1.1. Context and background to European non-discrimination law

Last Updated on August 11, 2019 by LawEuro

Handbook on European non-discrimination lawContents

Key points

  • Protection against discrimination in Europe can be found within both EU and Council of Europe law.
  • Both systems operate separately but they can influence each other through their case law.

The term ‘European non-discrimination law’ suggests that a single Europe-wide system of rules relating to non-discrimination exists. It is, however, made up of a variety of sources. This handbook draws mainly from the law of the CoE (focusing on the ECHR) and the EU. These two systems have different origins, structures and objectives.

Although both systems operate separately, there are numerous links between them. The Court of Justice of the European Union (CJEU) refers to ECHR[2] and the European Social Charter (ESC)[3] as providing guidance for the interpretation of EU law. Both acts are also referred to in the EU treaty framework: Article 6 (3) of the Treaty on European Union (TEU) explicitly acknowledges the ECHR as a source of inspiration for the development of fundamental rights in the EU; Article 52 (3) of the EU Charter provides that the meaning and scope of corresponding Charter rights shall be the same as those laid down by the ECHR[4] (although EU law may provide more extensive protection). Article 151 of the Treaty on the Functioning of the European Union (TFEU) and the preamble to the EU Charter mention the European Social Charter. In their case law, the European Court of Human Rights (ECtHR) and the European Committee on Social Rights (ECSR) refer to EU legislation and the CJEU case law.[5]

EU law and the ECHR are closely connected. All EU Member States have joined the ECHR and the CJEU looks to the ECHR for inspiration when determining the scope of human rights protection under EU law. The EU Charter of Fundamental Rights also reflects (though is not limited to) the range of rights in the ECHR. Consequently, EU law is largely consistent with the ECHR. However, if an individual wishes to make a complaint about the EU and its failure to guarantee human rights, they are not entitled to take the EU, as such, before the European Court of Human Rights (ECtHR). Instead, they must either: make a complaint before the national courts, which can then refer the case to the CJEU through the preliminary reference procedure; or complain about the EU indirectly before the ECtHR while bringing action against a Member State.

The Lisbon Treaty contains a provision mandating the EU to join the ECHR as a party in its own right and Protocol 14 to the ECHR amends it to allow this to happen. It is not yet clear when this would happen and what the future relationship between the CJEU and the ECtHR would be.


2. For example, see CJEU, C-510/11 P, Kone Oyj and Others v. European Commission, 24 October 2013, paras. 20-22.

3. For example, see CJEU, Joined cases C-395/08 and C-396/08, Istituto nazionale della previdenza sociale (INPS) v. Tiziana Bruno and Massimo Pettini and Daniela Lotti and Clara Matteucci, 10 June 2010, paras. 31-32.

4. See also Art. 53 of the EU Charter of Fundamental Rights and its Preamble.

5. For example, see ECtHR, Biao v. Denmark, No. 38590/10 [GC], 24 May 2016.


1. Introduction to European non-discrimination law: context, evolution and key principles

1.1. Context and background to European non-discrimination law

1.1.2. European Union: development of nondiscrimination law

1.1.3. European non-discrimination law and UN human rights treaties

1.2. Who receives protection under European non-discrimination law?

1.3. Scope of the ECHR: Article 14 and Protocol No. 12

1.4. Scope of EU non-discrimination law

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