatment, like in Case C-13/94 P. v S., supra note 36, at para. 22.

42 Bruno De Witte, From a “Common Principle of Equality” to “European Antidiscrimination Law,” 53 Am. Behav. Sci. 1715–30, 1715 (2010) (highlighting the principle of equality). Interestingly, the follow-up Equality Directives of 2000 refer to TEU art. 6 as inspiration in their Preambles. See e.g., Recital (2) in the Preamble to Race Equality Directive.

43 Bruno De Witte, The Crumbling Public/Private Divide: Horizontality in European Anti-Discrimination Law, 13 Citizenship Stud. 515–25 (2009).

44 Bruno De Witte, National Equality Institutions and the Domestication of EU Non-Discrimination Law, 18 Maastricht J. Eur. & Comp. L. 157, 161 (2011); see also Rhonda Evans Case & Terri E. Givens, Re-engineering Legal Opportunity Structures in the European Union? The Starting Line Group and the Politics of the Racial Equality Directive, 48 J. Common Mkt Stud. 221, 221 (2010); Bell, supra note 24.

45 In 2000, Jörg Haider's Freedom Party unexpectedly came in second after the Social Democrats—SPÖ—in the Austrian parliamentary elections.

46 Wojciech Sadurski, Adding Bite to a Bark: The Story of Article 7, EU Enlargement, and Jorg Haider, 16 Colum. J. Eur. L. 385 (2009).

47 Havelková, supra note 8 (confirming the correctness of this political prediction by the vivid resistance of a number of new Member States, many of whom have delayed transposition or have faced significant criticism regarding the way they have transposed Equality Directives).

48 In 2007, the Commission was pursuing legal proceedings against no fewer than fourteen Member States for belated or incomplete implementation of RED and against seventeen Member States related to the transposition of FED.

49 In this regard, scholars cite an emblematic statement by H. Ladeur, the Dean of Law Faculty at Hamburg University, who suggested “[t]hat [the Anti-Discrimination Law] shall be integrated into the [German Civil Code] with its dear systematic liberal approach, one of the masterpieces of European legal culture, has to be regarded as an act of legal vandalism”; see also Givens & Case, supra note 9, at 92; see also infra on Germany’s resistance to the Commission proposal for a new equality directive on the same grounds as Directive 2000/78.

50 Thien Uyen Do, 2011: A Case Odyssey into 10 Years of Anti-Discrimination Law, Eur. Anti-Discrimination L. Rev. 11, 12 (2011) (calling these pioneering judgments “explosive”).

51 Case C-144/04 Werner Mangold v. Rudiger Helm, 2005 E.C.R. I-9981.

52 Case C-303/06 Coleman v. Attridge Law and Steve Law, 2008 E.C.R. I-5603.

53 Case C-54/07 Centrum voor de Gelijkheid van Kansen en Racismebestrijding v. firma Feryn BV, 2008 E.C.R. I-5187.

54 Case C-267/06 Maruko v. Versorgungsanstalt der deutschen buhnen, 2008 E.C.R. I-1757.

55 Ellis & Watson, supra note 22, at 13.

56 TEU arts. 2–4, 9, 21; TFEU, supra note 6, arts. 8, 153(1), 157(4). See also Rebecca Zahn, The EU Lisbon Treaty: What implications for anti-racism?, Eur. Network Against Racism 11 (Nov. 2009), https://www.storre.stir.ac.uk/bitstream/1893/6937/1/FINAL-lisbontreaty_EN_LRfinal.pdf.

57 Damian Chalmers et al., European Union law: Cases and Materials (2010) (calling TFEU art. 10 “the most significant commitment to promoting equality outside the framework of the rights-based model”).

