1.4. Scope of EU non-discrimination law

Handbook on European non-discrimination lawContents

Key points

  • Under EU non-discrimination law, the prohibition on discrimination is free-standing, but it is limited to specific areas.
  • Article 20 of the EU Charter confirms that everyone is equal before the law; Article 21 prohibits any discrimination on an open list of grounds.
  • The principle of non-discrimination can only be applied, where the matter falls within the scope of EU law.
  • Protection under EU non-discrimination directives has a varied scope:
  • protection on the grounds of race and ethnicity is the widest, covering access to employment, welfare systems, and goods and services;
  • sex discrimination is prohibited in the context of access to employment, social security (which is more limited than the broader welfare system), and goods and services;
  • sexual orientation, disability, religion or belief, and age are protected grounds only in the context of access to employment.

Unlike Article 14 of the ECHR, the prohibition of discrimination in Article 21 of the EU Charter of Fundamental Rights is a freestanding right applying to situations that do not need to be covered by any other Charter provision. It prohibits discrimination on ‘any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’. Article 20 of the EU Charter provides that everyone is equal before the law.

It should be noted that the EU Charter makes a distinction between “equality before the law” under Article 20 and non-discrimination under Article 21.[67] Article 20 of the Charter corresponds to a principle, which is included in all European constitutions and has also been recognised by the Court of Justice as a basic principle of Community law.[68] This principle requires states and EU institutions to comply with the requirements of formal equality (treating like cases in a like manner) in framing and implementing EU law. Article 21 embeds non-discrimination into the framework of substantive norms. This is accompanied by a non-exhaustive list of prohibited grounds.

According to the CJEU, the principle of equal treatment is a general principle of EU law, enshrined in Article 20 of the Charter, of which the principle of non-discrimination, laid down in Article 21 (1) of the Charter, is a particular expression.[69]

Example: In Glatzel,[70] the CJEU had to determine whether the EU legislation in question (more severe requirements of visual acuity for drivers of heavy goods vehicles, but not for other drivers) was compatible with Articles 20, 21 (1) and 26 of the EU Charter.

As regards the conformity with Article 21 (1) of the EU Charter, the CJEU stated that the differential treatment of a person with impaired eyesight can be justified by concerns such as road safety, which fulfils an objective of public interest, is necessary and is not a disproportionate burden. Furthermore, the court recalled that Article 20 of the EU Charter aims to ensure inter alia that comparable situations do not receive different treatment. In so far as the situations of two groups of drivers are not comparable, a difference in treatment of the situations concerned does not infringe the right of drivers in one or other of the groups to ‘equality before the law’ in Article 20 of the Charter.

In addition to those Articles, Title III of the EU Charter contains a number of other provisions relating to equality. Article 22 introduces the obligation to respect cultural, religious and linguistic diversity. Article 23 concerns gender equality. Pursuant to Article 24, children have the right to such protection and care as is necessary for their well-being. Article 25 states that the EU recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life. According to Article 26, the EU recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration, and participation in the life of the community. All EU secondary legislation, including the Equality Directives, must comply with the Charter.

Example: In Association Belge des Consommateurs Test-Achats ASBL and Others v. Conseil des ministres[71] (discussed in Section 5.1), the CJEU found that an exception in the Gender Goods and Services Directive permitting differences in the insurance premiums and benefits between men and women was invalid. The Court relied on Articles 21 and 23 of the Charter of Fundamental Rights.

However, the principle of non-discrimination can only be applied where the matter falls within the scope of Union law.

Example: In Bartsch,[72] the CJEU clarified that where the allegedly discriminatory treatment contains no link with EU law, the application of the principle of non-discrimination is not mandatory. In this case, the employee died on 5 May 2004, i.e. before the expiry of the deadline for implementation of Directive 2000/78/EC (December 31 2006), leaving a widow who was 21 years younger. The employer’s occupational pension scheme excluded the surviving spouse’s right to the pension, if they are more than 15 years younger than the deceased employee. The CJEU ruled that the case did not fall within the scope of Union law because, on the one hand, the guidelines of the occupational pension scheme could not be considered as an implementation measure of Directive 2000/78/EC, and at the time, the deadline for implementation of the directive had not expired.

