Handbook on European non-discrimination law – Contents
Under EU law, although the Racial Equality Directive does exclude ‘nationality’ from the concept of race or ethnicity, the CJEU interpreted the concept of ethnicity according to Article 14 of the ECHR as having “its origin in the idea of societal groups marked in particular by common nationality, religious faith, language, cultural and traditional origins and backgrounds”.
Example: In Feryn, the CJEU held that statements made public by an employer that he could not employ ‘immigrants’ constituted direct discrimination in respect of recruitment within the meaning of the Racial Equality Directive.
Apart from expressly excluding nationality, the Racial Equality Directive (2000/43/EC) does not itself contain a definition of ‘racial or ethnic origin’. There are a number of other instruments, which offer guidance as to how racial and ethnic origin should be understood. Neither ‘colour’ nor membership of a national minority are listed expressly in the Racial Equality Directive, but are listed as separate grounds under the ECHR. These terms appear to be indissociable from the definition of race and/or ethnicity, and so will be considered here.
The EU Council’s Framework Decision on combating racism and xenophobia under criminal law defines racism and xenophobia to include violence or hatred directed against groups by reference to ‘race, colour, religion, descent or national or ethnic origin’. The CoE European Commission Against Racism and Intolerance (ECRI) has also adopted a broad approach to defining ‘racial discrimination’, which includes the grounds of ‘race, colour, language, religion, nationality or national or ethnic origin’. Similarly, Article 1 of the 1966 UN Convention on the Elimination of Racial Discrimination (to which all the Member States of the European Union and the Council of Europe are party) defines racial discrimination to include the grounds of ‘race, colour, descent, or national or ethnic origin’. The Committee on the Elimination of Racial Discrimination, responsible for interpreting and monitoring compliance with the treaty, has further stated that unless justification exists to the contrary, determination as to whether an individual is a member of a particular racial or ethnic group “shall […] be based upon self-identification by the individual concerned.” This prevents the state from excluding from protection any ethnic groups whom it does not recognise.
Although EU law does not expressly list language, colour or descent as protected grounds, it does not mean that these characteristics could not be protected as part of race or ethnicity, in so far as language, colour and descent are inherently attached to race and ethnicity. It would also seem that to the extent that factors determining nationality are also relevant to race and ethnicity, the former ground may, in appropriate circumstances, also fall under the latter grounds.
Example: Discrimination on the basis of ethnic origin is the subject matter of the proceedings in “CHEZ Razpredelenie Bulgaria” AD v. Komisia za zashtita ot diskriminatsia (discussed in Section 2.2.3). The complainant argued that the placement of electricity meters at an inaccessible height put her in a disadvantageous position compared with other customers whose metres were in accessible locations. The only reason for installing electricity meters at height was – according to her allegations – that most of the inhabitants of the district were of Roma origin. Relying on this consideration, the CJEU found that the Racial Equality Directive (2000/43/EC) applies to the policy of the electricity supplier in this case. It was for the Bulgarian court to decide whether the practice could be objectively justified.
Religion is expressly protected as a separate ground under the Employment Equality Directive (2000/78/EC). However, an alleged victim of religious discrimination may have an interest in associating religion with the ground of race because, as EU law currently stands, protection from race discrimination is broader in scope than protection from religious discrimination: the Racial Equality Directive relates to the area of employment but also to access to goods and services, while the Employment Equality Directive only relates to the area of employment.
Under the ECHR, nationality or ‘national origin’ are listed as a separate grounds. The case law discussed below shows that nationality can be understood as a constitutive element of ethnicity. In explaining the concepts of race and ethnicity, the ECtHR has held that language, religion, nationality and culture may be indissociable from race. In the Timishev case, an applicant of Chechen origin was not permitted to pass through a checkpoint, because the guards were instructed to deny entry to persons of Chechen origin. The ECtHR gave the following explanation:
“Ethnicity and race are related and overlapping concepts. Whereas the no- tion of race is rooted in the idea of biological classification of human beings into subspecies according to morphological features such as skin colour or facial characteristics, ethnicity has its origin in the idea of societal groups marked by common nationality, tribal affiliation, religious faith, shared language, or cultural and traditional origins and backgrounds.”
Example: In Boacă and Others v. Romania, the applicants are the heirs of a Roma man, allegedly beaten by the police and discriminated against because of his ethnic origins. The ECtHR found that the national authorities have failed in their obligation to investigate the racist motivation of crimes and found a violation of Article 14 read in conjunction with Article 3 (procedural limb) of the ECHR.
Example: In Sejdić and Finci v. Bosnia and Herzegovina,  the first case to be decided under Protocol No. 12, the applicants complained that they are unable to stand in elections. As part of a peace settlement to bring an end to the conflict in the 1990s, a power sharing agreement between the three main ethnic groups was reached. This included an arrangement that any candidate standing for election has to declare their affiliation to the Bosniac, Serb or Croat community. The applicants who are of Jewish and Roma origin refused to do so and alleged discrimination on the basis of race and ethnicity. The ECtHR repeated the abovementioned explanation of the relationship between race and ethnicity and added that “[d]iscrimination on account of a person’s ethnic origin is a form of racial discrimination”. The ECtHR finding of racial discrimination illustrates the interplay between ethnicity and religion. Furthermore, the ECtHR found that despite the delicate terms of the peace agreement this could not justify such discrimination.
The ECtHR has been extremely strict regarding discrimination based on race or ethnicity stating: “no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures”. Sometimes it may, however, be difficult to identify the relevant discrimination ground because the same facts can be seen from two different perspectives. Dependent on whether ethnic origin is the reason or not for the differential treatment, the conclusion might be different.