58 Charter of Fundamental Rights of the European Union [2016] O.J. C202/2.

59 TEU art. 6(1).

60 Opinion of AG Tizzano, at paras. 27–28, Case C-173/99 BECTU v. Secretary of State for Trade and Industry, 08/02/2001, http://curia.europa.eu/juris/document/document.jsf?text=&docid=46070&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=2537372. See also Case T-54/99 Max Mobil Telekommunkation Service GmbH v. Commission 2002 E.C.R. II-00313, paras. 48, 57; Case C-540/03 European Parliament v. Council, 2006 E.C.R. I-05769; Case C-432/05 Unibet 2007, E.C.R. I-02271, para. 37; Case C-438/05 Viking Line 2007, E.C.R. I-10779. See the discussion in Steve Peers, The EU Charter of rights and the right to equality, 11 ERA F. 571, 571 (2011); Case C-540/03 European Parliament v Council, 2006 E.C.R. I-05769, para. 38 (noting that the fact that the Community legislator itself referred to the Charter in the Directive at issue in the latter case presumably helped persuading the Court to similarly acknowledge the Charter’s existence. Indeed, the Court highlighted that, “while the Charter is not a legally binding instrument, the Community legislator did, however, acknowledge its importance by stating, in the second recital in the preamble to the Directive, that the Directive observes the principles recognized not only by Article 8 of the ECHR but also in the Charter”).

61 Peers, supra note 60, at 572. See also Elizabeth F. Defeis, The Treaty of Lisbon and Human Rights, 16 ILSA J. Int’l & Comp. L. 413, 416 (2009).

62 Defeis, supra note 61, at 416.

63 See Marek Safjan, Fields of application of the Charter of Fundamental Rights and constitutional dialogues in the European Union, EUI LAW, Centre for Judicial Cooperation, DL, 2014/2, at 2 (noting that the Charter is relied upon to “influence the process of interpretation, of determination of the very content of particular norms, their extent and legal consequences, and thus they provide for the enlargement of the field of application of the European rules in the national legal orders”).

64 Francesca Ferraro & Jesús Carmona, Fundamental rights in the European Union: The Role of the Charter after the Lisbon Treaty, Eur. Parliamentary Res. Serv. Briefing 3 (2015).

65 See Gráinne De Búrca, The Drafting of the EU Charter of Fundamental Rights, 26 Eur. L. Rev. 126, 136 (2001) (analyzing the phrase “implementing Union law” in CFR art. 51).

66 Commission Proposal for a Council Directive Implementing the Principle of Equal Treatment between Persons Irrespective of Religion or Belief, Disability, Age or Sexual Orientation, COM (2008) 426 final (July 2, 2008); Commission staff working document accompanying the proposal for a Council directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation—Summary of the impact assessment, COM (2008) 426 final, SEC (2008) 2180 (July 2, 2008).

67 Mark Bell, The Principle of Equal Treatment: Widening and Deepening, in The Evolution of EU Law 611, 620 (Paul Craig & Gráinne de Búrca eds., 2nd ed. 2011).

68 See Anooth Chakelian, Rise of the nationalists: a guide to Europe’s far-right parties New Statesman (2017), https://www.newstatesman.com/world/europe/2017/03/rise-nationalists-guide-europe-s-far-right-parties (last visited Oct. 25, 2018).

69 Presidency of the Council of the EU, Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation—Progress Report, 14867/17 paras. 2–4 (Nov. 24, 2017). Some of the states raising concerns have good track records in terms of anti-discrimination law—and human rights more generally—such as Germany. See also supra about initial optimism and subsequent disillusions of such states with regard to the 2000 Directives.

70 Mark Bell, Advancing EU Anti-Discrimination Law: The European Commission’s 2008 Proposal for a New Directive, 3 Equal Rts. Rev. 11, 11–13 (2009).

71 Ellis & Watson, supra note 22, at 495.

72 See Armin Von Bogdandy & Ingo Venzke, On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority, 26 Leiden J. Int’l L. 49 (2013). See also Andrew Guzman, The Consent Problem in International Law, Berkeley Program in Law and Economics Working Paper Series 55 (2011); Vassilis P. Tzevelekos, Juris Dicere: Custom as a Matrix, Custom as a Norm, and the Role of Judges and (their) Ideology in Custom Making, in The Power of Legality: Practices of International Law and their Politics 191, 206 (2016).

73 Ellis & Watson, supra note 22, at 501–02.

74 Id. at 498.

75 Case C-96/80 JP Jenkins v. Kingsgate (Clothing Productions) Ltd, 1981 E.C.R. 00911. See also Case C-170/84 Bilka-Kaufhaus GmbH v. Karin Weber von Hartz, 1986 E.C.R. 01607; Case C-127/92 Enderby v. Frenchay Health Authority and Secretary of State for Health 1993, E.C.R. I-05535. Regarding the CJEU’s softening approach towards positive action, see Case C-476/99 H. Lommers v. Minister van Landbouw Natuurbeheer en Visserij, 2002 E.C.R. I-02891.

