Last Updated on September 22, 2021 by LawEuro
Handbook on European non-discrimination law – Contents
It is possible to view these three grounds as interconnected as they relate to a status imputed to an individual by virtue of an inherited social, economic or biological feature.[604] As such they may also be interrelated with race and ethnicity.
Under EU law, in the following case, the complainants referred to birth as a protected ground.
Example: In Zoi Chatzi v. Ypourgos Oikonomikon,[605] the CJEU examined whether granting only one period of parental leave for twins was discriminatory on the basis of birth, contrary to Article 21 of the Charter of Fundamental Rights. The CJEU held that the rights in the Framework Agreement on parental leave were afforded to parents in their capacity as workers to help them reconcile their parental and professional responsibilities. There was no right relating to parental leave granted to the child, neither in the Framework Agreement nor in the EU Charter. Consequently, there was no discrimination based on birth where only one period of parental leave was given for twins. The CJEU further held that the Framework Agreement could not be interpreted as automatically allowing a separate period of parental leave for each child born. It was acknowledged that the Framework Agreement set down only minimum requirements and that adjustments to the rules could be made where EU Member States allowed more than the minimum three months of required parental leave. However, when adopting measures transposing the Framework Agreement, the EU Member States’ legislatures must keep in mind the principle of equal treatment and ensure that parents of twins receive treatment which takes their needs into account.
Under the ECHR, aside from the ground of ‘birth’, few, if any, cases have been brought before the ECtHR relating to these grounds. In Mazurek v. France,[606] the ECtHR found that the difference in treatment, based solely on the fact of being born out of wedlock, could only be justified by particularly ‘weighty reasons’.
Example: In Wolter and Sarfert v. Germany,[607] the applicants were born out of wedlock. Following the death of their respective fathers, the applicants were recognised as heirs of their fathers’ estate. However, in accordance with national legislation, the applicants could only have inherited it if they were born out of wedlock after 1 July 1949 and if their fathers died after 28 May 2009. The national courts held that the legislation could not apply retrospectively, because of the principle of legal certainty. The applicants complained that they were discriminated against as children born outside of marriage when compared to children born within marriage.
The ECtHR found that, although the legal certainty was a weighty factor, it was not sufficient to prevent the applicants from inheriting their fathers’ estate and made reasonable the relation between proportionality of the means employed and the aim pursued. Consequently, the ECtHR found a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.
Example: In the case of Chassagnou v. France, [608] the applicants complained that they were not permitted to use their land in accordance with their wishes. A law obliged smaller landowners to transfer public hunting rights over their land, while owners of large land were under no such obligation and could use their land as they wished. The applicants wished to prohibit hunting on their land and use it for the conservation of wildlife. The ECtHR found that difference in treatment between large and small landowners constituted discrimination on the basis of property.[609]
Under international law, the grounds of social origin, birth and property also feature under Article 2 (2) of the International Covenant on Economic, Social and Cultural Rights, to which all the EU Member States are party. The Committee on Economic, Social and Cultural Rights, responsible for monitoring and interpreting the treaty has expanded on their meaning in its General Comment 20. [610] According to the Committee, ‘social origin’, ‘birth’ and ‘property’ status are interconnected. Social origin ‘refers to a person’s inherited social status’. It may relate to the position that they have acquired through birth into a particular social class or community (such as those based on ethnicity, religion, or ideology), or from one’s social situation, such as poverty and homelessness. Additionally, the ground of birth may refer to one’s status as born out of wedlock, or being adopted. The ground of property may relate to one’s status in relation to land (such as being a tenant, owner, or illegal occupant), or in relation to other property.
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604. The grounds of social origin, birth and property also feature under Art. 2 (2) of the International Covenant on Economic, Social and Cultural Rights, 1966 (to which all the EU Member States are party). See UN, CESCR (2009), General comment No. 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/GC/20, 2 July 2009, paras. 24-26 and 35.
605. CJEU, C-149/10, Zoi Chatzi v. Ypourgos Oikonomikon, 16 September 2010.
606. ECtHR, Mazurek v. France, No. 34406/97, 1 February 2000.
607. ECtHR, Wolter and Sarfert v. Germany, Nos. 59752/13 and 66277/13, 23 March 2017. See also Fabris v. France [GC], No. 16574/08, 7 February 2013.
608. ECtHR, Chassagnou and Others. v. France [GC], No. 25088/94 and others, 29 April 1999.
609. See also ECtHR, Herrmann v. Germany [GC], No. 9300/07, 26 June 2012.
610. UN, CESCR (2009), General comment No. 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/GC/20, 2 July 2009, paras. 24-26 and 35.
5.6. Race, ethnicity, colour and membership of a national minority
5.7. Nationality or national origin
5.9. Social origin, birth and property
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