Example: In Biao v. Denmark, the applicants, a naturalised Danish citizen of Togolese origin living in Denmark and his Ghanaian wife, complained that their request for family reunification in Denmark was rejected for non- compliance with statutory requirements. According to Danish law, the permit would be granted if they could demonstrate that their aggregate ties to Denmark were stronger than their attachment to any other country, or if they had held Danish citizenship for at least 28 years. The Grand Chamber held that the relevant rule constituted a difference in treatment between Danish citizens of Danish origin and those of non-Danish origin. Referring to the European Convention on Nationality and a certain trend towards a European standard, the ECtHR noted that there were no other states which distinguished between nationals from birth and other nationals, including naturalised persons when it came to the determination of the conditions for granting family reunification. In the ECtHR’s view, such a rule “places at a disadvantage, or has a disproportionately prejudicial effect on persons who acquired Danish nationality later in life and who were of ethnic origins other than Danish.” In conclusion, the ECtHR found a violation of Article 14, read in conjunction with Article 8 of the ECHR.
Under the ESC, references to race, ethnicity, colour and membership of a national minority as protected ground can be also found in the jurisprudence of the ECSR.
Example: In European Roma Rights Centre (ERRC) v. Ireland,  the ECSR found that special consideration should be given to the needs and different lifestyle of Irish Travellers554 who are vulnerable minority. In conclusion, it held that Ireland violated Article 16 of the ESC by failing to provide sufficient accommodation to Travellers (such as permanent halting sites, group housing and transient halting sites). The ECSR stressed that failure to provide sufficient accommodation for Travellers may also amount to discrimination if the authorities fail to “take adequate steps to ensure that the rights and collective advantages that are open to all are genuinely accessible by and to all”. However, the ECSR found no violation of Article E. It held that although there were still insufficient number of adequate accommodation for Travellers, the authorities showed their efforts to respond to the specific needs of the Travelling community.
Example: In ERRC v. Portugal, the European Roma Rights Centre (ERRC) asked the ECSR to hold that the access to social housing, substandard quality of housing, lack of access to basic utilities, residential segregation of Romani communities and other systemic violations of the right to housing amounted to a violation of several rights protected by the revised ESC. The ECSR unanimously held that there was a violation of Article E (non-discrimination), in conjunction with Article 31 (1) (failure to promote housing of an adequate standard), Article 16 (the right of the family to social, legal and economic protection) and Article 30 (the right to protection against poverty and social exclusion).
Under international law, the International Convention on the Elimination of All Forms of Racial Discrimination prohibits discrimination based on race, colour, descent, or national or ethnic origin. Other international instruments also prohibit discrimination based on race, colour and national origin.
In international law the term ‘racial discrimination’ means any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
540. CJEU, C-83/14, “CHEZ Razpredelenie Bulgaria” AD v. Komisia za zashtita ot diskriminatsia [GC], 16 July 2015, para. 46.
541. CJEU, C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feryn NV, 10 July 2008.
542. ECRI, General Policy Recommendation No. 7 on National Legislation to Combat Racism and Racial Discrimination, CRI (2003)8, adopted 13 December 2002, paras. 1 (b) and (c).
543. UN, GA (1966), Convention on the Elimination of All Forms of Racial Discrimination (CERD), UNTS vol. 660, p. 195.
544. UN, Committee on the Elimination of All Forms of Racial Discrimination (1990), General Recommendation VIII concerning the interpretation and application of Article 1, Paragraphs 1 and 4 of the Convention, Doc. A/45/18, 22 August 1990.
545. CJEU, C-83/14, “CHEZ Razpredelenie Bulgaria” AD v. Komisia za zashtita ot diskriminatsia [GC], 16 July 2015.
546. ECtHR, Timishev v. Russia, Nos. 55762/00 and 55974/00, 13 December 2005, para. 55.
547. ECtHR, Boacă and Others v. Romania, No. 40355/11, 12 January 2016.
548. Compare also ECtHR, Škorjanec v. Croatia, No. 25536/14, 28 March 2017 (discussed in Section 2.6).
549. ECtHR, Sejdić and Finci v. Bosnia and Herzegovina [GC], Nos. 27996/06 and 34836/06, 22 December 2009.
550. Ibid., para. 44. Similarly, ECtHR, Timishev v. Russia, Nos. 55762/00 and 55974/00, 13 December 2005, para. 58.
551. ECtHR, Biao v. Denmark [GC], 38590/10, 24 May 2016.
552. Ibid., para. 138.
553. ECSR, European Roma Rights Centre (ERRC) v. Ireland, Complaint No. 100/2013, 1 December 2015.
554. For the purposes of the various anti-discrimination laws, Irish Travellers are considered an ethnic group. See for example UN, Committee on the Elimination of Racial Discrimination (2005), Concluding Observations on Ireland, CERD/C/IRL/CO/2, 14 April 2005, para. 20.
555. Ibid., para. 69.
556. See also ECSR, European Roma and Travellers Forum (ERTF) v. Czech Republic, Complaint No. 104/2014, 17 May 2016.
557. ECSR, European Roma Rights Centre (ERRC) v. Portugal, Complaint No. 61/2010, 30 June 2011. See also ECSR, Centre on Housing Rights and Evictions (COHRE) v. Italy, Complaint No. 58/2009, decision on the merits of 26 June 2010.
558. ICCPR, Art. 2, 4 and 26; ICESCR, Art. 2; CRC, Art. 2, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Art. 1 and 7.
559. ICERD, Art. 1, para. 1.
5.6. Race, ethnicity, colour and membership of a national minority