3. Justification for less favourable treatment under European non- discrimination law

Handbook on European non-discrimination lawContents

EU Issues covered CoE
Objective justification:

Racial Equality Directive, Art. 2 (2) (b); Employment Equality Directive, Art. 2 (2) (b); Gender Goods and Services Directive, Art. 2 (b); Gender Equality Directive (recast), Art. 2 (1) (b)

Specific grounds of justification:

Justification for less favourable treatment under European non- discrimination law ECHR, Art. 14

(prohibition of discrimination)

Genuine occupational requirement:

Gender Equality Directive (recast), Art. 14 (2); Racial Equality Directive, Art. 4;

Employment Equality Directive, Art. 4 (1)

Religious institutions:

Employment Equality Directive, Art. 4 (2)

Age: Employment Equality Directive, Art. 6
Protection of public safety:

Employment Equality Directive, Art. 2 (5)

CJEU, C-354/16, Kleinsteuber v. Mars GmbH, 2017
CJEU, C-188/15, Bougnaoui and ADDH v. Micropole SA [GC], 2017
CJEU, C-416/13, Vital Pérez v. Ayuntamiento de Oviedo, 2014
CJEU, C-285/98, Kreil v. Bundesrepublik Deutschland, 2000
CJEU, C-207/98, Mahlburg v. Land Mecklenburg- Vorpommern, 2000
CJEU, Case 222/84, Johnston v. Chief Constable of

the Royal Ulster Constabulary, 1986

In certain circumstances, the courts may accept that differential treatment has been carried out but that it is acceptable. The approach to justification under EU law, despite certain differences, is substantially similar to that of the ECtHR.

Under the ECHR, the approach of the ECtHR is to operate a generally phrased justification, in the context of both direct and indirect discrimination. In contrast, under EU law, only specific limited exceptions to direct discrimination are provided for, and a general justification is examined only in the context of indirect discrimination. In other words, under the non-discrimination directives, in cases of alleged direct discrimination, the difference in treatment can only be justified where it is in pursuit of particular aims expressly set out in those directives.

It should be noted that the justification test on objective grounds under the ECHR and the justification test under the exceptions from non-discrimination directives are very similar. Both tests involve the assessment of legitimacy of goals pursued and of the proportionality of the means employed to achieve those goals.

3.1. Application of objective justification under ECHR

Key points

  • Under the ECHR, differential treatment, in cases of alleged direct and indirect discrimination, is subject to objective justification.
  • Differential treatment may be justified where it pursues a legitimate aim and where the means to pursue that aim are appropriate and necessary.

To justify differential treatment, it must be shown:
• that the rule or practice in question pursues a legitimate aim;
• that the means chosen to achieve that aim (that is, the measure which has led to the differential treatment) is proportionate to and necessary to achieve that aim.
To determine whether the differential treatment is proportionate, the court must be satisfied that:
• there is no other means of achieving that aim that imposes less of an interference with the right to equal treatment. Put otherwise, that the disadvantage suffered is the minimum possible level of harm needed to achieve the aim sought;
• the aim to be achieved is important enough to justify this level of interference.

The objective justification is available with regard to both direct and indirect discrimination under the ECHR, According to the ECtHR:

“a difference in the treatment of persons in relevantly similar situa- tions… is discriminatory if it has no objective and reasonable justifica- tion; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”[218]

Accordingly, justified differential treat- ment will not constitute discrimination.

The ECtHR jurisprudence shows that differential treatment relating to matters considered to be at the core of personal dignity, such as discrimination based on

race or ethnic origin, private and family life are more difficult to justify than those relating to broader social policy considerations, particularly where these have fiscal implications. The ECtHR uses in this connection the terminology of the ‘margin of appreciation’, which refers to the state’s sphere of discretion in determining whether differential treatment is to be justified. Where this margin is deemed ‘narrow’, the ECtHR adopts a higher degree of scrutiny.

3.2. Application of the objective justification under EU law

Key point

  • Under EU law, objective justification is available with regard to indirect discrimination.

