Handbook on European non-discrimination law – Contents
- The ECHR protects all individuals within the jurisdiction of its 47 States Parties.
- Under EU secondary law, the protection is somewhat limited.
A preliminary point should be made on the issue of the beneficiaries of protection under EU law and the ECHR. Under the ECHR, protection is guaranteed to all those within the jurisdiction of a member state, whether they are citizens or not, and even beyond the national territory to those areas under the effective control of the state (such as occupied territories). However, as discussed in Section 5.7, the case law of the ECHR shows that a state may consider nationals and non- nationals to be in distinct situations (and consequently treat them differently under certain circumstances).
Under EU law, Article 18 of the TFEU prohibits ‘any discrimination on grounds of nationality’ so that all nationals and EU citizens could be treated equally within the scope of the Treaties. The aim of Article 18 was to ensure that the principle of equal treatment was being upheld, so as to allow the free movement of persons. This is because the free movement of workers (Article 45) is one of the most important rights provided to individuals within the European Union. Article 18 is to be applied in instances where no other specific rights of non-discrimination exist, and it guarantees the equal treatment of all residents, provided that the situation is governed by EU law.
Although Articles 20 and 21 of the EU Charter are broader, under EU secondary law, the personal scope of the protection is limited. Third-country nationals (TCNs) – citizens of a state that is not a member of the EU – are not protected against unfavourable treatment based on nationality under the non-discrimination Directives. Both the Racial Equality Directive and the Employment Equality Directive state that they do not create any right to equal treatment for TCNs in relation to conditions of entry and residence and in relation to access to employment and occupation. They also state that they do not cover ‘any treatment which arises from the legal status of third-country nationals’. However, apart from those exceptions, prohibition of direct or indirect discrimination based on racial or ethnic origin, as regards the areas covered by the Directives, also applies to TCNs. The Gender Equality Directive (recast), and Gender Goods and Services Directive do not exclude protection for TCNs. Furthermore, TCNs will enjoy a right to equal treatment in broadly the same areas covered by the non-discrimination directives where they qualify as ‘long-term residents’, which requires a period of five years of lawful residence. They may also rely on protection arising from gender equality provisions. In addition, the Family Reunification Directive allows for TCNs resident in a Member State to be joined by family members in certain conditions. They may be protected in certain areas (for instance in employment) under agreements with third countries or under other instruments of EU law, such as Directive 2003/109 EC on long-term legally resident third-country nationals.
Under EU law, these rules do not prevent Member States from introducing more favourable conditions under their own national law. In this respect, the ECHR places obligations on Member States regarding TCNs, which in some cases go beyond the requirements of EU law.
45. ECtHR, Al-Skeini and Others v. the United Kingdom [GC], No. 55721/07, 7 July 2011, para. 138; ECtHR, Loizidou v. Turkey [GC], No. 15318/89, 18 December 1996, para. 52; ECtHR, Mozer v. the Republic of Moldova and Russia [GC], No. 11138/10, 23 February 2016, para. 101.
46. See Art. 3 (2) of both Directive 2000/43/EC and Directive 2000/78/EC.
47. Art. 3 (2) of both Directive 2000/43/EC and Directive 2000/78/EC.
48. Directive 2000/43/EC, Recital 13 and Directive 2000/78/EC, Recital 12.
49. Art. 3 (2) of both Directive 2000/43/EC and Directive 2000/78/EC.
50. Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents, OJ L 16, 23.01.2004, p. 44, Art. 11 (1).
51. Directive 2003/86/EC on the right to family reunification, OJ L 251, 3.10.2003, p. 12.
1.2. Who receives protection under European non-discrimination law?