76 Joined Cases 117/76 and 16/77 Albert Ruckdeschel & Co. and Hansa-Lagerhaus Ströh & Co. v. Hauptzollamt Hamburg-St. Annen; Diamalt AG v. Hauptzollamt Itzehoe, 1977 E.C.R. 1753. See also Case C-283/83 Firma A. Racke v. Hauptzollamt Mainz, 1984 E.C.R. 3791; Case C-15/95 EARL de Kerlast v. Union régionale de coopératives agricoles (Unicopa) and Coopérative du Trieux, 1997 E.C.R. I-01961; Case C-292/97 Kjell Karlsson and Others, 2000 E.C.R. I-02737.

77 Joined cases C-231/06 to C-233/06 Office nationale des pensions, 2007 E.C.R. I-05149. See also Case C-81/12 Asociaţia Accept v. Consiliul Naţional pentru Combaterea Discriminării, EU:C:2013:275, para. 61.

78 See Joined Cases C-75/82 and C-117/82 Razzouk & Beydoun v. Commission, 1984 E.C.R. 01509, para. 16. See also Case C-147/80 Jürgen Römer v. Freie und Hansestadt Hamburg, 2011 E.C.R. I-03591; Case C-150/85 Jacqueline Drake v. Chief Adjudication Officer, 1986 E.C.R. 01995; Case C-303/06 Coleman, supra note 52; Colm O’Cinneide, The Constitutionalization of Equality within the EU Legal Order: Sexual Orientation as a Testing Ground, 22 Maastricht J. Euro. & Comp. L. 370, 371 (2015).

79 See Case C-237/94 O’Flynn v. Adjudication Officer, 1996 E.C.R. I-02617. See also Case C-96/80 Jenkins, supra note 75.

80 Case C-144/04 Mangold, supra note 51. See also EU Anti-Discrimination Law Beyond Gender (Uladzislau Belavusau & Kristin Henrard eds., 2018).

81 IP Berlin, Mangold v. HelmECJ Case C-144/04: Did the Court Get it Wrong? (2013); Lisa Waddington, Recent Developments and the Non-Discrimination Directives: Mangold and More, 13 Maastricht J. Eur. & Comp. L. 365–73, 365 (2006). See also Tamara Ćapeta, The Advocate General: Bringing Clarity to CJEU Decisions? A Case-Study of Mangold and Kücükdeveci, 14 Cambridge Y.B. Eur. L. Stud. 563–86, 563 (2012).

82 Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v. Conseil des ministers, 2011 E.C.R. I-00773.

83 Ellis & Watson, supra note 22, at 508.

84 See Kristin Henrard, The Effective Protection against Racial Discrimination and the Burden of Proof: Making up the Balance of the Court of Justice’s Guidance, in Anti-Discrimination Law Beyond Gender (Uladzislau Belavusau & Kristin Henrard eds., 2018).

85 See Ellis & Watson, supra note 22, at ch. 4 (noting this commonality in approach across the distinctive grounds of discrimination allows for the identification and discussion of “key concepts in EU anti-discrimination law,” such as direct and indirect discrimination or burden of proof, as is reflected in textbooks on EU anti-discrimination law).

86 See Erica Howard, The Case for a Considered Hierarchy of Discrimination Grounds in EU Law, 13 Maastricht J. Eur. & Comp. L. 445, 420 (2006). See also Lisa Waddington & Mark Bell, More Equal than Others: Distinguishing European Union Equality Directives, 38 Common Mkt. L. Rev. 587, 587 (2001) (highlighting the alleged hierarchy embedded in the set-up of the EU Equality Directive).

87 Case C-54/07 Feryn, supra note 53. See also Case C-83/14 CHEZ Razpredelenie Bulgaria AD v. Komisia za zashtita ot diskriminatsia EU:C:2015:480, Judgment of 16 July, 2015.

88 Case C-157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v. G4 S Secure Solutions NV EU:C:2017:203. See also Case C-188/15 Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v. Micropole SA EU:C:2017:204.

89 See generally Raphaële Xenedis, Multiple Discrimination in EU Anti-Discrimination Law: Towards Redressing Complex Inequality?, in EU Anti-Discrimination Law Beyond Gender (Uladzislau Belavusau & Kristin Henrard eds., 2018).

90 For the scope of application, see Article 3 of the Race Equality Directive (compare to the modest scope embedded in Article 3 of the Framework Equality Directive).