Under EU law, a similar wording of possible objective justification is used by the EU non-discrimination directives in relation to indirect discrimination. The Racial Equality Directive states:

“[I]ndirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary”.[219]

For example, in a case concerning placing electricity meters at an inaccessible height,[220] the CJEU held that, to justify such practice, the referring court should determine whether there existed other appropriate and less restrictive means to achieve the pursued aims (security of the electricity transmission and the due recording of electricity consumption). If such measures did not exist, such practice would not be disproportionate, only if the inhabitants of the district were prejudiced in having access to electricity in conditions which are not of offensive or stigmatising nature and which do enable them to monitor their electricity consumption regularly.

In the context of employment, the CJEU has been reluctant to accept differential treatment based on reasons of management that are related to the economic concerns of employers, while it is more willing to accept differential treatment based on broader social and employment policy goals with fiscal implications. In cases concerning the latter considerations, the CJEU will accord states a broad

‘margin of discretion’. For instance, the CJEU held that the aim to promote higher education[221] or to compensate the disadvantages of career breaks for bringing up children[222] were legitimate aims that can justify indirect discrimination. In contrast, the CJEU stressed that the aim of restricting public expenditure cannot serve as justification.[223]

The CJEU took similar approaches under the principle of non-discrimination, as guaranteed by the EU Charter of Fundamental Rights. The CJEU indicated that a difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment concerned.[224]

Example: The CJEU offered an in-depth explanation of the idea of objective justification in Bilka – Kaufhaus GmbH v. Weber Von Hartz.[225] Here, part- time employees, who were excluded from the occupational pension scheme of Bilka (a department store), complained that this constituted indirect discrimination against women, since they made up the vast majority of part-time workers. The CJEU found that this would amount to indirect discrimination, unless the difference in enjoyment could be justified. In order to be justified, it would need to be shown that: “the […] measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued, and are necessary to that end”.

Bilka argued that the aim behind the difference in treatment was to discourage part-time work and incentivise full-time work, since part-time workers tended to be reluctant to work in evenings or on Saturdays, making it more difficult to maintain adequate staffing. The CJEU found that this could constitute a legitimate aim. However, it did not answer the question of whether excluding part-time workers from the pension scheme was

proportionate to achieving this aim. The requirement that the measures taken be ‘necessary’ implies that it must be shown that no reasonable alternative means exists which would cause less of an interference with the principle of equal treatment. It was for the national court to apply the law to the facts of the case.

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218. ECtHR, Burden v. the United Kingdom [GC], No. 13378/05, 29 April 2008, para. 60; ECtHR, Guberina v. Croatia, No. 23682/13, 22 March 2016, para. 69.

219. Racial Equality Directive, Art. 2 (b); Employment Equality Directive, Art. 2 (2) (b); Gender Goods and Services Directive, Art. 2 (b); Gender Equality Directive (recast), Art. 2 (1) (b).

220. CJEU, C-83/14, “CHEZ Razpredelenie Bulgaria” AD v. Komisia za zashtita ot diskriminatsia [GC], 16 July 2015, (discussed in detail in Section 2.2.3).

221. CJEU, C-238/15, Maria do Céu Bragança Linares Verruga and Others v. Ministre de l’Enseignement supérieur et de la recherche, 14 December 2016.

222. CJEU, C-173/13, Maurice Leone and Blandine Leone v. Garde des Sceaux, ministre de la Justice and Caisse nationale de retraite des agents des collectivités locales, 17 July 2014.

223. CJEU, Joined cases C-4/02 and C-5/02, Hilde Schönheit v. Stadt Frankfurt am Mein and Silvia Becker v. Land Hessen, 23 October 2003.

224. CJEU, C‑356/12, Wolfgang Glatzel v. Freistaat Bayern, 22 May 2014.

225. CJEU, Case 170/84, Bilka – Kaufhaus GmbH v. Karin Weber Von Hartz, 13 May 1986.

Contents

3. Justification for less favourable treatment under European non- discrimination law

3.1. Application of objective justification under ECHR

3.2. Application of the objective justification under EU law

3.3. Specific grounds of justification under EU law

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