The Equality Directives differ in terms of protected groups and the areas in which discrimination is prohibited.

The Racial Equality Directive (2000/43/EC) prohibits discrimination on grounds of race or ethnic origin in employment, vocational training, membership of employer and employee organisations, social protection, including social security and healthcare, social advantages, education, and access to and supply of goods and services, including housing. It covers all natural persons within the EU. However, there are two restrictions on its scope of application. First, it only applies to such goods and services that are available to the public. Second, it does not apply to differential treatment based on nationality and is without prejudice to provisions governing the entry, residence and employment of third country nationals.

Example: In Servet Kamberaj v. IPES and Others,[73] an application for housing benefit submitted by a third-country national was refused owing to the exhaustion of the funds for third-country nationals. The CJEU held that difference in treatment was based on the complainant’s status as a third- country national and therefore it did not fall within the scope of Racial Equality Directive.

The Employment Equality Directive (2000/78/EC) prohibits discrimination on the basis of sexual orientation, religion and belief, age and disability in the area of employment, occupation and related areas such as vocational training and membership of employer and employee organisations. Similar to the Racial Equality Directive, the Employment Equality Directive applies to persons within the EU, and to both the public and private sectors, but it does not cover nationality-based discrimination. It also provides a number of specific exceptions from the application of its provisions.[74]

The Gender Goods and Services Directive (2004/113/EC) provides for protection against discrimination on the grounds of sex regarding access to and supply of goods and services. It covers all persons and organisations (both in the public and private sectors) that make goods and services available to the public and/or goods and services offered outside the area of private and family life. It excludes the following from its scope of application: media content, advertisement and education. Furthermore, it does not apply in the field of employment and self-employment.

The Gender Equality Directive (recast) (2006/54/EC) guarantees equal treatment on grounds of sex in matters of pay (Article 4), occupational social security schemes (Article 5), and access to employment, vocational training and promotion and working conditions (Article 14).

Further legal acts promote gender equality, in the area of state social security (Directive 79/7/EEC),[75] equal treatment between self-employed men and women (Directive 2010/41/EU),[76] relating to pregnancy (Directive 92/85/EEC)[77] and parental leave (Directive 2010/18/EU).[78]

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67. See, for example, FRA (2012), FRA Opinion on proposed EU regulation on property consequences of registered partnerships, FRA Opinion, 1/2012, 31 May 2012, which looks at ‘Discrimination (Article 21 of the Charter)’ (Section 2.1) and ‘Equality before the law (Article 20 of the Charter)’ (Section 2.2).

68. CJEU, 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, 19 October 1977; CJEU, Case 283/83, Firma A. Racke v. Hauptzollamt Mainz, 13 November 1984; CJEU, C-292/97, Kjell Karlsson and Others, 13 April 2000.

69. CJEU, C-356/12, Wolfgang Glatzel v. Freistaat Bayern, 22 May 2014, para. 43.

70. CJEU, C-356/12, Wolfgang Glatzel v. Freistaat Bayern, 22 May 2014.

71. CJEU, C-236/09, Association Belge des Consommateurs Test-Achats ASBL and Others v. Conseil
des ministres [GC], 1 March 2011.

72. CJEU, C-427/06, Birgit Bartsch v. Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH [GC], 23 September 2008.

73. CJEU, C-571/10, Servet Kamberaj v. Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES) and Others [GC], 24 April 2012.

74. See Chapters 2 and 3.

75. Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, OJ L 6, 10.1.1979, pp. 24–25.

76. Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC, OJ L 180, 15.7.2010, pp. 1–6.

77. Council Directive 92/85/EEC of 19 October 1992 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, OJ L 348, 28.11.1992, pp. 1–7.

78. Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC, OJ L 68, 18.3.2010, pp. 13–20.

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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