91 RED, supra note 4, art. 3(2) stipulates that it does not cover difference of treatment based on nationality.

92 FED, supra note 4, art. 4(2) stipulates:

[T]his Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.

93 Julie C. Suk, Procedural Path Dependence: Discrimination and the Civil-Criminal Divide, 85 Wash. U. L. Rev. 1315, 1315 (2007) (noting this might be attributed to the procedural path-dependence. On the continent, race discrimination traditionally pertains to the field of criminal law rather than civil or anti-discrimination regulation as in the USA. For this point, in the context of the comparative study on US-French law).

94 Case C-208/09 Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien 2010, E.C.R. I-13693. See also Case C-391/09 Malgožata Runevič-Vardyn & Łukasz Paweł Wardyn v. Vilniaus miesto savivaldybės administracija & Others, 2011 E.C.R. I-03787; Dimitry Kochenov, When Equality Directives Are Not Enough: Taking an Issue with the Missing Minority Rights Policy in the EU, in EU Anti-Discrimination Law Beyond Gender (Uladzislau Belavusau & Kristin Henrard eds., 2018) (analyzing of this stream of cases, critiquing the Court for playing the tune of nationalism).

95 Adam Lazowski et al., The Importance of Being Earnest: Spelling of Names, EU Citizenship and Fundamental Rights, 11 Croatian Y.B. Eur. L. & Pol. 1, 1 (2015) (stating that TEU art. 4(2) obliges EU to respect Member States’ “national identities, inherited in their fundamental structures”).

96 Case C-528/13 Geoffrey Léger v. Ministre des Affaires sociales, de la Santé et des Droits des femmes and Etablissement français du sang EU:C:2015:288.

97 Not only does the FED not cover healthcare, TFEU art. 168(7) also provides that “[u]nion action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care.”

98 For critique of the judgement, see Uladzislau Belavusau, Towards EU Sexual Risk Regulation: Restrictions on Blood Donation as Infringement of Active Citizenship, 7 Eur. J. Risk Reg. 801, 802 (2016). See also Alina Tryfonidou, The Impact of the Framework Equality Directive on the Protection of LGB Persons and Same-Sex Couples from Discrimination in EU law, in EU Anti-Discrimination Law Beyond Gender, 244–45 (Uladzislau Belavusau & Kristin Henrard eds., 2018).

99 Carlos Closa & Dimitry Kochenov, Reinforcing rule of law oversight in the European Union (2016).

100 Case C-286/12 Commission v, Hungary EU:C:2012:687.

101 Uladzislau Belavusau, On Age Discrimination and Beating Dead Dogs: Commission v. Hungary, 50 Common Mkt. L. Rev. 1145, 1145 (2013) (analyzing the case, including its age and rule of law components).

102 Ordonnance of the Vice-President of the Court of Justice of the European Union (Oct. 19, 2018) EU:C:2018:852.

103 Daniel Sarmiento, Interim Revolutions: the CJEU gives its first interim measures ruling on the rule of law in Poland EU Law Analysis (2018), http://eulawanalysis.blogspot.com/2018/10/interim-revolutions-cjeu-gives-its.html.

104 See FED, supra note 4, art. 3(1).

105 See FED, supra note 4, preamble at para. 36. The Court has delivered important and ardently-discussed jurisprudence regarding the rights of trade unions in advancing their claims in Case C-341/05 Laval un Partneri, 2007 E.C.R. I-11767, and Case C-438/05 Viking, supra note 60. For analysis, see Uladzislau Belavusau, The Case of Laval in the Context of the Post-Enlargement EC Law Development, 9 German L.J. 2279, 2279 (2008).

106 See De Witte, supra note 42 (according to De Witte, the European-driven horizontalization of anti-discrimination law is a major challenge for many national legal systems and contributes to the emergence of new, but not uncontroversial, conceptions of inclusive citizenship).

107 Nevertheless, FED art. 15 makes a reservation for Northern Ireland, where positive discrimination is allowed in order to tackle the under-representation of one of the main religious communities in the police service and education.

108 Iceland, Liechtenstein, Norway, and Switzerland.

109 See Dóra Gudmundsdóttir, The Framework Directive and Icelandic Law: Sexual Orientation Discrimination, in Equality Into Reality: Action for Diversity and Non-discrimination in Iceland 333 (Evelyn Ellis & Kristin Benediktsdottir eds., 2011).

