1.1.2. European Union: development of nondiscrimination law

Handbook on European non-discrimination lawContents

Key points

  • EU non-discrimination law comprises a variety of legal acts promoting equality in different areas of life.
  • EU institutions are legally bound to observe provisions of the EU Charter of Fundamental Rights, including prohibition of discrimination. EU Member States must also observe the Charter when acting within the scope of EU law.

The original treaties of the European communities did not contain any reference to human rights or their protection. The creation of an area of free trade in Europe was not expected to have any impact on human rights. However, as cases began to appear before the CJEU alleging human rights breaches caused by Community Law, the CJEU developed a body of judge-made laws, known as the ‘general principles’ of Community Law. According to the CJEU, these general principles would reflect the content of human rights protection found in national constitutions and human rights treaties, in particular the ECHR.[20] The CJEU stated that it would ensure the compliance of Community Law with these principles. With subsequent revisions of the treaties, human dignity, freedom, democracy, equality, the rule of law and respect for human rights became the Union’s founding values, embedded in its treaties and mainstreamed into all its policies and programmes.

The EU anti-discrimination law was originally limited to a provision prohibiting discrimination based on sex in employment. The relevant measures aimed to prevent EU Member States from gaining a competitive advantage by offering lower rates of pay or less favourable working conditions to women. The body of anti-discrimination law evolved considerably, to include areas such as pensions, pregnancy and statutory social security regimes. However, until 2000, non- discrimination law in the EU only applied to employment and social security, and only covered the grounds of sex. In addition, the prohibition of non-discrimination on the basis of nationality is a fundamental principle laid out in the Treaty on the Functioning of the EU (Articles 18 and 45 of the TFEU) and its predecessors.

When the Amsterdam Treaty entered into force in 1999, the EU gained the ability to take action to combat discrimination on a wide range of grounds. This competence led to the introduction of new equality directives, as well as the revision of the existing provisions on sex equality. There is now a considerable body of anti-discrimination law in the EU.

According to Article 2 of the TEU, the non-discrimination principle is one of the fundamental values of the Union. Article 10 of the TFEU requires the EU to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation, when defining and implementing its policies and activities. In 2000, two directives were adopted: the Employment Equality Directive (2000/78/EC)[21] prohibited discrimination on the basis of sexual orientation, religion or belief, age and disability, in the area of employment; and the Racial Equality Directive (2000/43/EC)[22] introduced prohibition of discrimination on the basis of race or ethnicity in the context of employment, but also in accessing the welfare system and social security, as well as goods and services. This was a significant expansion of the scope of non-discrimination law under EU law. It recognised that to allow individuals to reach their full potential in the employment market, it is also essential to guarantee them equal access to areas such as health, education and housing. In 2004, the Gender Goods and Services Directive (2004/113/EC)[23] extended the scope of sex discrimination to the area of goods and services. However, protection on the grounds of sex does not quite match the scope of protection under the Racial Equality Directive. The so-called Gender Equality Directive (recast) (2006/54/EC)[24] guarantees equal treatment only in relation to social security, and not to the broader welfare system, such as social protection and access to healthcare and education.

Although sexual orientation, religious belief, disability and age are only protected grounds in the context of employment, a proposal to extend protection to other areas, such as accessing goods and services (known as the ‘Horizontal Directive’),[25] is currently being debated in EU institutions.

In recognising that its policies could have an impact on human rights and in an effort to make citizens feel ‘closer’ to the EU, the EU and its Member States proclaimed the EU Charter of Fundamental Rights in 2000. The EU Charter contains a list of human rights, inspired by the rights contained in the constitutions of the Member States, the ECHR and universal human rights treaties such as the UN Convention on the Rights of the Child. Under the title ‘Equality’ (Articles 20 to 26), the EU Charter emphasises the importance of the principle of equal treatment in the EU legal order.

The EU Charter of Fundamental Rights,[26] as adopted in 2000, was merely a non- binding ‘declaration’. However, when the Treaty of Lisbon entered into force in 2009, it altered the status of the Charter to make it a legally binding document with the same legal value as the EU treaties. As a result, EU institutions are bound to comply with the Charter, as are EU Member States but only when implementing EU law (Article 51 of the EU Charter). Article 21 of the EU Charter contains a prohibition of discrimination on various grounds. This means that individuals can complain about EU legislation or national legislation that implements EU law, if they feel the Charter has not been respected. National courts can seek guidance for the correct interpretation of EU law from the CJEU through the preliminary reference procedure under Article 267 of the TFEU.

The establishment of new bodies within the EU, such as the European Union Agency for Fundamental Rights (FRA)[27] or the European Institute for Gender Equality (EIGE),[28] have accompanied these developments to promote fundamental rights and equality. Besides that, the European Network of Equality Bodies (Equinet)[29] promotes equality in Europe by supporting and enabling the work of national equality bodies, bringing together 46 organisations from 34 European countries. The EU equal treatment legislation requires Member States to set up an equality body to provide independent assistance to victims of discrimination. Most Member States have implemented this requirement, either by designating an existing institution or by setting up a new body to carry out the tasks assigned by the new legislation. However, no specific guidelines exist for Member States on how these bodies should operate. So far, European anti- discrimination law only requires that equality bodies are set up in the fields of race, ethnic origin and gender. Many countries have bodies that deal with other grounds of discrimination as well.

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20. This was first established in cases such as CJEU, Case 29/69, Erich Stauder v. City of Ulm, 12 November 1969; CJEU, Case 11/70. Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, 17 December 1970; CJEU, Case 4/73, J. Nold, Kohlen- und Baustoffgroßhandlung v. Commission of the European Communities, 14 May 1974; and regarding the principle of non-discrimination: CJEU, C-149/77, Gabrielle Defrenne v. Société anonyme belge de navigation aérienne Sabena, 5 June 1978.

21. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000, pp. 16–22.

22. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180, 19.7.2000, pp. 22–26.

23. Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, OJ L 373, 21.12.2004, pp. 37–43.

24. Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), OJ L 204, 26.7.2006, pp. 23–36.

25. 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/2008/0426 final.

26. Charter of Fundamental Rights of the European Union, OJ C 202, 7.6.2016, pp. 389–405.

27. See FRA’s website.

28. See EIGE’s website.

29. See Equinet’s website.

Contents

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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