110 Bruno De Witte, New Institutions for Promoting Equality in Europe: Legal Transfers, National Bricolage and European Governance, 60 Am. J. Comp. L. 49, 49 (2012).

111 De Witte, supra note 42, at 160 (according to De Witte, we have witnessed “a neat migration sequence US → UK → NL → EU → all individual EU states”).

112 RED, supra note 4, art. 13.

113 Case C-54/07 Feryn, supra note 53. For an overview of the case, see Kristin Henrard, The First Substantive ECJ Judgement on the Racial Equality Directive: A Strong Message in a Conceptually Flawed, and Responsively Weak Bottle 1 (2009); Uladzislau Belavusau, Fighting hate speech through EU law, 4 Amsterdam L. F. 20, 20 (2012).

114 Case C-81/12 Asociaţia Accept, supra note 77. For an extensive commentary, see Uladzislau Belavusau, A Penalty Card for Homophobia from EU Non-Discrimination Law: Comment on Asociaţia Accept, 21 Colum. J. Eur. L. 353, 353 (2014).

115 Uladzislau Belavusau & Dimitry Kochenov, Federalizing Legal opportunities for LGBT Movements in the Growing EU, in EU Enlargement and Gay Politics 96 (2016) (noting current EU legal opportunities specifically mapped out for LGBT litigants).

116 Mark Dawson & Elise Muir, Individual, Institutional and Collective Vigilance in Protecting Fundamental Rights in the EU: Lessons from the Roma, 48 Common Mkt. L. Rev. 751, 751–55 (2011) (noting the concept of double vigilance in EU law within the context of Rome protection).

117 Givens & Case, supra note 9, at 128.

118 De Witte, supra note 43, at 178.

119 FED, supra note 4, art. 2(2) maintains that:

(a) [D]irect discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons.

FED art. 2(3) defines harassment, while Article 2(4) generally describes instruction to discriminate against persons on any of the grounds referred to in Article 1 as discrimination.

120 RED, supra note 4, art. 9; a similar measure is contained in FED, supra note 4, art. 11.

121 Tobler, supra note 20 (summarizing the distinctions between direct and indirect discrimination in EU law).

122 Martine Jacoba Busstra, The Implications of the Racial Equality Directive for Minority Protection Within the European Union: An Analysis of the Substantive Provisions of the Racial Equality Directive and Their Implementation in Four Member States: Belgium, Estonia, Hungary and the Netherlands 148–56 (2010).

123 Mathias Möschel, Eighteen Years of Race Equality Directive: A Mitigated Balance, in EU Anti-Discrimination Law Beyond Gender (Uladzislau Belavusau & Kristin Henrard eds., 2018) (discussing national case law, confirming that so far, no CJEU case law on this concept exists).

124 Uladzislau Belavusau, Freedom of speech: Importing European and US constitutional models in transitional democracies (2013) (comparing the approach in continental Europe, to the approach of the U.S. Supreme Court which has enfolded hate speech into the protective scope of the First Amendment. This constitutes perhaps the most striking discrepancy between the two principal Western free speech models).

125 Kathrin S. Zippel, The politics of sexual harassment: A comparative study of the United States, the European Union, and Germany (2006); Rikki Holtmaat, Seksuele intimidatie: de juridische gids (2009). See also Ann Numhauser-Henning & Sylvaine Laulom, Harassment related to sex and sexual harassment law in 33 European countries: Discrimination versus dignity (2011) (claiming that unlike in the US, where harassment is semantically constructed as discrimination, in Europe it is primarily articulated as a concern over dignity).

126 Maria Isabel S. Guerrero, The Development of Moral Harassment (or Mobbing) Law in Sweden and France as a Step Towards EU legislation, 27 B.C. Int’l & Comp. L. Rev. 477, 477 (2004).

127 FED art. 2(3) gives a similar definition with regard to the respective four grounds. The Equal Treatment Directive 2006/54 gives an almost identical definition of harassment with regard to gender, but also adds one more form of discrimination, sexual harassment, consisting of “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature [which] occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.” Equal Treatment Directive, supra note 34, art. 2(1)(d).

128 RED, supra note 4, art. 2(3); FED, supra note 4, art. 2(3).

129 Case C-303/06 Coleman, supra note 52. The plaintiff was the primary caretaker of a disabled child. She was harassed and discriminated against on the grounds of her child’s disability. Although it was not the plaintiff herself who was disabled, the Court established direct discrimination in that case.

130 Case C-81/12 Asociaţia Accept, supra note 77.

131 In both Case C-54/07 Feryn, supra note 53 and Case C-81/12 Asociaţia Accept, supra note 77, the utterances of the employer are essentially offensive claims that easily could have been interpreted under the clauses of harassment in the secondary EU law of non-discrimination. Perhaps the only clear element that separates these two cases from incidents of harassment is that, in both cases, individuals did not experience that type of racist and homophobic bullying during employment but were prevented from employment by virtue of a speech act.

132 Zippel, supra note 125.

133 See Belavusau & Kochenov, supra note 115.

134 Kristin Henrard, Boosting Positive Action: The Asymmetrical Approach Towards Non-discrimination and Special Minority Rights’, 71 Heidelberg J. Int’l L., 388, 388–89 (2011).

135 Id.

136 Equal Treatment Directive, supra note 34, art. 3; RED, supra note 4, art. 5; FED, supra note 4, art. 7; Directive 2004/113, supra note 34, art. 6.

137 Christopher McCrudden & Sacha Prechal, The Concepts of Equality and Non-Discrimination in Europe: A Practical Approach 38 (European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities, Research Paper No. 4/2011, 2011).

138 See Case C-450/93 Eckhard Kalanke v. Freie Hansestadt Bremen 1995 E.C.R. I-03051. See also Case C-409/95 Hellmut Marschall v. Land Nordrhein-Westfalen 1997 E.C.R. I-06363; Case C-158/97 Georg Badeck & Others, interveners: Hessische Ministerpräsident & Landesanwalt beim Staatsgerichtshof des Landes Hessen 2000 E.C.R. I-01875; Case C-407/98 Katarina Abrahamsson & Leif Anderson v. Elisabet Fogelqvist 2000 E.C.R. I-5539.

139 Case C-476/99 Lommers, supra note 75, at para. 39.

140 Case C-319/03 Serge Briheche v. Ministre de l'Intérieur, Ministre de l'Éducation nationale & Ministre de la Justice, 2004 E.C.R. I-08807. See also Case C-366/99 Joseph Griesmar v. Ministre de l'Economie, des Finances et de l'Industrie and Ministre de la Fonction publique, de la Réforme de l'Etat et de la Décentralisation, 2001 E.C.R. I-09383.

141 With regard to disability, there is a fascinating perspective for future discussion about the relation between positive action, on the one hand, and duties of reasonable accommodation, on the other.

142 Lisa Waddington et al., Reasonable Accommodation, in Cases, Materials and Text on National, Supranational and International Non-Discrimination Law 630 (2007).

143 Pierre Bosset & Marie-Claire Foblets, Accommodating diversity in Quebec and Europe: Different Legal Concepts, Similar Results?, in Institutional Accommodation and the Citizen: Legal and Political Interaction in a Pluralist Society 43–50 (2009) (noting that the US was the first country to identify duties of reasonable accommodation; at first through interpretation of the 1964 Civil Rights Act, and in 1972, through an explicit provision on reasonable accommodation duties added to the 1964 Act. In Canada, duties of reasonable accommodation were introduced by jurisprudence as well—more particularly, the 1985 Supreme Court judgment in O’Malley v. Simpsons Sears. Subsequently, duties of reasonable accommodation were judicially recognized in relation to all fourteen enumerated grounds of prohibited discrimination in Section 15 of the Canadian Charter of Rights and Freedoms).

144 U.N. General Assembly, Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, The Concept of Reasonable Accommodation in Selected National Disability Legislation, U.N. Doc. A/AC.265/2006/CRP.1 (Dec. 7, 2005).

145 Gérard Bouchard & Charles Taylor, Building the future: A time for reconciliation: Abridged report 68 (2008) (emphasizing reasonable accommodations do not amount to privileges but are meant to engage in a reasonable adaptation to counteract the rigidity of certain rules or their uniform application, which would not regard the specific traits of individuals).

146 Bosset & Foblets, supra note 143, at 37 (arguing that “the main idea underlying reasonable accommodation is that democratic states must allow everyone to participate fully in society on an equal footing as far as possible”).

147 See Kristin Henrard, Duties of Reasonable Accommodation in Relation to Religion and the European Court of Human Rights: A Closer Look at the Prohibition of Discrimination, the Freedom of Religion and Related Duties of State Neutrality, 5 Erasmus L. Rev. 59, 67 (2012). See also Frederique Ast, Indirect Discrimination as a Means of Protecting Pluralism: Challenges and Limits, in Institutional accommodation and the citizen: legal and political interaction in a pluralist society 97 (2010) (underscoring the right to reasonable accommodation can be portrayed as the corollary of the prohibition of indirect discrimination, but there are various ways to address the disproportionate impact inherent in indirect discrimination, not all of which qualify as reasonable accommodation).

148 U.N. General Assembly, The Concept of Reasonable Accommodation, supra note 144.

149 FED, supra note 4, art. 5; GRDP art. 5(3).

150 Emmanuelle Bribosia et al., Reasonable Accommodation for Religious Minorities: A Promising Concept for European Antidiscrimination Law?, 17 Maastricht J. Eur. & Comp. L. 137, 143 (2010).

151 Jennifer Jackson-Preece, Emerging Standards of Reasonable Accommodation Towards Minorities in Europe?, in Institutional accommodation and the citizen: legal and political interaction in a pluralist society 120 (2010) (considering that duties of reasonable accommodation should be available for members of all structurally disadvantaged groups). See also Mark Bell & Lisa Waddington, Reflecting on Inequalities in European Equality Law, 28 Eur. L. Rev. 349, 362 (2003) (arguing that duties of reasonable accommodation would similarly be justified on grounds of race or religion); Henrard, supra note 147, at 70–76 (arguing that duties of reasonable accommodation do not fall afoul of the prohibition of discrimination notwithstanding their implication of differential treatment).

152 FED art. 5 refers to “disproportionate burden’; other legislations and/or lines of jurisprudence also refer to “undue hardship” or “undue burden.”

153 Bosset & Foblets, supra note 143, at 49–53. See also Christian Brunelle, Discrimination et obligation d’accommodement en milieu de travail syndiqué 248–51 (2001).

154 See earlier references to Jackson-Preece, supra note 151. See also Eugenia Relaño Pastor, Religious Discrimination in the Workplace: Achbita and Bougnaoui, in EU Anti-Discrimination Law Beyond Gender (Uladzislau Belavusau & Kristin Henrard eds., 2018).

155 Proposal for a Council Directive on Implementing the Principle of Equal Treatment Between Persons Irrespective of Religion or Belief, Disability, Age or Sexual Orientation, COM (2008) 426 final (July 2, 2008).

156 Lisa Waddington, The Influence of the UN Convention on the Rights of Persons with Disabilities on EU Anti-Discrimination Law, in EU Anti-Discrimination Law Beyond Gender (Uladzislau Belavusau & Kristin Henrard eds., 2018).

157 Joined cases C-335/11 and C-337/11 HK Danmark, acting on behalf of Jette Ring v. Dansk almennyttigt Boligselskab & HK Danmark, acting on behalf of Lone Skouboe Werge v. Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S ECLI:EU:C:2013:222, Judgement of 11 Apr. 2013 (highlighting cases that clarify that adaptations in terms of working hours could be a reasonable accommodation).

158 Luísa Lourenço & Pekka Pohjankoski, Breaking Down Barriers? The Judicial Interpretation of ‘Disability’ and ‘Reasonable Accommodation’ in EU Anti-Discrimination Law, in EU Anti-Discrimination Law Beyond Gender (Uladzislau Belavusau & Kristin Henrard eds., 2018). (pointing to possible guidance from the supervisory practice of the UN Committee on the Rights of Persons with Disabilities and ECtHR).

* Uladzislau Belavusau is a Senior Researcher in European Law at the T.M.C. Asser Institute (The Hague) – the University of Amsterdam (The Netherlands). The authors would like to thank Mark Bell, Cris van Eijk, Aylin Gayilbi, Dimitry Kochenov, Christa Tobler, Lisa Waddington, Bruno De Witte and anonymous peer reviewers of the German Law Journal for all the precious comments.

** Kristin Henrard is Professor of Fundamental Rights at the Erasmus University Rotterdam (The Netherlands).

Keywords

A Bird’s Eye View on EU Anti-Discrimination Law: The Impact of the 2000 Equality Directives

  • Uladzislau Belavusau and Kristin Henrard

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